Roebuck v. State

• Decision Date: 22 September 2003
• Docket Number: No. S03A0860.,S03A0860.
• Citation: 277 Ga. 200,586 S.E.2d 651
• Parties: ROEBUCK v. The STATE.
• Court: Georgia Supreme Court

586 S.E.2d 651

277 Ga. 200

ROEBUCK v. The STATE.

No. S03A0860.

Supreme Court of Georgia.

September 22, 2003.

Reconsideration Denied October 17, 2003.

Charles H. Frier, Atlanta, for appellant.

Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Christopher M. Quinn, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Jill M. Zubler, Asst. Atty. Gen., for appellee. CARLEY, Justice.

In 1985, Charles Boyd was fatally stabbed in an altercation with three passengers in his car. Anthony Hill and Willie Terrell were convicted of murder, and the convictions and life sentences were affirmed on appeal. Terrell v. State, 258 Ga. 722, 373 S.E.2d 751 ( 1988). Attempts to identify the third participant in the homicide were unsuccessful until 1994, when a previously unmatched print lifted from the victim's automobile was shown to be that of "Demetrius Jones," an alias that the State contends was used by Appellant Gregory Roebuck. Thereafter, Hill gave a statement, in which he exonerated Terrell and implicated Appellant and Adrian Smith as the other two passengers in Mr. Boyd's car. Eventually, the trial court granted an extraordinary motion for new trial filed by Terrell, and the State dropped the murder charge against him. Smith was never charged with the crime because he died in an unrelated shooting. In 1999, Appellant was indicted for killing Mr. Boyd. A jury found him guilty of malice murder, and the trial court imposed a sentence of life imprisonment. After the denial of a motion for new trial, Appellant brings this appeal.¹

1. Hill testified as a witness for the prosecution. To authorize Appellant's conviction, the State was required to produce at least slight evidence to corroborate Hill's identification of him as one of the three participants in the crime. Chergi v. State, 234 Ga.App. 548, 550(4), 507 S.E.2d 795 (1998). Appellant urges that it failed to do so.

An expert witness testified that he matched a print lifted from the victim's vehicle with the print of an individual identified as Gregory Roebuck. According to Appellant, the latter print was never shown to be his. However, "`[c]oncordance of name alone is some evidence of identity. Identity of name presumptively imports identity of person, in the absence of any evidence to the contrary.' [Cit.]" Gibson v. State, 243 Ga. App. 610, 612(2)(b), 533 S.E.2d 783 (2000). The defense never disputed that Appellant was the individual whose print was matched by the expert, and thereby impliedly conceded that he was that person. See Lewis v. State, 234 Ga.App. 873, 877(4), 508 S.E.2d 218 (1998). He relies upon the fact that, at one point, the witness indicated that the name of the individual "appears to be Gregory Roebuck, R-O-E—I think it's T-U-C-K or H. I can't read my writing there." However, this small equivocation is immaterial, since the witness on every other occasion identified the matching print as belonging to a person named Roebuck. Resolving evidentiary conflicts and inconsistencies is the province of the fact-finder. Hampton v. State, 272 Ga. 284, 285(1), 527 S.E.2d 872 (2000). Moreover, the print card was admitted into evidence without objection, and the jury could determine for itself whether it was labeled with the name "Gregory Roebuck." See California Ins. Co. v. Blumburg, 101 Ga.App. 587, 591(2), 115 S.E.2d 266 (1960) (proper reading of an obscurely written word is for the jury). Under the circumstances, the uncontested testimony of the expert shows that he matched a print lifted from Mr. Boyd's automobile to Appellant's print. See Hardrick v. State, 96 Ga.App. 670, 672(4), 101 S.E.2d 99 (1957).

Appellant contends that the print card is hearsay, because it was never formally tendered and admitted as a business record. However, the testimony of the expert is what connects Appellant to the crime, and admissibility of that inculpatory testimony does not depend upon the admission of the print used by the witness to compare with the one taken at the murder scene. McCoy v. State, 237 Ga. 118, 120, 227 S.E.2d 18 (1976). See also Turner v. State, 235 Ga. 826, 829(1), 221 S.E.2d 590 (1976); W.B.S. v. State, 163 Ga.App. 471, 472(1), 294 S.E.2d 705 (1982). Even if the failure to proffer the print card as a business record renders it hearsay, the rule in this state is that "[a]n expert ... may base his opinion on hearsay. The presence of hearsay does not mandate the exclusion of the testimony; rather, the weight given the testimony is a question for the jury. [Cit.]" Cheek v. Wainwright, 246 Ga. 171, 174(3), 269 S.E.2d 443 (1980). See also King v. Browning, 246 Ga. 46, 47-48(1), 268 S.E.2d 653 (1980); Orkin Exterminating Co. v. McIntosh, 215 Ga.App. 587, 592-593(4), 452 S.E.2d 159 (1994); Jones v. Ray, 159 Ga.App. 734, 736(4), 285 S.E.2d 42 (1981). Any decision, such as Redwing Carriers v. Knight, 143 Ga.App. 668, 672(6), 239 S.E.2d 686 (1977), which holds that an expert's reliance upon hearsay affects the admissibility, rather than the weight of his or her opinion, is erroneous and is hereby overruled.

Although it was never admitted as a business record, the print card was relevant as the basis for the expert's conclusion that Appellant's print matched that taken from the victim's vehicle.

An expert may base his opinion on hearsay and may be allowed to testify as to the basis for his findings. [Cits.] When a expert's testimony is based on hearsay, the lack of personal knowledge on the part of the expert does not mandate the exclusion of the opinion but, rather, presents a jury question as to the weight which should be assigned the opinion. The evidence should go to the jury for whatever it's worth. [Cits.]

King v. Browning, supra at 47-48, 268 S.E.2d 653. "[W]here an expert personally observes data collected by another, his opinion is not objectionable merely because it is based, in part, on the other's findings. [Cits.]" Millar Elevator Service Co. v. O'Shields, 222 Ga.App. 456, 457(1), 475 S.E.2d 188 (1996). Having heard the expert's unrebutted testimony about the matching prints and having considered the basis from which the witness formed that opinion, the jury was authorized to find that Appellant was one of the three occupants of the car. See Knight v. State, 185 Ga.App. 619, 621(2), 365 S.E.2d 484 (1988). Accordingly, that fingerprint evidence "served to corroborate the conspirator's testimony." Turner v. State, supra at 829(1), 221 S.E.2d 590.

According to the special concurrence, the expert's testimony, standing alone, was not sufficient to connect Appellant to the crime. However, in McCoy v. State, supra at 120, 227 S.E.2d 18, we held that an expert was authorized to testify that fingerprints matched, even though the exemplar print of the accused was never introduced. This case is not materially different. Here, the print that the expert used in the comparison was otherwise shown to be that of Appellant, because it bore his name and he did not deny that it was his. "Concordance of name alone is some evidence of identity." OCGA § 24-4-40(a). If the opinion testimony, standing alone, was relevant and probative in McCoy, then it is likewise independently relevant and probative in this case. See also Turner v. State, supra at 829(1), 221 S.E.2d 590; W.B.S. v. State, supra at 472(1), 294 S.E.2d 705. McCoy differs only in that here the card bearing Appellant's name was actually introduced into evidence. However, if introduction of the print card was not necessary to the admission of the expert's opinion testimony in McCoy, then certainly its introduction without objection in this case does not negate the independent relevancy of that testimony.

The special concurrence further characterizes the print card as inadmissible hearsay. However, even assuming that it is hearsay, it still can constitute the basis for an expert's opinion in this state. Cheek v. Wainwright, supra at 171, 174(3), 269 S.E.2d 443. Whether or not it is admissible hearsay is not before us, because Appellant never objected to its introduction. See King v. Browning, supra at 47(1), 268 S.E.2d 653. Compare Loper v. Drury, 211 Ga.App. 478, 481(1)(b), 440 S.E.2d 32 (1993).

Under the special concurrence's analysis, no expert can ever give a probative opinion that two fingerprints match unless and until the accused's exemplar print is formally introduced as a business record or is admitted under some other exception to the hearsay rule. That is not the law of Georgia. An expert can give an opinion based upon a comparison between a print taken from the scene of the crime and one which, even though never introduced into evidence, is otherwise identified as that of the defendant. McCoy v. State, supra at 120, 227 S.E.2d 18. Here, the expert testified that a fingerprint lifted from the victim's car matched a print which bore Appellant's name. Appellant did not dispute that the exemplar print was his, and did not raise a hearsay objection to admission of the evidence upon which the expert's opinion was based. Under these circumstances, there is no reason to reconsider Georgia's long-standing rule that inadmissible hearsay lacks probative value even though the opposing party does not object to its introduction. That rule does not apply under the facts of this case, because the expert's opinion is independently probative notwithstanding any reliance on unobjected to hearsay.

When all of the evidence, including the corroborative fingerprint evidence, is construed most strongly in support of the verdict, it is sufficient to authorize a rational trier of fact to find proof of Appellant's guilt of murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant also urges that the State failed to show that the fingerprints identified as those of "Demetrius Jones" were his. Those prints are separate and distinct from the ones identified as Gregory Roebuck's and discussed in Division 1. Therefore, error, if...