Smith v. State
| Decision Date | 05 February 1980 |
| Docket Number | No. 35511,35511 |
| Citation | 263 S.E.2d 910,245 Ga. 168 |
| Parties | SMITH v. The STATE. |
| Court | Georgia Supreme Court |
G. Keith Murphy, Moultrie, for appellant.
H. Lamar Cole, Dist. Atty., Arthur K. Bolton, Atty. Gen., for appellee.
Gene Lamar Smith appeals his convictions for murder and burglary, for which he was sentenced, respectively, to life imprisonment and twenty years to be served consecutively. The state had sought the death penalty.
1. He first contends that the testimony of his accomplice that he fired the fatal shots was not sufficiently corroborated and that the evidence is insufficient to support the verdict. The accomplice, Shirley Jean Baker, testified as to her presence at the scene of the burglary and the homicide. She described the struggle between Smith and the deceased, Elton DeWitt "Pete" Bostick, a special deputy sheriff in Mitchell County, who stopped his vehicle to investigate what he had perceived to be a burglary in progress at the Allan White residence. She testified that Bostick reached for a high-powered rifle in his vehicle but that Smith got the firearm and shot Bostick with it. According to the testimony of one of the investigating officers, Smith's attempted alibi was that he was in a motel in Tifton, Georgia, with Shirley Jean Baker on the date of the burglary and homicide but registration cards from the motel tended to show that they had been together at the motel during the weekend immediately before the murder.
Smith and Baker submitted themselves to polygraph tests. Baker responded affirmatively during her polygraph test when asked whether she knew who shot Bostick, whether Smith shot Bostick, and whether she was present when Bostick was shot. The examiner gave his opinion that these responses were truthful. Smith responded in the negative when asked during his polygraph test whether he knew who shot Bostick, whether he had shot Bostick, and whether he knew what happened to the weapon. The examiner gave his opinion that these responses were not truthful. Evidence as to the tests, the results of the tests, and the opinions of the examiner was presented to the jury under a stipulation between the state and the defense "that the tests, results and opinion of the examiner, Cecil Franklin, shall be admissible as evidence upon any hearing or trial of the Defendants above named by either or both parties." The "Defendants" to whom the stipulation refers were the appellant, Gene Lamar Smith, and his brother, Danny Smith, who was tried separately.
Smith contends that the polygraph evidence is the only possible corroborating evidence in the case and that it should not be deemed sufficient corroboration because the opinion of the examiner that Shirley Jean Baker spoke truthfully when she stated that Smith shot Bostick is not independent of the testimony of Shirley Jean Baker, the accomplice. He relies on West v. State, 232 Ga. 861, 209 S.E.2d 195 (1974).
Carter v. State, 237 Ga. 617, 618, 229 S.E.2d 411, 413 (1976).
Contrary to the contention of the parties, this court is not faced in the present case with a decision as to whether or not the examiner's opinion about the truthfulness of Baker's and Smith's responses during their polygraph tests is sufficient to corroborate Baker's testimony that Smith shot Bostick. See in this regard State v. Chambers, 240 Ga. 76, 239 S.E.2d 324 (1977). Testimony regarding Smith's attempted alibi that he was with Baker in the motel on the date of the homicide is some evidence of an attempt by Smith to conceal his participation in the crime. Evidence from an independent source of an attempt by the accused to conceal his participation in a crime is sufficient to corroborate the testimony of the accused's accomplice relating to the accused's participation in the crime. Llewellyn v. State, 241 Ga. 192, 193(1), 243 S.E.2d 853 (1978). The trial court did not err in denying the motion for a directed verdict of acquittal.
There is no merit to Smith's assertion that the evidence is not sufficient to support the verdict. When viewed in the light most favorable to support the verdict, the evidence was sufficient to enable a rational trier of the facts to find Smith guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Smith next enumerates as error the failure of the trial court to grant his motion to set bond. He contends that "if he had been allowed to be released from jail, in some manner, he could possibly have located witnesses, records or memorabilia showing that he could not have been present at the scene on November 6, 1978." Because Smith was charged with murder, denial of bail was within...
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