Smith v. State, 30348
| Decision Date | 06 January 1976 |
| Docket Number | No. 30348,30348 |
| Citation | 236 Ga. 5,222 S.E.2d 357 |
| Parties | Skippy SMITH v. The STATE. |
| Court | Georgia Supreme Court |
Stephen A. Land, Atlanta, H. G. Bozeman, Dublin, for appellant.
B. B. Hayes, Dist. Atty., Dublin, Arthur K. Bolton, Atty. Gen., G. Stephen Parker, Asst. Atty. Gen., Atlanta, for appellee.
Defendant appeals his conviction by a jury of kidnapping with bodily injury and sentence to life imprisonment. A motion for new trial was denied. The main issues on appeal involve the admission into evidence of a lineup identification, restriction of cross examination as to the composition of the lineup, a court instruction during the trial as to the victim's presumption of sanity, and challenges to the instructions of the court on alibi and other matters.
Evidence introduced at trial established the following facts: On the night of Saturday, June 15, 1974, a 60 year old widow was alone at home when a car pulled into the drive at approximately 10:30 or 10:45 according to her calculations. Thinking it was her son, she opened the door to a young man who stated that he was 'Doc Smith's boy.' This person first determined that she possessed neither a telephone nor a gun, then grabbed her and forced her out of the house and into his car by twisting her arm behind her back. At the same time he stated that he meant to kill her. He continued to threaten her as he drove to an abandoned lot, telling her that he was avenging the death of his father.
The assailant stopped the car on a dirt road near a vacant lot and attacked the victim, apparently attempting to rape her. She testified at trial that he tore between her legs with his fingers, resulting in bleeding and lacerations. When he released his grip momentarily to undo his pants, she escaped from the car and hid in the underbrush while the assailant drove back and forth three times looking for her. The victim estimated that this entire episode lasted about 30 minutes, that the trip from her home to the place she escaped took about 15 minutes and that her assailant looked for her about 10 minutes. The distance from the victim's home to the vacant lot was about 2 miles.
The victim testified that she ran the half mile to the highway and after hiding from passing cars eventually entered a building located nearby. A few seconds later the telephone rang. The victim answered the phone and told the caller, a Mrs. Evans, that she needed help. Mr. Evans was notified of the victim's plight at approximately 1:40 a.m. On the way to the farmhouse, he picked up the victim's son. Both men went to the farmhouse and found the victim, who stated that her arm was hurt but made no other statement as to her injuries. She returned to her home with her son.
Two deputy sheriffs interviewed the victim about 2:20 a.m. She told them she had been kidnapped by a young white male of medium build, with blond hair, an outstanding jawbone, fair complexion, and wearing a navy blue shirt and a white belt. She also told the officers her assailant had identified himself as 'Doc Smith's boy.' At trial she testified that her assailant had smelled strongly of whiskey. Officer McClendon testified at trial that the victim appeared nervous and in pain at the time of their investigation.
The officers investigated the area of the alleged attack and testified as to the marks and footprints found there. They then proceeded to the residence of Doc Smith and took the defendant, Skippy Smith, into custody. The defendant was instructed to dress himself in the clothes he had worn the preceding night which were lying beside the bed-a navy blue shirt, dark pants and a white belt. The deputies testified that they told the defendant at the time he was taken into custody that he was a suspect in the case and advised him of his constitutional rights. The defendant then went to the sheriff's office with the deputies.
On Sunday afternoon, June 16, the defendant was placed in a lineup with 4 other men and was identified immediately by the victim. A hearing was held on a motion to suppress evidence of the lineup identification, and the motion was denied.
At trial the victim identified the defendant as her assailant. She testified that she did not seek medical treatment for her injuries at once because she was embarrassed. She stated that she went to a doctor on Tuesday, June 18, and on a subsequent occasion for treatment for vaginal lacerations.
One alibi witness testified that the defendant left her trailer at 10:00 or 10:15 that night. Five alibi witnesses testified that they saw him on the night of the attack at various times between 10:00 and 11:00 at a dance about 17 miles from the area of the attack. One of these witnesses testified that the defendant left the dance 'somewhere before twelve o'clock;' another testified that she saw him going to his car at the 'eleven o'clock break.' The defendant did not testify.
1. The defendant alleges that the trial court erred in its denial of the motion to suppress evidence of the victim's identification in that the lineup was impermissibly suggestive. As support for his position he cites testimony adduced at the hearing on the motion to suppress to the effect that he was the only blond male in the lineup, that he was the only person who had a prominent jawbone and was cleanshaven, and that he was the only person dressed in a manner similar to the victim's description of her assailant. He further contends that he was forced to turn sideways while the other lineup participants remained in frontal positions and that this had the effect of pointing him out to the victim.
It is clear from the victim's testimony that she had ample opportunity to view her assailant during a face-to-face confrontation with him in her lighted living room for an estimated five minutes before she was abducted. She provided the officers with a fairly detailed description of her assailant. The photograph introduced into evidence as an accurate and true representation of the lineup shows that four of the men, including the defendant, were of similar heights and weights, one was wearing dark pants and another was wearing a dark shirt. The victim identified the defendant unequivocally as her assailant immediately upon viewing the lineup. Apparently she requested a profile view in order to be sure of his identification after she had indicated that the defendant was the man who had attacked her.
Assuming that the defendant's contention that the lineup was suggestive has arguable merit, considering the totality of the circumstances, we find no substantial likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). See also Yancey v. State, 232 Ga. 167, 205 S.E.2d 282 (1974). The victim's identification of the defendant was properly admitted at trial.
2. Defense counsel cross examined a deputy concerning a color photograph taken of the lineup. The defendant contends that the trial court erred in restricting his cross examination by sustaining the district attorney's objection, based on the best evidence rule, to the question: 'What color hair does number one have?'
It is true, as defendant urges, that the best evidence rule is a rule which is designed to give preferential treatment to the original writing when the contents of a writing are sought to be proved. Munsford v. State,235 Ga. 38, 42, 218 S.E.2d 792 (1975); Willingham v. State, 134 Ga.App. 603(3), 215 S.E.2d 521 (1975). The rule therefore is not applicable to this photograph. However, in the case at bar other testimony as to the color of the hair of the participants in the lineup was admitted into evidence. The defendant has failed to show harm constituting grounds for reversal.
3. On cross examination of the victim, the defense showed that the victim had been a patient at Central State Hospital for six months in 1958 and at an earlier time. The District Attorney objected. The trial court overruled the objection, saying: ...
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