Stubbs v. State

• Decision Date: 20 November 1995
• Docket Number: No. S95G0660,S95G0660
• Citation: 463 S.E.2d 686,265 Ga. 883
• Parties: STUBBS v. The STATE.
• Court: Georgia Supreme Court

Page 686

463 S.E.2d 686

265 Ga. 883

STUBBS v. The STATE.

No. S95G0660.

Supreme Court of Georgia.

Nov. 20, 1995.

Lewis R. Lamb, Musgrove & Lamb, Albany, for Stubbs.

Gregory W. Edwards, Asst. Dist. Atty., Albany, Britt R. Priddy, Dist. Atty., Albany, for State.

THOMPSON, Justice.

We granted certiorari to the Court of Appeals in Stubbs v. State, 215 Ga.App. 873, 452 S.E.2d 571 (1994), to reexamine this issue: When is a trial court required to give a jury charge on circumstantial evidence in a criminal trial and what should the charge say? We reiterate our holding in previous cases: If the State's case includes both direct and circumstantial evidence, the trial court must charge on the law of circumstantial evidence upon request; if the State's case is composed solely of circumstantial evidence, the trial court must charge on the law of circumstantial evidence even without a request. In either case, the trial court's charge on the law of circumstantial evidence should follow OCGA § 24-4-6. Yarn v. State, 265 Ga. 787, 462 S.E.2d 359 (1995); Mims v. State, 264 Ga. 271, 443 S.E.2d 845 (1994); Robinson v. State, 261 Ga. 698, 410 S.E.2d 116 (1991).

Stubbs was convicted of burglary and possession of tools for the commission of a crime. ¹ He did not request a charge on circumstantial evidence and none was given. On appeal, Stubbs argued that the trial court should have charged the jury on the law of circumstantial evidence even in the absence of a request. The Court of Appeals disagreed and affirmed in a fractured plurality opinion. ² 1. In Robinson v. State, supra, and Mims v. State, supra, this Court held that it is error to refuse a charge on the law of circumstantial evidence if such a charge is requested by defendant. However, as we recently noted in Yarn v. State, supra, neither Robinson nor Mims can be read as departing from the longstanding rule that, in the absence of a request, a charge on the law of circumstantial evidence must be given if the State's case is based wholly on circumstantial evidence. Our law remains clear: (1) Even in the absence of a request, a trial court must charge on the law of circumstantial evidence when the State's case rests solely upon such evidence; (2) The charge should consist of the language set forth in OCGA § 24-4-6.

2. Because Stubbs did not request a charge on circumstantial evidence, it was not incumbent upon the trial court to charge on the law of circumstantial evidence if the State's case rested on both direct and circumstantial evidence. Yarn v. State, supra. Thus, the pivotal question is whether the State presented direct as well as circumstantial evidence of Stubbs' guilt.

Our Code defines direct evidence as that "which immediately points to the question at issue." OCGA § 24-1-1(3). It describes circumstantial evidence as that "which only tends to establish the issue by proof of various facts, sustaining by their consistency the hypothesis claimed." OCGA § 24-1-1(4). Unfortunately, these statutory definitions do not provide a clear-cut formula for identifying direct and circumstantial evidence. Thus, deciding whether evidence is direct or circumstantial remains a difficult and confusing task. See Mims, supra, 264 Ga. at 273, n. 5, 443 S.E.2d 845 (Hunt, Chief Justice, concurring).

Traditionally, the term "direct evidence" pertains to the testimony of witnesses. See 1A Wigmore, Evidence, p. 950, § 24 (Tillers rev. 1983), quoting Patterson, The Types of Evidence: An Analysis, 19 Vand.L.Rev. 1 (1965). From that perspective, direct evidence is simply that which comes from the witness stand. This adds little, if anything, to the task of distinguishing direct from circumstantial evidence because the witness may not be testifying about a fact which "immediately points to the question at issue." OCGA § 24-1-1(3). He may, instead, be testifying about a fact which only "tends to establish the issue." OCGA § 24-1-1(4). Suppose, for example, an eyewitness testified that he saw the defendant commit the crime. There can be no doubt that such testimony is direct evidence because it immediately points to the question at issue--whether the defendant committed the crime. See, e.g., Nance v. State, 239 Ga. 381(1), 236 S.E.2d 752 (1977) (eyewitness's identification of defendant is direct evidence of guilt). On the other hand, suppose a witness testified that, one hour before the commission of the crime, he saw the defendant standing on a corner two blocks away from the crime scene. Such testimony can hardly be considered to be direct evidence because it only tends to establish the issue--i.e., whether the defendant committed the crime. See, e.g., Williams v. State, 239 Ga. 12, 235 S.E.2d 504 (1977) (testimony that defendant had been seen in the company of participants in the crime is circumstantial evidence). Thus, whether evidence comes in the form of testimony does not determine whether it is direct or circumstantial.

The distinction between direct and circumstantial evidence has best been explained this way: Direct evidence is that which is consistent with either the proposed conclusion or its opposite; circumstantial evidence is that which is consistent with both the proposed conclusion and its opposite. 1A Wigmore, Evidence § 24 (Tillers rev. 1983), pp. 948, 949, quoting Patterson, supra. For example, if the proposed conclusion is that defendant and others robbed the victim, the victim's voice identification of the defendant as one of the robbers is consistent with only the proposed conclusion and is, therefore, direct evidence. See DePalma v. State, 228 Ga. 272, 274, 185 S.E.2d 53 (1971) (voice identification of robber is direct evidence). Similarly, if the proposed conclusion is that the defendant and others robbed the victim, the defendant's testimony that he did not rob the victim is consistent with only the opposite of the proposed conclusion and is, therefore, direct evidence. ³ On the other hand, testimony that the defendant was seen in the company of the robbers an hour before the robbery is consistent with both the conclusion and its opposite, i.e., it is consistent with both the defendant's guilt and his innocence. Although the testimony is relevant to the proposed conclusion, it is only circumstantial evidence of defendant's guilt. See 1A Wigmore § 24, supra.

In this case, Stubbs was convicted of burglary and the possession of tools for the commission of a crime. We summarize the evidence presented by the State ⁴ as follows: Stubbs' car was parked near a furniture store while another man stood next to the car, holding a TV set; the man saw an approaching police car, put the TV down and ran. The officer observed a metal bar and a padlock, which had been pried from the front door of the furniture store, in Stubbs' car. Shortly thereafter, the furniture store's burglar alarm signalled an intrusion. In a statement given to the police, Stubbs said that he had stopped his car because he was intoxicated and sick; that he was approached by a man wanting to sell a TV; and that the man threw the padlock and something else into his car before he ran off.

With regard to the burglary, the State's evidence is consistent with both the proposed conclusion and its opposite, i.e., it is consistent with Stubbs' guilt (he was a participant in the burglary) and his innocence (he was a mere bystander). Thus, the State's evidence with regard to the burglary is wholly circumstantial and the trial court erred in failing to charge on the law of circumstantial evidence. ⁵

With regard to the offense of possession of tools for the commission of a crime, the arresting officer's testimony that the metal bar was in Stubbs' automobile is consistent only with the proposed conclusion, i.e., it is only consistent with Stubbs' guilt. ⁶ Thus, the State's evidence with regard to the possession of burglary tools rested, at least in part, on direct evidence and the trial court did not err in failing to charge on the law of circumstantial evidence.

Judgment affirmed in part and reversed in part.

All the Justices concur, except FLETCHER, P.J., who concurs specially and...