Tanner v. State
| Decision Date | 09 March 1972 |
| Docket Number | No. 27037,27037 |
| Citation | 228 Ga. 829,188 S.E.2d 512 |
| Parties | Johnnie Lee TANNER v. The STATE. |
| Court | Georgia Supreme Court |
Travis, Tarver & Furlong, P. Russell Tarver, Thomas A. Travis, Jr., Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Joel M. Feldman, Carter Goode, James H. Mobley, Jr., Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., Richard S. Gault, Deputy Asst. Atty. Gen., Atlanta, for appellee. Syllabus Opinion by the Court
Johnnie Lee Tanner was convicted in the Superior Court of Fulton County, Georgia, on an indictment charging him with armed robbery and on an indictment charging him with a misdemeanor. He received sentences of 10 years and twelve months to run consecutively. He appeals from these convictions and sentences. Held:
1. The 'Spic and Span Cleaners' in Fulton County was robbed on August 31, 1971. The perpetrator of the robbery wore a stocking over his face and was armed with a gun. He took a sum of money from Jacqueline Billings, the person in charge of the cash register, by pointing the gun at her, put his hands on the counter to pick up the money, told her to lie on the floor until he had gone, and covered her head with a shirt. A nine-year-old boy was in the place of business at the time of the robbery. He saw the perpetrator of the crime in front of the door before he put the stocking over his head and positively identified him as the person who robbed the place of business. The boy stated that the appellant had previously been there. The fingerprints of the appellant were taken from the counter where he had picked up the money.
The evidence was sufficient to support the verdict.
2. Counsel for the defendant objected to a leading question asked the nine-year-old witness. The trial court acknowledged that the question was leading but did not instruct the jury to disregard it. The appellant contends that this was error.
'Whether counsel will be permitted to propound leading questions to a boy 'of immature years,' while testifying, is a matter which addresses itself to the sound discretion of the court; and the allowance of such questions will not be held erroneous, unless the discretion is abused.' McCrary v. State, 137 Ga. 784(1), 74 S.E. 536.
It follows that there is no merit in this contention.
3. The investigating officer testified that when he arrived at the scene of the crime, the victim and the boy told him certain things. He later testified that he received some information from the identification bureau about the fingerprints taken from the scene of the crime. Counsel for the defendant objected to the testimony given in each instance on the basis that it was hearsay evidence and was not admissible. There is no merit to this contention since Code § 38-302 allows such evidence to explain the conduct of the witness.
4. Roger Dale Rainey testified that he had taken 80 hours of fingerprint courses at the Georgia Police Academy and had over a year and a half training with the identification bureau of the police department in this field. He testified that he had examined and compared certain fingerprints against others on file. Counsel for the appellant objected to his testimony because he had not qualified as an expert. A colloquy between the court and counsel ensued and the court stated: The court subsequently charged the jury: 'Whether the learning, skill and experience, if any, of a witness really entitles his opinion testimony to be considered that of an expert is at last to be determined by the jury itself.'
The appellant contends that the ruling of the trial court and his charge to the jury are error. He also contends that the subsequent allowance in evidence of the fingerprints was error. The training and experience of this witness was sufficient to show that he was an expert in the field of fingerprints. Therefore, the trial court's conclusion that the competency of the witness as an expert was a question for the jury to determine, even if error, was harmless.
It follows that these contentions are without merit.
5. The appellant contends that although he was 20 years old and his written waiver showed that he had a twelfth-grade education, his waiver of his constitutional right to counsel before making a statement could not be used in evidence against him. This waiver of his constitutional rights was witnessed by his father.
The evidence shows that the only statement the appellant made to the investigating officers was that he had never been to the business establishment which was robbed.
The cases In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527; In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368; and Daniels v. State, 226 Ga. 269, 174 S.E.2d 422, have no application to the facts of this case.
The fact that the appellant was a 20-year-old minor at the time he signed a waiver of his constitutional right of counsel would not vitiate his statement. The evidence showed that it was freely, voluntarily, and knowingly signed.
There is no merit in the contentions of the appellant.
6. The evidence shows that two detectives took a group of six pictures to the school which the nine-year-old witness attended. In the presence of the detectives, the principal, and assistant principal, the nine-year-old witness looked at the pictures. He stopped at a certain picture,...
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