Toole v. State
Decision Date | 20 June 1978 |
Docket Number | No. 55413,55413 |
Citation | 146 Ga.App. 305,246 S.E.2d 338 |
Parties | TOOLE v. The STATE. |
Court | Georgia Court of Appeals |
Harrison, Childs & Foster, Mobley F. Childs, C. David Wood, Decatur, for appellant.
William Bryant Huff, Dist. Atty., Malcolm C. McArthur, Steven L. Reed, William P. Rowe, III, K. Dawson Jackson, Asst. Dist. Attys., for appellee.
Toole appeals his conviction, by a jury, of rape and aggravated sodomy, enumerating eighteen errors. Held :
1. "As to the general grounds, this court is bound by the 'any evidence' rule and must accept the state's version of the evidence, as was done by the jury and the trial judge." Franklin v. State, 136 Ga.App. 47, 48(1), 220 S.E.2d 60, 61.
2. Enumerated error 2 attacks a search warrant pursuant to which certain evidentiary items were seized. Specifically, appellant contends that the warrant was prohibited by the holding in Connally v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977). However, the warrant was issued April 10, 1977, subsequent to the effective date of the amendment to Code Ann. § 24-1601 (Ga.L.1977, p. 196), which abolished the "fee system" proscribed by Connally. Absent a showing of impropriety, Connally does not require reversal here.
3. Appellant attacks the warrant as insufficiently descriptive, both as to the place to be searched and items to be seized. The affidavit described the trailer to be searched as This description, accurate in all respects, clearly satisfied the standard that it ". . . sufficiently permits a prudent officer with a search warrant to be able to locate the person and place definitely and with reasonable certainty." Fomby v. State, 120 Ga.App. 387, 170 S.E.2d 585; State v. Megdal, 139 Ga.App. 397, 228 S.E.2d 333. The items of evidence sought, in the absence of a showing of intentional misrepresentation or misstatement, were "sufficiently identified to authorize their introduction into evidence." Young v. State, 225 Ga. 255, 256, 167 S.E.2d 586, 587. See Williams v. State, 232 Ga. 213, 205 S.E.2d 859; Bryan v. State, 137 Ga.App. 169, 223 S.E.2d 219.
4. The facts contained in the affidavit were related to the complaining officer by the victim herself, on personal knowledge, and were sufficient, if taken as true, to satisfy the requirements of Code Ann. § 27-303, with regard to the showing of probable cause. See Campbell v. State, 226 Ga. 883(1), 178 S.E.2d 257.
5. The trial court did not err in denying that part of appellant's Brady motion (Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)) which sought to compel the state to produce "all records showing or tending to show how the persons named on the jury panels sent to the courtroom for the trial of the named defendant have voted in the past on civil and criminal cases." First, it appears doubtful that jury voting records would constitute Exculpatory evidence within the meaning of Brady v. Maryland, supra. Benefield v. State, 140 Ga.App. 727, 736, 232 S.E.2d 89, 96. The trial court conducted an in camera inspection of the state's files and found no exculpatory material. And, Benefield v. State, supra, p. 737, 232 S.E.2d p. 96. Second, ,' Howard v. State, 144 Ga.App. 208, 211, 240 S.E.2d 908, 911.
6. Appellant's contention that the trial court erred in allowing both the victim-prosecutrix and the investigating officer to remain in the courtroom after the rule of sequestration had been invoked is controlled adversely by Dye v. State, 220 Ga. 113(2), 137 S.E.2d 465. Furthermore, appellant failed to timely object to the testimony of these witnesses and will not now be heard to complain of the order in which they testified. Powell v. State, 142 Ga.App. 641(1), 236 S.E.2d 779.
7. Appellant complains of the admission of testimony by the investigating officer concerning the appearance of the victim's husband at the scene of the incident immediately following its occurrence, on the ground that such testimony was irrelevant.
Harris v. State,142 Ga.App. 37, 41, 234 S.E.2d 798, 801. "Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant." McNabb v. State, 70 Ga.App. 798, 799, 29 S.E.2d 643, 644. Ultimately, the relevance of evidence is "addressed to the jury's determination." Davis v. State, 230 Ga. 902, 905, 199 S.E.2d 779. Clearly, the husband's on-the-scene reaction to his wife's statement to him that she had been raped is admissible as independent evidence of recent complaint tending to prove that the incident occurred as alleged. See Burnett v. State, 236 Ga. 597, 598, 225 S.E.2d 28; Price v. State, 233 Ga. 332, 211 S.E.2d 290.
8. Under the rules of relevancy set forth above, the trial court did not err in admitting testimony concerning the victim's inability to sleep immediately following the incident. While the probative value of such testimony may be doubtful, it is of at least some evidentiary value as tending to prove force and lack of consent, issues left to the determination of the jury where the defendant alleged consent by the victim. Enumerated errors 11 and 12 are without merit.
9. Bain v. State, 144 Ga.App. 470, 241 S.E.2d 586. The corroborative evidence adduced at trial satisfied the standards enunciated in Burnett v. State, supra. Enumerated error 9 is without merit.
10. Appellant argues that some thirteen exhibits tendered by the state were improperly admitted for the reason that they suffered a fatal flaw in the chain of custody. We disagree. As to fungible items of evidence, Johnson v. State, 143 Ga.App. 169, 170, 237 S.E.2d 681, 683. Moreover, Meadows v. State, 135 Ga.App. 758, 760, 219 S.E.2d 174, 175. See also Braden v....
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Neelley v. State
...unfavorable to the State. Because there was no purposeful withholding of information material to the defense, cf. Toole v. State, 146 Ga.App. 305, 246 S.E.2d 338 (1978) (disclosure of prior voting patterns of jurors not discoverable as evidence "exculpatory" to the defense), and because Mrs......
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Martin v. State, 57852
...objective of appellant's Brady motion was met. Benefield v. State, 140 Ga.App. 727, 733(8), 232 S.E.2d 89 (1976); Toole v. State, 146 Ga.App. 305, 306(5), 246 S.E.2d 338 (1978). Also, there was compliance with appellant's motion to produce to the extent that the scope thereof was relevant a......
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Johnson v. State, 56929
.... and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant.' " Toole v. State, 146 Ga.App. 305(7), 246 S.E.2d 338. "(W)here the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to the determina......
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Cochran v. State
...it is proper to admit the evidence and let whatever doubt exists to go to the weight accorded such evidence. Id.; Toole v. State, 146 Ga.App. 305 (10), 246 S.E.2d 338. The chain of custody was sufficiently established. 3. Appellant Cochran argues that his character was impermissibly placed ......