Wellborn v. State

• Decision Date: 28 September 1988
• Docket Number: No. 45786,45786
• Citation: 258 Ga. 570,372 S.E.2d 220
• Parties: WELLBORN v. The STATE.
• Court: Georgia Supreme Court

Page 220

372 S.E.2d 220

258 Ga. 570

WELLBORN v. The STATE.

No. 45786.

Supreme Court of Georgia.

Sept. 28, 1988.

Reconsideration Denied Oct. 19, 1988.

L. David Wolfe, L. David Wolfe & Associates, Atlanta, for Rance Langley Wellborn.

Robert E. Wilson, Dist. Atty., Robert E. Statham III, Asst. Dist. Atty., Decatur, Michael J. Bowers, Atty. Gen., Eddie Snelling, Jr., Asst. Atty. Gen., for the State.

MARSHALL, Chief Justice.

Rance Langley Wellborn appeals his conviction of the malice murder of Larry Burmeister for which he was sentenced to life imprisonment. ¹ We affirm.

On May 14, 1986, the nude body of the victim--mutilated from numerous lacerations and stab wounds--was found on the floor next to the bed in his bedroom. Blood covered the body, the bedspread in which it was partially wrapped, the carpet underneath, and the walls and floor. There was evidence that the victim was homosexual, that Wellborn was bi-sexual, and that both of them had been seen in the same gay "cruise bar" in Midtown Atlanta on several occasions. Wellborn admitted having fled rapidly from the victim's house at the time of the homicide (mid-day, May 13), but claimed that an unidentified assailant had attacked him in the carport before Wellborn discovered the victim's body. The evidence did not support this contention. There was evidence that Wellborn was unclothed during the attack on the victim, and the victim's mouth contained partially intact spermatozoa. The victim's injuries were of the type found in homicides in which there is an emotional link or bond between the victim and the assailant.

1. Prior to trial, the defense filed a motion pursuant to OCGA § 17-7-211 for production of scientific reports. Copies of all written reports were supplied by the state prior to trial. The district attorney's office determined that a throw rug from the victim's hallway was not significant to the case, therefore it was not originally submitted to the state crime lab for testing. During cross-examination in the trial, defense counsel attempted to create the impression that bloodstains on the rug might have belonged to Wellborn, thereby supporting his defense. The rug was admitted in evidence without objection. Having anticipated at the commencement of the trial that the rug might become important, the district attorney's office had it tested by the crime lab, which testing began two days after the commencement of the trial. Wellborn objects to the admission of expert testimony of the results of this test on the morning of the completion of the test (no written report having been obtained at that time), on the ground that he had not been furnished a copy of the report 10 days prior to trial pursuant to OCGA § 17-7-211.

"OCGA § 17-7-211 attaches only when there is a writing. Law v. State, 251 Ga. 525 (307 S.E.2d 904) (1983)." Faircloth v. State, 253 Ga. 67, 68(2), 316 S.E.2d 457 (1984). There was no writing in existence at the time the state furnished copies of other reports as required by OCGA § 17-7-211. The statute does not prohibit the prosecution from introducing evidence of scientific tests performed immediately prior to or during the trial absent a showing that the prosecution attempted to circumvent the discovery process. Carey v. State, 257 Ga. 134(3), 356 S.E.2d 507 (1987) and cit.; Perry v. State, 255 Ga. 490(3), 339 S.E.2d 922 (1986). Here, the appellant had not sought expert analysis of the exhibit prior to trial; the testimony of the test results was introduced as rebuttal; the prosecuting attorney furnished the test results as soon as they became available; and the defense did not request a recess or continuance (Carey v. State, supra, (3)). Under these circumstances, we find no error.

2. Over objection that it impermissibly placed his character into issue, the state was allowed to introduce evidence of Wellborn's bi-sexuality. In view of the evidence that the victim was a homosexual and considering that evidence of homosexuality related to the facts of the murder, this evidence was admissible to show intent, motive, plan, scheme and bent of mind. Williams v. State, 250 Ga. 463, 466, 298 S.E.2d 492 (1983); Rini v. State, 236 Ga. 715, 716(2), 225 S.E.2d 234 (1976). See also Jones v. State, 172 Ga.App. 347(2), 323 S.E.2d 174 (1984); Gunter v. State, 163 Ga.App. 824(2), 296 S.E.2d 622 (1982); Felker v. State, 144 Ga.App. 458(2), 241 S.E.2d 576 (1978).

Wellborn objected to allowing such evidence to be admitted in the form of a conclusion by an expert witness who was a forensic pathologist, whereas he contends that this was mere speculation based on forensic psychology, outside the realm of the witness' qualifications. Unlike the case of Sanders v. State, 251 Ga. 70(3), 303 S.E.2d 13 (1983), the objected-to evidence (here, as to homosexual tendencies) was already in evidence. The expert witness' opinion here was supported by the evidence; was within the scope of his field according to his testimony; and was a conclusion which the jurors ordinarily could not draw themselves. No timely objection was made as to lack of general acceptance of the witness' opinion, thus this was waived. Such opinions based on the nature of the victim's injuries are generally permitted. Buie v. State, 254 Ga. 167(4), 326 S.E.2d 458 (1985); Prince v. State, 252 Ga. 82(2), 311 S.E.2d 433 (1984); Bethea v. State, 251 Ga. 328(10), 304 S.E.2d 713 (1983); Allison v. State, 256 Ga. 851(5), 353 S.E.2d 805 (1987).

Enumerated errors 2 and 4 are without merit.

3. Wellborn contends that a mistrial should have been granted because a state's expert witness from the state crime lab testified that she had visually examined his shirts for bloodstains, whereas she stated out of the jury's presence that she had chemically analyzed them. His contention is that this was deceptive and improper use of perjured testimony, to make it appear that the absence of bloodstains was so obvious that chemical testing was unnecessary.

The state complied with OCGA § 17-7-211 by its pretrial furnishing of copies of each written scientific report it had received. (See Div. 1, above.) The witness stated that she does not always report such negative results, and the results were admissible in their entirety because no written report was made. Williams v. State, 251 Ga. 749(3a) 312 S.E.2d 40 (1983); Law v. State, ...