Zilinmon v. State, 29941
| Citation | 234 Ga. 535,216 S.E.2d 830 |
| Decision Date | 02 June 1975 |
| Docket Number | No. 29941,29941 |
| Parties | Arthur William ZILINMON v. The STATE. |
| Court | Supreme Court of Georgia |
Al Bridges, Public Defender, Decatur, for appellant.
Richard Bell, Dist, Atty., Calvin A. Leipold, Asst. Dist. Atty., Decatur, Arthur K. Bolton, Atty. Gen., Julius C. Daugherty, Jr., Atlanta, for appellee.
Syllabus Opinion by the Court
The defendant was convicted on all five counts of an indictment charging rape, burglary, robbery, aggravated assault with intent to murder and terroristic threat. His motion for new trial was overruled and the present appeal filed.
1. Enumerations of error 1 through 7 complain of the photographic and pretrial lineup identification procedures and the courtroom identification by three witnesses. A hearing was held out of the presence of the jury as to the photographic identification and lineup procedure. Thereafter, the evidence was admitted over objection. The victim testified that she had looked at about 500 pictures before being presented with a group of six from which she identified the defendant and that she was not given any information that defendant was a suspect in the case.
'Each case must be considered on its own facts . . . and the due process test looks to the totality of the surrounding circumstances. (Cits. omitted) . . . The first inquiry is whether the photographic display was impermissibly suggestive. Only if it was, need the court consider the second question: whether there was a very substantial likelihood of irreparable misidentification. 'If the judge does not find as a matter of law both that the picture spread was impermissibly suggestive and that there is a substantial likelihood of irreparable misidentification, the in-court identification may be put before the jury. " Payne v. State, 233 Ga. 294, 299, 210 S.E.2d 775, 780; Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247.
The identification of the defendant from the photograph and the subsequent lineup was in accord with due process standards and did not make the in-court identification tainted. There is no merit in these enumerations of error.
2. Enumerations of error 8 and 11 complain of hearsay testimony of two of the state's witnesses. The police officer who was summoned to the victim's residence within approximately 30 minutes of the occurrence was allowed to testify as to what the victim related to him upon his arrival. The victim related to him that a black male had come to the door, forced his way in, dragged her upstairs and raped her. She also gave a description of the rapist. The officer also testified that he noticed bruises on her neck. This testimony was admissible under Code § 38-305. See Overton v. State, 230 Ga. 830, 837, 199 S.E.2d 205.
Another police officer, who conducted the photographic lineup, was allowed to testify over objection as to whom the victim identified. The trial court allowed this testimony for the limited purpose of explaining conduct and was clearly admissible for this purpose. Code § 38-302; Perdue v. State,225 Ga. 814, 815, 171 S.E.2d 563. There is no merit in these enumerations of error.
3. Enumeration of error 9 contends the trial court erred in refusing to allow a state's witness on cross-examination to refresh his memory from documents prepared by others. A witness may refresh his memory from notes, records and other documents prepared by himself provided he shall speak from his recollection thus refreshed. Although a witness may refresh his memory from a writing prepared by another, he must nevertheless testify from his memory thus refreshed. When the document is prepared by a third person not in the presence of a witness, the memory is not refreshed by such memorandum and such testimony is inadmissible. Code § 38-1707; Hematite Mining Co. v. East Tenn., Va., & Ga. R. Co., 92 Ga. 268(3), 18 S.E. 24. No error is shown by this enumeration of error.
4. The tenth enumeration of error contends it was error to exclude the testimony of a seven year old witness for the defendant.
In Gordon v. State, 186 Ga. 615(1), 198 S.E. 678, it was held: 'It is left to the sound discretion of the trial court to determine whether or not a child of tender years is a competent witness . . .' Young v. State, 72 Ga.App. 811, 35 S.E.2d 321.
The trial judge having the witness before him and having propounded questions as to the meaning of an oath, etc. acted within the sound discretion vested in him in declaring the witness incompetent and such discretion,...
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