MOORE v. THE STATE., 221 Ga. 636, 146 S.E.2.d 895 (1965)

Supreme Court of Georgia

Status: SUBMITTED

Docket Number: 23069

Parts: COOK, Justice.

Linked as:

Summary

Judgment reversed. All the Justices concur, except Duckworth, C. J., Candler, P. J., and Almand, J., who dissent.

Summary

Judgment reversed. All the Justices concur, except Duckworth, C. J., Candler, P. J., and Almand, J., who dissent.

Text

Lewis R. Slaton, Solicitor General, Carter Goode, J. Walter LeCraw, George K. McPherson, Jr., Arthur K. Bolton, Attorney General, J. R. Parham, contra.James O. Goggins, for plaintiff in error.

1. Testimony concerning other crimes committed by the defendant is admissible if such testimony aids in identification and shows the state of mind, plan, motive, and scheme of the accused.

2. The right of cross examination, thorough and sifting, shall belong to every party as to the witnesses called against him. Code 38-1705. However, the scope of the cross examination rests largely within the discretion of the trial judge and he has the right to impose reasonable limitations on the cross examination of witnesses.

3. Where a prima facie showing is made by the State that a confession is freely and voluntarily made, "without being induced by another, by the slightest hope of benefit or remotest fear of injury," (Code 38-411), it is admissible in evidence.

4. Grounds 21, 22, and 23 of the motion for new trial do not show reversible error.

5. It was error to admit in evidence the opinion of an expert witness in regard to the sanity of the defendant based on information received from others.

6, 7, 8. There is no merit in grounds 27, 28, 29, 30, 31, 32, and 33 of the motion for new trial.

9. The verdict was authorized by the evidence.

Keith Donald Moore was charged with robbery by the use of an offensive weapon. The indictment alleged that the crime was committed on June 26, 1964, by threatening two named persons with a pistol and taking from them the sum of $23,200, the property of The Citizens & Southern National Bank. The jury found the accused guilty and recommended mercy. His motion for new trial on the general grounds was amended by the addition of thirty special grounds, and the exception is to the denial of the motion for new trial as amended. The bill of exceptions states that ground 13 is not insisted on.

1. On the trial of the case testimony was introduced in connection with the robbery of a branch of The Citizens & Southern National Bank, located at 3005 Peachtree Road, Atlanta, on June 26, 1964, and an attempted robbery of the same bank on December 9, 1964, in which attempt the defendant was apprehended. In special grounds 4, 5, 6, and 7 it is asserted that it was error to admit into evidence, over objection of the defendant, testimony relating the events transpiring at the time of the attempted robbery in December. In grounds 10, 16, 17, 18, 19, and 20 it is asserted that it was error to admit in evidence exhibits in connection with the attempted robbery in December. This testimony was allowed by the trial judge with instructions to the jury that it was admitted for the purpose of showing identification and showing the state of mind, plan, motive, and scheme of the defendant, and for no other purpose.

"On a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly distinct, independent, and separate from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible, unless there be shown some logical connection between the two from which it can be said that proof of the one tends to establish the other." Bacon v. State, 209 Ga. 261 (71 SE2d 615); Henderson v. State, 209 Ga. 72 (70 SE2d 713); Rosborough v. State, 209 Ga. 362 (72 SE2d 717; Wilson v. State, 220 Ga. 781, 785 (6) (141 SE2d 893). These grounds do not show an abuse of discretion by the trial judge in limiting the scope of the cross examination of these witnesses.

Robbe testified that the confession of the defendant was freely and voluntarily made. He stated that he told the defendant that anything he said could be used against him; that he was entitled to counsel; that the witness could not help him. The alleged confession of the defendant was obtained at the time he was in custody after the attempted robbery on December 9. The defendant had told employees of the bank that he was holding certain persons in Tucker, Georgia, as hostages, and he pretended to be talking with an accomplice on electronic equipment. In the testimony laying the foundation for the admission of the defendant's confession in evidence, in response to the question, "Did you subsequently discuss the June 26 robbery with him?", Robbe stated: "I did subsequently. I didn't talk to him but about a minute. I asked the question, was there another man on the loose with a rifle. He said no, I am the only one. I knew he had some electronic equipment with him which indicated possibly another person. He said no, there is nothing to this. This is primarily what I wanted to find out. I spoke to him briefly, I just said this: You don't have to say anything but I think it would be helpful if you would and we could iron all this out. He said he wanted to think about it a few minutes. I asked everybody to leave the room and leave him there to do some thinking. Everyone did leave the room. I am pretty sure, I am fairly certain everyone left the room." Robbe further testified that before the defendant made any statement the witness again advised him of his rights, suggested that he should call an attorney, and told him that the court would supply him with counsel if he would not afford one.

In the evidence before the jury the witness Robbe admitted on cross examination that he recalled stating, "You are in a bad spot and you are in trouble." He also admitted that he had testified while the jury was out "that it would be helpful if you would talk about it." The trial judge admitted the confession to the jury with the instruction that it was a matter for them to determine whether or not the confession was freely and voluntarily made.

"If there is a conflict as to whether or not a statement, admission, or confession was made freely and voluntarily, that question then becomes one of fact for determination by the jury, provided a prima facie showing is made by the State that such statement was made freely and voluntarily and without hope of benefit or fear of injury." Smith v. State, 215 Ga. 51 (4) (108 SE2d 688); Garrett v. State, 217 Ga. 831, 841 (125 SE2d 488).

Greater latitude is allowed in questioning a witness on cross examination than on direct examination, but such latitude does not dispense with all the rules of evidence. The question propounded to the expert witness in the present case was not designed to test his good faith, knowledge, credibility, accuracy, or the weight of his testimony on direct examination. It was an attempt to make him an expert witness for the State and to have him give an opinion on a matter in which his knowledge was derived from hearsay. Dr. Moore had testified that he performed an exploratory operation on the brain of the defendant after the defendant had received a head injury in an accident approximately two years before the crime was alleged to have been committed. The witness stated on cross examination that he had not seen the defendant in two and one-half years. His testimony could not be given any reasonable construction but that the opinion he gave as to the ability of the defendant to distinguish right from wrong was based on information received from others. A party should not be allowed to introduce in evidence an opinion of an expert witness based on hearsay by the method of cross examining such witness, where such evidence would have been entirely inadmissible on direct examination.

The opinion evidence based on hearsay which was erroneously admitted concerned a vital issue in the case. The main defense of the defendant was that he was insane at the time of the commission of the crime. It is impossible to calculate the harm that may have resulted to the defendant in having this eminent medical expert give his opinion to the jury that the defendant knew the difference between right and wrong.

It was error to admit in evidence the testimony complained of in grounds 24, 25, and 26.

6. Grounds 27, 28, 29, and 31 assert error because of the sustaining of objections of the solicitor general to questions of counsel for the defendant, and ground 30 assigns error on the refusal to allow the defendant's counsel to inspect the file of a witness. All of these grounds have been carefully considered, and they are without merit.

7. Ground 32 relates to the admission in evidence of the State's exhibits of checks drawn on the defendant's bank account from January through May, 1964, showing a balance in the account of less than $43, and a microfilm of the account, over the objection that the period between May 18 and June 26, 1964, was not included, and the account was an incomplete record.

The defendant contended that the money deposited by him in the Swiss bank was obtained through a settlement of his claim for damages because of personal injuries received in the accident in July, 1962. The checks and bank record were admissible to show that this money had been spent prior to the robbery in June, 1964.

8. In ground 33 it is contended that it was error to allow the introduction in evidence of a record of the sale to the defendant on February 18, 1964, of automatic pistol with the same serial number as that of the pistol alleged to have been used in the attempted robbery in December, 1964. The objection to the evidence was that the pistol had not been identified as being used by the defendant in the June robbery.

Mrs. Suzanne Ingle testified that the pistol introduced in evidence looked like the one used in the robbery of June 26. Lt. C. J. Strickland, of the Atlanta Police Department, testified that the pistol introduced into evidence was taken from the automobile in which the defendant was apprehended, after a search warrant had been obtained to search the automobile, at the time of the attempted robbery of December 9. It was not error to admit the record of the sale to the defendant in evidence.

9. The defendant was positively identified as the perpetrator of the robbery on June 26. The question of his mental competency was for the jury. The trial judge did not err in overruling the general grounds of the motion for new trial.

DUCKWORTH, Chief Justice, dissenting. I believe the fatal fallacy of the majority lies in its application of the requisite rules for affirmative testimony to the testimony of the doctor on cross examination. The State had the right to (1) draw from this witness for the defendant any testimony favorable to the State, and also (2) demonstrate his want of credibility by getting him to draw unsupported conclusions. Therefore, when he said his conclusions as to mental condition were based upon his own knowledge and elsewhere indicated that they were in part based upon what other doctors said, or upon correspondence with the defendant and his attorney, this should have been left to the jury to enable them to appraise his credibility.

I firmly believe the majority is mistakenly applying the rules applicable to affirmative testimony to a cross examination. I would affirm the judgment of the trial court.

1965