Curry v. StateCurry v. State
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- Before:
- McMurray
Defendant was indicted for the offenses of aggravated assault and armed robbery. The evidence adduced at a jury trial reveals the following: At about 11:30 in the evening on December 3,1992, defendant and an accomplice entered a liquor store in Athens, Georgia, and shot the owner of the store (during a gun battle) as he was preparing to close the business. Although wounded, the victim returned fire and shot defendant just before the assailants made off with the store’s cash register. A few minutes later, defendant appeared at a neighbor’s home complaining that he had been wounded during a drive-by shooting. Defendant was taken to a hospital and a physician found a bullet lodged “in the deep musculature of [his left] leg.” Further ex-
After the jury found defendant guilty of aggravated assault and armed robbery, the trial court merged the aggravated assault charge with the armed robbery charge and sentenced defendant to life in prison. This appeal followed the denial of defendant’s motion for new trial. Held:
1. In his first two enumerations, defendant contends the trial court erred in ordering surgical removal of the bullet from his leg and in permitting testimony regarding his refusal to consent to surgery. Specifically, defendant argues that the trial court’s order infringes upon his Fourth Amendment right against unreasonable intrusions into his body and that testimony regarding his refusal to consent to the surgery infringed upon his state and federal constitutional rights against coerced self-incrimination by sanctioning an inference that “he ‘had something to hide.’ ”
“[E]vidence of a defendant’s refusal to comply with a lawful court order has been held to be admissible in other [jurisdictions] on the ground that ‘(a)n attempt by a criminal defendant to suppress evidence is probative of consciousness of guilt and admissible on that basis.’
United States v. Wagner,
834 F.2d 1474, 1484 (9th Cir. 1987) (quoting
United States v, Castillo,
615 F.2d 878, 885 (9th Cir. 1980)).”
United States v. Jackson,
886 F2d 838, 845 (7th Cir. 1989). Georgia courts have embraced parallel logic, adopting “[t]he broad premise . . . that a statement or conduct by [a] defendant which indicates a consciousness of guilt is admissible against him.
Bridges v. State,
246 Ga. 323, 324 (2) (271 SE2d 471) (1980).”
Parker v. State,
181 Ga. App. 590, 591 (2) (353 SE2d 83). We cannot say, however, that this principle is broad enough to encompass reasonable opposition to unlawful governmental intrusions. To say otherwise would not
The controlling issue in the case sub judice is therefore whether defendant was constitutionally justified in defying law enforcement efforts to have the bullet surgically extracted from his leg. To this extent, we observe that the State’s compelling need to retrieve evidence of a crime is, alone, insufficient to justify an intrusion into the body of a living human being. There must also be proof that the surgical procedure required to accomplish the seizure is reasonable, i.e., unsubstantial. Creamer v. State, 229 Ga. 511, 514 (2), 515 (192 SE2d 350). Of course, the measure for determining what bodily intrusions are “reasonable” or “unsubstantial” is not always a subject for rigid objective analysis. Each case must be measured on its own merits. Schmerber v. California, 384 U. S. 757 (86 SC 1826, 16 LE2d 908). We are guided in the case sub judice by the United States Supreme Court’s decision in Winston v. Lee, 470 U. S. 753, 754 (105 SC 1611, 84 LE2d 662), where an order directing surgical removal of a bullet from a criminal suspect was found to be too obtrusive under Fourth Amendment standards. 1 The Supreme Court decided that society’s interest in accurately determining guilt or innocence (as measured by the strength of other evidence supporting the government’s case) was outweighed by the severe and involuntary nature of the intrusion into the suspect’s body. “Surgery without the patient’s consent, performed under a general anesthetic to search for evidence of a crime, involves a virtually total divestment of the patient’s ordinary control over surgical probing beneath his skin.” Id.
In the case sub judice, it is undisputed that a general anesthetic would have been required to surgically extract the bullet from defendant’s leg and there is proof that the surgery posed a risk to defendant’s health. In this regard, defendant’s physician testified that the bullet was buried deep within the muscle of his patient’s left leg; that the projectile was close to vital bodily components; that there was no medical reason to remove the bullet and that the procedure
2. Defendant next contends the victim’s spouse was exposed to an unduly suggestive pretrial photographic lineup. This contention presents no grounds for reversal since defendant failed to object when this witness testified that she saw defendant lurking outside her husband’s liquor store on the day before the armed robbery. May v. State, 159 Ga. App. 565, 566 (2) (284 SE2d 70).
3. In his final enumeration of error, defendant contends his life sentence is void because
Judgment affirmed.
Andrews and Blackburn, JJ., concur.
Notes
In Winston, the surgery required to accomplish the seizure involved debate over health or safety risks to the suspect and a bodily intrusion which would have likely been more than skin deep.