Lead Opinion
1. Hill testified as a witness for the prosecution. To authorize Appellant’s conviction,
An expert witness testified that he matched a print lifted from the victim’s vehicle with the print of an individual identified as Gregory Roebuck. According to Appellant, the latter print was never shown to be his. However, “ ‘[concordance of name alone is some evidence of identity. Identity of name presumptively imports identity of person, in the absence of any evidence to the contrary.’ [Cit.]” Gibson v. State,
Appellant contends that the print card is hearsay, because it was never formally tendered and admitted as a business record. However, the testimony of the expert is what connects Appellant to the crime, and admissibility of that inculpatory testimony does not depend upon the admission of the print used by the witness to compare with the one taken at the murder scene. McCoy v. State,
Although it was never admitted as a business record, the print card was relevant as the basis for the expert’s conclusion that Appellant’s print matched that taken from the victim’s vehicle.
An expert may base his opinion on hearsay and may be allowed to testify as to the basis for his findings. [Cits.] When an expert’s testimony is based on hearsay, the lack of personal knowledge on the part of the expert does not mandate the exclusion of the opinion but, rather, presents a jury question as to the weight which should be assigned the opinion. The evidence should go to the jury for whatever it’s worth. [Cits.]
King v. Browning, supra at 47-48. “[W]here an expert personally observes data collected by another, his opinion is not objectionable merely because it is based, in part, on the other’s findings. [Cits.]” Millar Elevator Service Co. v. O’Shields,
According to the special concurrence, the expert’s testimony, standing alone, was not sufficient to connect Appellant to the crime. However, in McCoy v. State, supra at 120, we held that an expert was authorized to testify that fingerprints matched, even though the exemplar print of the accused was never introduced. This case is not materially different. Here, the print that the expert used in the comparison was otherwise shown to be that of Appellant, because it bore his name and he did not deny that it was his. “Concordance of name alone is some evidence of identity.” OCGA § 24-4-40 (a). If the opinion testimony, standing alone, was relevant and probative in McCoy, then it is likewise independently relevant and probative in this case. See also Turner v. State, supra at 829 (1); W.B.S. v. State, supra at 472 (1). McCoy differs only in that here the card bearing Appellant’s name was actually introduced into evidence. However, if introduction of the print card was not necessary to the admission of the expert’s opinion testimony in McCoy, then certainly its introduction without objection in this case does not negate the independent relevancy of that testimony.
The special concurrence further characterizes the print card as inadmissible hearsay. However, even assuming that it is hearsay, it still can constitute the basis for an expert’s opinion in this state. Cheek v. Wainwright, supra at 171, 174 (3). Whether or not it is admissible hearsay is not before us, because Appellant never objected to its introduction. See King v. Browning, supra at 47 (1). Compare Loper v. Drury,
Under the special concurrence’s analysis, no expert can ever give a probative opinion that two fingerprints match unless and until the accused’s exemplar print is formally introduced as a business record or is admitted under some other exception to the hearsay rule. That is not the law of Georgia. An expert can give an opinion based upon a comparison between a print taken from the scene of the crime and one which, even though never introduced into evidence, is otherwise identified as that of the defendant. McCoy v. State, supra at 120. Here, the expert testified that a fingerprint lifted from the victim’s car matched a print which bore Appellant’s name. Appellant did not dispute that the exemplar print was his, and did not raise a hearsay objection to admission of the evidence upon which the expert’s opinion was based. Under these circumstances, there is no reason to reconsider Georgia’s long-standing rule that inadmissible hearsay lacks probative value even though the opposing party does not object to its introduction. That rule does not apply under the facts of this case, because the expert’s opinion is independently probative notwithstanding any reliance on unobjected to hearsay.
When all of the evidence, including the corroborative fingerprint evidence, is construed most strongly in support of the verdict, it is sufficient to authorize a rational trier of fact to find proof of Appellant’s guilt of murder beyond a reasonable doubt. Jackson v. Virginia,
2. Appellant also urges that the State failed to show that the fingerprints identified as those of “Demetrius Jones” were his. Those prints are separate and distinct from the ones identified as Gregory Roebuck’s and discussed in Division 1. Therefore, error, if any, in the prosecution’s failure to show that Appellant used an alias and that the fingerprints of “Demetrius Jones” were his would be harmless. Standing, alone, the expert’s testimony that the fingerprints identified as belonging to Gregory Roebuck matched those taken from the murder scene was sufficient corroboration. McCoy v. State, supra; Turner v. State, supra.
3. Appellant invoked the reciprocal discovery provisions of OCGA § 17-16-1 et seq. He contends that the fingerprint evidence was inadmissible because, in violation
While none of the prints was newly discovered, their identification as Appellant’s apparently was. Before admitting the fingerprint evidence, the trial court allowed the defense an opportunity to review it and to interview the expert who would testify to the match. The circumstances do not demand a finding that the prosecution acted in bad faith or that the defense was prejudiced by the lack of earlier disclosure. Thus, admission of the fingerprint evidence was not error. Ware v. State,
4. Appellant enumerates as error the denial of his motion to dismiss based on prosecutorial delay. He never filed a motion for speedy trial. He was indicted and arrested in 1999, and tried only slightly more than a year later. Under the circumstances, there was no violation of his constitutional right to a speedy trial. See Harris v. Hopper,
The remaining question is whether the delay between 1994, when Appellant was first identified as the possible third occupant of Mr. Boyd’s car, and 1999, when he was indicted and arrested, violates due process. Wooten v. State,
A due process violation requires a finding “1) that the delay caused actual prejudice to the defense, and 2) that the delay was the product of deliberate action by the prosecution designed to gain a tactical advantage. [Cits.]” (Emphasis in original.) Wooten v. State, supra at 878 (2). After conducting a hearing, the trial court concluded that Appellant failed to prove either element. He contends that the evidence demands a finding of actual prejudice because some witnesses are now inaccessible and certain evidence has been lost. However, “any prejudice which results merely from the passage of time cannot create the requisite prejudice.” Wooten v. State, supra at 880 (3). As for the second prong, Appellant showed, at most, that the delay between 1994 and 1999 was the result of the State’s decision to conduct further investigation and to obtain additional evidence. Delay occasioned by the ongoing investigation of a case does not rise to the level of a due process violation. Andrews v. State,
5. In the course of explaining his relationship with Appellant, Hill testified that he met him at the Augusta Youth Detention Center. To corroborate this testimony and to rebut Appellant’s denial that he knew Hill, the State introduced evidence showing that the two were incarcerated together at the facility. Appellant urges that Hill’s testimony and the corroborating evidence were inadmissible because they reflected on his character.
A passing reference to a defendant’s record does not put his character into issue. Isaac v. State,
6. Evidence of Appellant’s alleged use of aliases did not place his character into evidence. McCord v. State,
8. The trial court sustained an objection to a portion of the prosecutor’s closing argument, and defense counsel did not request any further relief. Contrary to Appellant’s contention, the trial court was not required, on its own motion, to rebuke counsel for the State or to give curative instructions. Palmer v. State,
9. At the hearing on the motion for new trial, the trial court refused to consider testimony from a juror who claimed that her vote for the guilty verdict resulted from coercive pressure applied by other members of the jury. The proffered testimony was not within any exception to the general rule that jurors are incompetent to impeach their own verdict. OCGA § 17-9-41; Oliver v. State,
10. Appellant contends that his trial counsel was ineffective. To prevail on that claim, he must show that the attorney’s performance was deficient and that there is a reasonable likelihood that, but for his errors, the jury would have returned a different verdict. Strickland v. Washington,
When considering defense counsel’s performance, there is a critical distinction between inadequate preparation and unwise tactical and strategic decisions. Jackson v. State,
“From the evidence presented at the hearing, the trial court was authorized to find that the failure to do what [A]ppellant now claims should have been done was due to counsel’s trial strategy, and not a result of inadequate preparation or presentation.” [Cit.]
Roberts v. State,
Judgment affirmed.
Notes
The crime was committed on October 10, 1985. The grand jury indicted Appellant on April 16, 1999, and he was arrested in May of 1999. The jury returned the guilty verdict on July 5, 2000, and the trial court entered judgment of conviction and imposed the life sentence on August 4, 2000. Appellant filed a motion for new trial on August 8, 2000, which the trial court denied on September 20, 2002. On December 2, 2002, the trial court granted Appellant an out-of-time appeal, and he filed a notice of appeal the following day. The case was docketed in this Court on February 28, 2003. The appeal was orally argued on May 20, 2003.
Concurrence Opinion
concurring specially.
The majority opinion affirms Roebuck’s conviction by concluding that an expert’s opinion corroborates an accomplice’s testimony that Roebuck committed the crime. In fact, however, the only corroborating evidence is the inadmissible hearsay upon which the expert relied. But because Roebuck did not object to the admission of the hearsay, and because we should overrule our prior cases holding that hearsay has no probative value even when admitted without objection, I would hold that the hearsay admitted in this case can serve as the necessary corroborating evidence. Therefore, I concur in the judgment.
1. There must be at least some evidence to corroborate the accomplice’s testimony.
The print card was hearsay because it rested “mainly on the veracity and competency of other persons”;
The majority’s opinion has effectively allowed an expert to serve as a conduit for introducing inadmissible evidence. The Court of Appeals has cautioned that such reasoning “would permit the admission of hearsay, speculation, and unsupported opinion, by the simple expedient of asking an expert to read the inadmissible matter into the record or testify to it while asserting that he relied upon it.”
The rule that hearsay has no probative value even if unobjected to at trial was abandoned by the U.S. Supreme Court in the early twentieth century in Diaz v. United States.
This rule creates an exception to the general rule in Georgia that errors not objected to at trial cannot be raised on appeal.
I have great respect for the principles of stare decisis. But as I recently noted in Hudson v. State, “‘the rule of stare decisis is a wholesome one, but should not be used to sanctify and perpetuate error. . . .’ ”
See OCGA § 24-4-8 (in “felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness. . . .”); Cummings v. State,
OCGA § 24-3-1 (a).
Loper v. Drury,
Grant v. Lewis/Boyle, Inc.,
See, e.g., Department of Corrections v. Williams,
See Acliese v. State,
Paul S. Milich, Georgia Rules of Evidence, § 16.7.
Id.
Id.
See Acliese,
Dissenting Opinion
dissenting.
I agree with Chief Justice Fletcher’s conclusion in his special concurrence that the expert’s testimony regarding the palm print was inadmissible hearsay.
See Div. 1 of Chief Justice Fletcher’s special concurrence.
See Div. 2 of Chief Justice Fletcher’s special concurrence.
See, e.g., Woodruff v. Woodruff,