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SMITH v. STATE

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Court of Appeals of Georgia.

SMITH v. The STATE.

No. A01A1057.

Decided: April 11, 2001

Gregory J. Lohmeier, Decatur, for appellant. J. Tom Morgan, Dist. Atty. Jeanne M. Canavan, Joseph N. Walden III, Asst. Dist. Attys. for appellee.

Chigiger Smith and his co-defendants Brown and Johnson were charged with two counts of aggravated assault for shooting Steven Aaron twice with a handgun and with one count of burglary for entering and remaining in “the building of Steven Aaron” with intent to commit theft.   In this appeal of his convictions, Smith claims that the evidence was insufficient to show that he intended to commit theft in the building referred to in the indictment or that such building belonged to Aaron.   Smith also contends that the trial court erred in allowing a police officer to testify that Aaron identified him from a pretrial photographic lineup.   We find no merit in these claims of error and affirm.

State's evidence showed that Smith, Brown, and Johnson, acting individually and in concert, accosted Aaron on the street, robbed him at gunpoint of approximately $1,300, forced him into a car, and drove him to a house owned by his mother.   Although no one resided in the house at the time, Aaron stored his personal property there and had authority from his mother to enter the premises.

Upon arriving at the house, one of Aaron's abductors shot him in the hip as he tried to escape.   The other two kicked in the front door of the house, activating the burglar alarm.   They then forced Aaron into the house and began to ransack it.   When the police arrived in response to the burglar alarm, Aaron was shot in the back while trying to escape again.

His three assailants then fled the scene on foot.   Within minutes, a police officer observed Smith in a shopping plaza located in the direction the suspects had run.   The officer stopped Smith because his clothing fit the description of one of the suspects and he was sweating.   Smith attempted unsuccessfully to escape the officer's detention.   Approximately $1,500 was found in his possession.

When returned to the scene of the crimes, Smith was identified by an officer who had seen him exit the house.   Approximately two weeks later, Aaron viewed a photographic lineup and positively identified Smith as the man who had shot him.   At trial, approximately one year later, Aaron identified Johnson as the person who had shot him.   Over hearsay objection by Smith's attorney, the officer who had shown Aaron the photographic lineup was allowed to present evidence concerning Aaron's pretrial identification of Smith.

 1. Evidence that Smith and his cohorts had robbed Aaron once and were ransacking the house when interrupted by the police authorized the jury to find that their intent in entering and remaining in the house was to commit theft again.1

 2. Although Aaron's mother was the owner of the house, the evidence showed that Aaron had a possessory interest in it superior to that of the burglars.   Therefore, as between Aaron and Smith, it was the “building of Steven Aaron.”   Because a building may be the situs of a burglary even if it is not being used as a dwelling house,2 proof that Aaron was an occupant of the building was not necessary to sustain Smith's burglary conviction.3

 3. Smith's claim that the officer's identification testimony constituted impermissible hearsay raises troublesome questions.4

Because the testimony was admitted to prove the truth of the matter asserted, it “certainly appears to be hearsay.” 5  But this court has repeatedly held that “[a] law enforcement officer is permitted to testify to a vocal fact of identification witnessed by himself without its being subject to a hearsay objection.” 6

In Tuten v. State,7 Neal v. State,8 and Wade v. State,9 we questioned the soundness of this rule but found ourselves bound by it, because it was established by the Supreme Court of Georgia in Haralson v. State.10  In this case, as in Hassan v. State,11 the defendant argues that Haralson has been implicitly overruled by more recent Supreme Court cases, such as Brown v. State.12  After Brown, however, the Supreme Court decided Peebles v. State13 in conformity with Haralson.   For this reason, the Supreme Court subsequently held in Painter v. State14 that it would not follow Brown.

Therefore, we remain bound by Haralson.   And even if we were not so bound, this case does not present a proper vehicle to reconsider the correctness of the rule announced in Haralson, because Aaron did testify at trial and “presumably could have been cross-examined by the defendant following the officer's testimony had the defendant so requested.” 15  Therefore, the purpose of the hearsay rule was satisfied.16

Judgment affirmed.

FOOTNOTES

1.   See generally Legg v. State, 204 Ga.App. 356, 357(1), 419 S.E.2d 151 (1992).

2.   See OCGA § 16-7-1(a);  Franks v. State, 240 Ga.App. 685, 687(1), 524 S.E.2d 545 (1999).

3.   Compare Murphy v. State, 238 Ga. 725, 728(2), 234 S.E.2d 911 (1977) (law requires indictment to show that dwelling was occupied by the victim).

4.   See Neal v. State, 211 Ga.App. 829, 830(1)(b), 440 S.E.2d 717 (1994).

5.   Id.

6.   (Citations and punctuation omitted.)  Id.;  White v. State, 244 Ga.App. 54, 55(1), 537 S.E.2d 364 (2000) (cert.granted);  Tuten v. State, 242 Ga.App. 223, 227(6), 529 S.E.2d 221 (2000);  Thompson v. State, 240 Ga.App. 26, 31(6), 521 S.E.2d 876 (1999);  Ingram v. State, 233 Ga.App. 356, 357(1), 504 S.E.2d 254 (1998);  Abrams v. State, 229 Ga.App. 152, 153(1), 493 S.E.2d 561 (1997);  Holt v. State, 210 Ga.App. 81(2), 435 S.E.2d 288 (1993);  Wade v.. State, 208 Ga.App. 700(1), 431 S.E.2d 398 (1993);  Woodard v. State, 175 Ga.App. 449, 450(3), 333 S.E.2d 645 (1985);  see Williams v. State, 224 Ga.App. 665(2), 482 S.E.2d 415 (1997);  Hassan v. State, 216 Ga.App. 484, 455 S.E.2d 314 (1995);  Barker v. State, 211 Ga.App. 279, 280(5), 438 S.E.2d 649 (1993).

7.   Supra.

8.   Supra.

9.   Supra.

10.   234 Ga. 406, 408(4), 216 S.E.2d 304 (1975).

11.   Supra.

12.   234 Ga. 632, 633(1), 217 S.E.2d 150 (1975).

13.   236 Ga. 93, 95(1), 222 S.E.2d 376 (1976).

14.   237 Ga. 30, 32, 226 S.E.2d 578 (1976).

15.   Hassan v. State, supra, 216 Ga.App. at 484-485, 455 S.E.2d 314.

16.   Abrams v. State, supra, citing Cuzzort v. State, 254 Ga. 745, 334 S.E.2d 661 (1985).

PHIPPS, Judge.

SMITH, P.J., and BARNES, J., concur.

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