Hicks v. State
Hicks v. State
Opinion of the Court
1. In an alleged consent search the burden is on the state to establish that the consent was voluntarily given and not the result of duress or coercion. Schneckloth v. Bustamonte, 412 U. S. 218 (93 SC 2041, 36 LE2d 854) (1973); Code v. State, 234 Ga. 90, 93 (214 SE2d 873) (1975). The defendant here signed a consent to search. On a hearing on the motion to suppress based on the contention that the signature was forced, Hicks took the stand and testified that the only reason he signed the consent form just prior to the search was because the officers told him that if he did not sign it they would go and get a search warrant and “I was saving them time. I know they would come back . . . Q. That’s your basis for saying that it wasn’t freely and voluntarily given because they told you they would get one anyway, is that right? A. Yes.” The facts are very, close to those in Merrill v. State, 130 Ga. App. 745, 751 (4) (204 SE2d 632) (1974). The defendant was not under arrest, his testimony substantially corresponded with that of the officer obtaining the consent signature, and no facts supporting a determination of overreaching on the part of the police were offered. Accordingly, the motion was properly denied.
2. The ensuing search of the defendant’s trailer netted something described as a small clump of brown material in a sock in a dresser drawer. The officer conducting the search undertook to identify this material and first stated that he concluded it was suspected hashish, but, asked to repeat his answer, then said simply “hashish.” He delivered the entire clump to the State Crime Laboratory approximately a month prior to this hearing, and so far no report has been received.
3. The petition for revocation also charged a violation of law in that the defendant committed a simple battery on a police officer. As the police officer approached the defendant, who was seated in an automobile, the latter, recognizing him, kicked open the car door and fled. The door struck the officer and knocked him down. The evidence is in conflict as to whether this was an accident or was
Judgment affirmed.
Dissenting Opinion
dissenting.
1. I respectfully dissent from Division'2 of the majority opinion. I agree that one who makes no claim to be an expert is not disqualified from expressing an opinion if the court finds him to be an expert, or possessing expertise or special knowledge, in certain fields. Code Ann. § 38-1708; Glover v. State, 129 Ga. 717, 724 (9) (59 SE 816) (1907); Thornton v. Gaillard, 111 Ga. App. 371, 372 (2) (141 SE2d 771) (1965).
One who qualifies as an expert does so on the basis of his training, education and experience. Once his qualifications are established, an expert need not give the facts upon which his opinion is based. Lewis v. State Hwy. Dept., 110 Ga. App. 845, 847 (2) (140 SE2d 109) (1964). However, a non-expert (lay) witness can only give opinion testimony when he gives sufficient facts to show the basis of his opinion. Code Ann. § 38-1708; Spencer v. State, 236 Ga. 697, 700 (4) (c) (224 SE2d 910) (1976). This is the fundamental difference between the opinions of experts and lay witnesses.
In the instant case no foundation was laid to support a finding that the police officer was an expert in identifying hashish or that he was a narcotics expert, although such a determination rests primarily in the sound discretion of the court. Rouse v. Fussell, 106 Ga. App. 259, 262 (126 SE2d 830) (1962). If he was a non-expert, the facts upon which his opinion or conclusion was based were not stated, and thus his opinion that the clump of brown material was “suspected hashish” (later changed to “hashish”) was not admissible. Spencer, supra. Hence, I cannot agree that there was sufficient evidence to sustain the revocation of appellant’s probation on this ground.
2. I concur in Divisions 1 arid 3 of the majority opinion.
I am authorized to state that Judge Carley joins in this dissent.
Reference
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- Hicks v. the State
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