Mingo v. State , 155 Ga. App. 284 ( 1980 )

Smith, Judge,

dissenting.

For the reasons expressed in Judge Webb’s dissenting opinion in Dickerson v. State, 136 Ga. App. 885, 887-897 (222 SE2d 649) (1975), I strongly believe the “preponderance of the evidence” test should have been applied in determining whether appellant violated the terms of his probation. See American Bar Association Project on Standards for Criminal Justice, Standards Relating to Probation, § 5.4 (Approved Draft 1970). However, even under existing standards, I do not believe appellant’s probation revocation was proper. I, therefore, respectfully dissent.

The existing standard of proof in Georgia probation revocation proceedings is governed by the so-called “slight evidence” rule. Under this rule, “[o]nly slight evidence is required to authorize revocation, Sellers v. State, 107 Ga. App. 516, 518 (130 SE2d 790), and where there is even slight evidence of misconduct, the appellate court will not interfere with revocation unless there has been manifest abuse of discretion. Rowland v. State, 124 Ga. App. 494(3) (184 SE2d 494); Turner v. State, 119 Ga. App. 117 (166 SE2d 582).” Boston v. State, 128 Ga. App. 576 (197 SE2d 504) (1973).

Appellant’s probation revocation was based upon the uncorroborated testimony of an alleged accomplice. Although such testimony is not insufficient per se to establish a violation of the terms of probation, “where uncorroborated accomplice testimony is shown to inherently lack credit, or is sufficiently controverted ... an abuse of discretion may become manifest.” Christy v. State, 134 Ga. App. 504, 506 (215 SE2d 267) (1975).

The testimony of the alleged accomplice in the instant case is vague,¹ evasive,² and, at times, incomprehensible.³ In addition the “accomplice” had previously been adjudged a juvenile delinquent and placed in a Youth Development Center. A police officer who was familiar with him testified that, in the past, he has appeared to be “emotionally unstable.” The officer stated that on one occasion, “[w]e took him out to the hospital and I don’t know what the results of any examination were, but he was unruly [and] uncontrollable...”

The only testimony aside from that of the alleged accomplice which bears on appellant’s conduct is the testimony of the arresting officer. This testimony places appellant “exactly one block” away from the scene of the crime. Nothing in the officer’s testimony connects appellant with the rock-throwing incident. In the words of the officer, “he [appellant] appeared to be attempting to hitch a ride with a vehicle down there.” In contrast, appellant’s alleged accomplice was observed standing alone, “[d]irectly across the street from Shields’ Jewelry.”

In sum, the record shows the uncorroborated testimony of the alleged accomplice to be inherently lacking in credit. This testimony alone should not be sufficient to deprive appellant of his liberty, albeit “conditional.” See Johnson v. State, 240 Ga. 526, 527 (242 SE2d 53) (1978). I believe the trial court abused its discretion in revoking appellant’s probation. The judgment should be reversed. Christy v. State, supra.

1 For instance, when asked, “Now did anyone ... break out any glass that night?,” the alleged accomplice responded, “I don’t know.” The accomplice was then asked the following question: “Well, did you see anyone... break out any glass that night?” On this occasion, the alleged accomplice responded: “I seen Mingo broke out the jewelry store . .

2 When asked, “Are you in a Youthful Offender Detention Home?,” the witness answered, “I don’t know, sir.” The witness later stated that he lived with a Mr. Neal Taylor. He testified that he lived with Mr. Taylor “[b]ecause I want to.” However, when questioned by the court, the witness gave the following responses: “THE COURT:... Have you had to come to court about this thing? THE WITNESS: Yes. THE COURT: What did the Judge do? THE WITNESS: Sent me off. THE COURT: Sent you off? THE WITNESS: Yes. THE COURT: Well, where are you? THE WITNESS: I went over to YDC. THE COURT: You’ve already come home? THE WITNESS: No, sir.”

The alleged accomplice also testified that, after the incident, Mingo ran “across the street.” This appears to be at odds with the testimony of the arresting officer. Furthermore, when the witness was asked, “which business or store in downtown Jackson [did] you [run] in the direction of?,” he responded, “I don’t know.”

3 On several occasions the sheriff served as “interpretor” for the alleged accomplice.