The testimony complained of was clearly within the area of the witness' expertise, and the appellant's objection to it went to its weight rather than its admissibility. See generally Jenkins v. State, 156 Ga. App. 387 ( 274 S.E.2d 618) (1980); Breland v. State, 134 Ga. App. 259 ( 214 S.E.2d 186) (1975). Judgment affirmed. Carley, J., concurs in the majority opinion only. Deen, P. J., concurs specially.
Greg Paul Dennis and David Lee Jenkins were indicted jointly on separate indictments for the offenses of armed robbery, rape and kidnapping. Jenkins moved for severance and was tried separately and convicted in September 1978. See Jenkins v. State, 156 Ga. App. 387 ( 274 S.E.2d 618). Dennis then was re-indicted for kidnapping with bodily injury (stabbing the victim in the chest with a knife) apparently in lieu of the simple kidnapping charge. Defendant Dennis was then tried and convicted of kidnapping with bodily injury, armed robbery and rape and sentenced to serve three separate life terms to be served consecutively.
Cases in other jurisdictions have considered the scientific-reliability issue directly, with mixed results. Admission of electrophoretic tests of crime-scene stains was upheld in Jenkins v. State (1980) 156 Ga. App. 387 [ 274 S.E.2d 618]. But Georgia appears to reject the Frye test, allowing the jury to assess the weight and relevance of all expert and scientific evidence.
See Korn, 66 Columbia L. Rev. 1086-1092, supra. Defendant urges that the Frye rule has been abrogated by the Court of Appeals' decision in Jenkins v. State, 156 Ga. App. 387 ( 274 S.E.2d 618) (1980). In that case, the trial court admitted the results of an electrophoresis procedure, over an objection that the reliability of the procedure had not been demonstrated.
He argues that the victim's sexual history, or lack thereof, was not relevant to the charges and should have been excluded. Citing Jenkins v. State, 156 Ga. App. 387 (5) ( 274 S.E.2d 618) (1980), and Collins v. State, 171 Ga. App. 906, 910 (3) ( 321 S.E.2d 757) (1984), the State argues that evidence of the victim's virginity was relevant to prove the extent of the injuries caused by the rape. We agree with Herndon that evidence that the victim was a virgin — meaning that she had not had prior sexual relations — was inadmissible.
While the better practice would have been to completely separate potential witnesses during the identification procedure, we do not find the procedure used in the instant case to be so suggestive as to taint the subsequent in-court identification. Although the witnesses were in the same room, there was testimony to the effect that during the procedure they were unable to see which photos the others were viewing or hear any conversation at the table with the photos from the other table and were unaware if identifications had been made by the other witnesses. Jenkins v. State, 156 Ga. App. 387 (1) ( 274 S.E.2d 618) (1980). Finally, although Lucas was in an adjoining room at the time of the photo lineup, there is no evidence that he was seen by the witnesses.
The evidence was therefore relevant and could be admitted despite appellant's argument it tended to damage of impair his case. Jenkins v. State, 156 Ga. App. 387, 388 ( 274 S.E.2d 618) (1980). The transcript shows, however, that the court sustained appellant's objection and instructed the jury to disregard the answer.
The trial court, as the finder of fact in the instant case, was authorized to consider the expert's credentials and then give such weight and credence to the expert's testimony as it deemed appropriate. Body v. State, 207 Ga. 567 (1) ( 63 S.E.2d 394) (1951); Roland v. State, 137 Ga. App. 796, 798 (4) ( 224 S.E.2d 846) (1976); Jenkins v. State, 156 Ga. App. 387, 388 (2) (4) ( 274 S.E.2d 618) (1980). Code Ann. § 38-1705 provides that "[t]he right of cross-examination, thorough and sifting, shall belong to every party as to the witnesses called against him. . .
It was not disputed that the witness in the instant case was an expert in the field of microanalysis; therefore, his opinion that the hairs found at the scene of the crime and the pubic hair of appellant could have a common origin is admissible under the provisions of § 38-1710. Jenkins v. State, 156 Ga. App. 387, 388 (2) ( 274 S.E.2d 618) (1980). In Jenkins, we stated: "The [expert] witness explained the procedure, thereby giving the facts on which his opinion was based.
Lynn v. State, 231 Ga. 559 (1) ( 203 S.E.2d 221) (1974). See also Jenkins v. State, 156 Ga. App. 387 (5) ( 274 S.E.2d 618) (1980). Because the alleged rapes and aggravated sodomy constituted evidence of the bodily injury here, their proof was as relevant to the kidnapping conviction as though the appellant had been charged with those offenses.