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Clark v. State

Supreme Court of Georgia
Feb 16, 1982
287 S.E.2d 523 (Ga. 1982)




Certiorari to the Court of Appeals of Georgia — 159 Ga. App. 136.

W. P. Johnson, Sam D. Price, for appellant.

Arthur E. Mallory III, District Attorney, Harger W. Hoyt, Assistant District Attorney, for appellee.

We granted certiorari to review the Court of Appeals' holding that Cooper v. State, 182 Ga. 42 (2) ( 184 S.E. 716) (1936), authorized the introduction of appellant's "mug shot" notwithstanding that it was captioned "Police Department, Carrollton, Georgia" and contained a date that preceded the date of the offense for which appellant was on trial. See Clark v. State, 159 Ga. App. 136 ( 282 S.E.2d 752) (1981).

The record, however, reveals that the only ground of objection raised at trial related to the mug shot being part of an "impermissibly suggestive" photographic display. Such an objection does not raise the issue presented in the application for certiorari, i.e., whether the photograph impermissibly placed appellant's character into issue.

It is well settled that "[g]rounds which may be considered on appeal are [generally] limited to those which were urged before the trial court. Kitchens v. State, 228 Ga. 624 (1) ( 187 S.E.2d 268) (1972)." Kingston v. State, 127 Ga. App. 660, 661 ( 194 S.E.2d 675) (1972). We find no basis for departing from this principle in the instant case. See United States v. Fosher, 568 F.2d 207, 214 (5th Cir. 1978). The criteria for the grant of certiorari not being satisfied, the writ is hereby vacated.

Writ of certiorari vacated. All the Justices concur, except Weltner, J., who concurs specially.


I concur entirely in the Per Curiam opinion, and add this special concurrence only to address substantively the general question of the use of a photograph of an accused (commonly called a "mug shot") which discloses, upon its face, that the photograph was taken pursuant to a police procedure.

Independently of the rules of law, it is incontestable that the prior criminal record of an accused can serve to enlighten an inquirer on matters such as motive, intent, and state of mind — all of which are in fact relevant to the issue of guilt or innocence in the prosecution for a subsequent crime. (Can anyone deny that evidence of four prior convictions for burglary will serve to illuminate the intent of an intruder caught within another's home at midnight?)

As a policy consideration — whether right or wrong — courts uniformly have excluded such information unless an accused first places his character into issue.

Our Per Curiam opinion does not reach the substantive question as to whether the photograph in this case impermissibly placed the accused's character into issue, and this special concurrence, relating as it does to that contention, is dictum. Nonetheless, I record my view, for what value it might be, which is this: a photograph of an accused which on its face contains a caption similar to that in this case "Police Department, Carrollton, Georgia," and a date which precedes the date of the offense for which the accused was prosecuted is the substantive equivalent of oral testimony establishing that the accused was arrested, photographed, and "booked" (whatever that means to the lay mind) by the police authorities of Carrollton, Georgia, on a date preceding the date of the offense for which he is being prosecuted.

Equivalent oral testimony would be prohibited under our law. A photograph, which is but graphic witness to the same event, should likewise be excluded — particularly as the evil may be exercised by one snip of the scissors.

Summaries of

Clark v. State

Supreme Court of Georgia
Feb 16, 1982
287 S.E.2d 523 (Ga. 1982)
Case details for

Clark v. State

Case Details

Full title:CLARK v. THE STATE

Court:Supreme Court of Georgia

Date published: Feb 16, 1982


287 S.E.2d 523 (Ga. 1982)
287 S.E.2d 523

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