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State v. Hester7/15/2004
on the now suspect rule that witnesses who appear and testify are presumed to speak the truth, Jones v. State of Ga., 48 Ga. 163 (1873); Gibbs v. State, 8 Ga.App. 107, 68 S.E. 742 (1910). See generally Propriety and Prejudicial Effect of Instruction, in Federal Criminal Trial, That Witnesses Are Presumed to Tell the Truth, 8 ALR Fed. 319.
FN13. The "contrary rule," i.e., the rule of Lankford and Nesbit, may still be valid, despite Tate, in criminal cases based solely on circumstantial evidence when the unimpeached and uncontradicted testimony is that of defense witnesses. See Lyons v. State, 208 Ga.App. 632, 634, 431 S.E.2d 432 (1993). But see Lush v. State, 168 Ga.App. 740, 746, 310 S.E.2d 287 (1983) (Birdsong, J., dissenting).
One prior decision of this Court, State v. Stokes, [FN14] squarely conflicts with the controlling **275 precedents, Tate, [FN15] State v. Hanson, [FN16] and State v. Aguirre. [FN17] The Stokes decision reversed the grant of a *506 motion to suppress, reciting the rule urged in the Tate dissent, and held that the state's evidence could not be rejected by the trial judge "upon the mere surmise that it perhaps might not be in accord with the truth." [FN18] Stokes is overruled.
FN14. 185 Ga.App. 718, 365 S.E.2d 477 (1988).
FN15. Supra.
FN16. Supra.
FN17. Supra.
FN18. (Citations and punctuation omitted.) Stokes, supra at 720, 365 S.E.2d 477. The four decisions cited by Stokes need not be addressed. Two were civil cases. The two criminal cases were distinguishable.
Another prior decision of this Court, on facts similar to those of the case at bar, can be distinguished. In State v. Webb, [FN19] we reversed a trial court's grant of a motion to suppress involving an allegedly illegal U-turn to avoid a roadblock. [FN20] But our decision in Webb did not address the credibility of the state's witnesses. In Webb,the trial court had suppressed the contraband because it determined that the defendant's U-turn had not in fact been illegal and that the state's evidence was the "fruit of an illegal arrest." [FN21] We ruled, as we have in the case sub judice, that the relevant inquiry is not whether the U-turn was in fact in violation of OCGA § 40-6-121 but whether the officer had an articulable suspicion sufficient to justify a Terry stop. In other words, the trial judge had based his ruling on a mistaken view of the law rather than a disbelief of the witnesses. Where it is evident, as in Webb, that the motion to suppress was based upon an erroneous view of the law, we will continue to reverse. [FN22] But when no error of law appears on the record, and the trial court's ruling is based on the credibility of the oral testimony presented at the hearing, we must, under the guidance of the precedents discussed above, leave the decision to the trial judge as the trier of fact.
FN19. 193 Ga.App. 2, 386 S.E.2d 891 (1989).
FN20. Id. at 3(1), 386 S.E.2d 891.
FN21. Id.
FN22. See generally Vansant, supra at 320, 443 S.E.2d 474 (de novo review applied to the trial court's application of the law to undisputed facts).
Judgment affirmed.
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