HICKS v. THE STATE., 232 Ga. 393, 207 S.E.2.d 30 (1974)
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Summary
Judgment affirmed in part; reversed in part. All the Justices concur.
Summary
Judgment affirmed in part; reversed in part. All the Justices concur.
Text
Michael J. Kovacich, for appellant.
This appeal is from convictions and sentences of appellant alter a trial in DeKalb Superior Court for the offenses of rape, armed robbery and burglary Two life imprisonment sentences and a sentence of 20 years, to run consecutively with each other, were imposed in the trial court for these crimes.
The transcript of evidence reveals that at ap proximately 7:30 a.m. on January 22, 1973, the prosecutrix was awakened in her home in DeKalb County by the barking of the family dog, and as she opened her eyes she saw a black man standing beside her bed with a gun. He threatened harm to her small children if she failed to remain quiet. He then asked where the family kept its money and guns. She replied the family kept no guns and that the only money available was pocket change in her pocketbook. The man then stated he had already taken the money in the pocketbook and pushed the prosecutrix with the gun from the bedroom through the hall and into the den. Again the intruder demanded money and guns, and the prosecutrix, in an effort to comply, stated there was some change in her children's bank. Appellant then replied, "I'm not going through all this for that change," whereupon he demanded the victim remove her nightgown. When she resisted, her children were again threatened and she was forced to disrobe. She was forced to the on the floor with her gown over her face while the intruder, holding the gun on her, committed a sexual assault upon her. He then left with the victim's billfold, which had been taken from her pocketbook before she was awakened, and it contained $12 and several credit cards. Appellant was identified by the victim at a subsequent police lineup following his arrest for another crime unrelated to the present case. After appellant was indicted, tried before a jury and convicted of the present offenses, his motion for a new trial was overruled and that ruling is enumerated as error, along with other alleged errors in the trial court.
The first enumeration of error contained in this appeal asserts that the trial court erred in denying a motion for discovery and for inspection and production of evidence alleged to be favorable to appellant. Prior to the trial, appellant sought an order requiring the prosecution to disclose various materials which might be favorable to the defense. As a result, the trial judge ordered the state to produce both a list of its witnesses and any statements in its possession made by the appellant. In addition, the judge held an in camera inspection of the state's files and ordered disclosure of the lineup photographs and reports. However, the judge specifically refused to order disclosure of medical reports in the state's files, and of material outside those files, consisting of arrest records of the state's witnesses and conversations between police and witnesses not contained in the police reports. On this appeal, appellant cites this order as a breach of constitutional requirements of due process and relies on Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963) in support of this contention.
A part of the material sought by appellant clearly was evidence which was not in the prosecution's file. This evidence could have been obtained only if the prosecution actively sought it. For the trial court to require production by the state of this evidence would require the state to investigate the case for the defense. In our opinion, this goes beyond the constitutional limits of Brady which proscribed the "suppression by the prosecution of evidence favorable to an accused." 373 U. S. 83 (a). The prosecution does not "suppress" evidence by refusing to conduct a search for it, even though the evidence may be more accessible to the state than to the defense. There is no merit in this contention. The other evidence sought by the defense consisted of medical reports which were in the prosecution's file at the time of appellant's pre-trial motion for discovery. These reports came to light when, during appellant's trial, the prosecution introduced evidence of two crimes which occurred in a manner similar to the criminal episode charged in the present indictment. Both of these prior crimes involved a burglary of a residence in the early hours of the morning, and in both cases the wife of the household was forced to submit to a sexual assault. During the trial, the state offered the testimony of the doctors who examined the molested women in these other cases, but the testimony revealed that in one case no motile sperm or other evidence of sexual intercourse was found, while in the other case there were no signs of trauma. This evidence was contained in the medical reports of these two doctors, and it is these medical reports which appellant complains on this appeal were proper for pre-trial disclosure under the Brady rule.
We have long observed that there is no Georgia statute or rule of practice which allows discovery in criminal cases. See Pass v. State,
Appellant's second and third enumerations assert that the trial court erred in allowing testimony of other crimes allegedly committed by him which consisted of two incidents involving burglary, robbery and rape. Appellant concedes that his role in these independent crimes was clearly established, but contends on this appeal that these cases were not shown to be sufficiently similar to the criminal episode for which he was on trial to be probative of his involvement in it. In comparing the two other criminal episodes with the present one, the record shows that all three involved a burglary in the early hours of the morning. These incidents occurred at 7:30 a.m. in the present case, at 1:30 a.m. in another, and between 4 and 5 a.m. in the third. Entry was accomplished through either an unlocked window or an unlocked glass door. In each case, the culprit took small items, such as jewelry, money and guns, eschewing larger items such as a television set. No fingerprints were left because in all three cases the trespasser wore gloves and in each instance a hat was pulled down over the intruder's eyes to conceal his identity. Each case involved a forcible sexual assault on the wife at gunpoint and a threat of harm to other members of the family. The three crimes occurred within a 6-month period and were in a common geographical area.
The general rule is that evidence of an independent crime is never admissible unless the prejudice it creates is outweighed by its relevancy to the issues on trial. See Cawthon v. State,
There was sufficient similarity in each of these instances to make the evidence admissible for the purpose of identifying the appellant as the guilty person in the present case and for illustrating his motive, plan, scheme, bent of mind and course of conduct. See McNeal v. State,
Appellant went to trial on July 18, 1973, and when the state called Mr. Otwell, appellant objected to his testimony on the grounds that he was not named on the original list of witnesses. The court overruled this objection and Mr. Otwell was allowed to testify at the trial. It is this ruling which forms the basis of this enumeration of error. The state argues that appellant was arraigned on June 28, 1973, and that appellant thereafter had waived his right to make a demand for a list of the state's witnesses according to the terms of Code Ann. 27-1403. See Jones v. State,
It is evident that the transcending purpose of this Code section is to insure that an accused is not confronted at trial with testimony against him from witnesses whom he has not had the opportunity to interview prior to trial. See Emmett v. State,
In appellant's fifth enumeration of error, he complains the trial court allowed the prosecuting attorney to put to the jurors the statutory questions provided by Code 59-806. Appellant argues that these questions can be put to the jurors only by the court, and urges in support of this argument the provisions of Code Ann. 59-705 which reads, in part: "In all criminal cases both the State and the defendant shall have the right to an individual examination of each juror from which the jury is to be selected prior to interposing a challenge. Such examination shall be conducted after the administration of a preliminary oath to the panel or, in criminal cases, after the usual voir dire questions have been put by the court . . ." This Code section recognizes the court's ultimate responsibility for seeing that the statutory questions are put to the jurors but the court may delegate this responsibility to its officers, including the prosecuting attorney. See Loomis v. State,
Appellant's seventh enumeration of error is not supported by argument or citation of authority in his brief and must be considered as abandoned under Rule 18 (c) (2) of this court.
In appellant's eighth enumeration of error, complaint is made of the admission of testimony over objection pertaining to a lineup in which appellant was identified as the man who committed the crimes charged in the indictment. It is first argued that this evidence should have been excluded because appellant was not informed that counsel would be appointed to represent him at the lineup if he could not afford an attorney. The record shows that appellant was arrested on April 14, 1973, and charged with the theft of a motor vehicle, a crime unrelated to the crimes with which we are concerned in this appeal. The lineup in question here took place on April 23, 1973, and it was not until the following day that a warrant was obtained for appellant's arrest for the commission of the crimes charged in the present indictment. It is unnecessary to decide whether this lineup took place before formal adversary judicial proceedings had begun in this case within the holding of Kirby v. Illinois, 406 U. S. 682 (92 SC 1877, 32 LE2d 411) (1972), requiring the presence of counsel. We recognize that Kirby does not lay down a hard and fast rule regarding the time when the right of counsel at a lineup attaches, and that the Constitution will protect against abuses in denying this right. However, even if the present lineup took place at a time when there was a right to counsel, any error in the admission of testimony as to the identification of appellant by the victim at the lineup was harmless error in this case. The record clearly shows a positive identification of the appellant by the prosecutrix at the trial independently of the lineup. At one point in her testimony, the victim testified at the trial that, "I couldn't forget his face." No cause for reversal is shown by this enumeration of error. Appellant also argues that the lineup testimony should have been excluded because the state failed to furnish him with a complete lineup report in disobeyance of the superior court's pre-trial order. Although appellant received a lineup report, when Investigator Glenn E. Sellers testified about the lineup it appears that this officer was referring to a supplemental report which appellant claims he did not receive. Appellant cites no case or statute which requires the exclusion of relevant evidence because the prosecution failed to comply in advance of trial with a pre-trial order to disclose evidence to the defendant. In addition, appellant has not shown any facts which
required the trial court to exclude this evidence on the basis of prejudicial surprise. We, therefore, find the eighth enumeration of error also to be without merit.
Appellant argues in his ninth enumeration of error that the trial court erred in not instructing the jury that an emotional outburst by the prosecutrix should be disregarded. The record shows that immediately after the outburst the court ordered the jury to retire and cautioned the witness that she would have to compose herself. While the jury was out, appellant's counsel moved that the remarks be stricken and the trial court so ordered, but when the jury returned the prosecution proceeded with its case, and no instructions to the jury were given. The record shows, however, that appellant's counsel did not bring this oversight to the attention of the court, nor raise any objection to the continuation of the trial. "A party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later." White v. State,
In four other enumerations of error, appellant urges that the trial court should have granted a directed verdict for him on all three counts, and that the verdict was contrary to the evidence and to the law. After carefully reviewing the record, we conclude that the state presented a sufficient case to authorize the jury to convict appellant for the offenses of burglary and rape, and that the evidence supports the verdict on these counts. With respect to the count of armed robbery, the evidence showed that appellant entered the house of the prosecutrix by stealth while she was still asleep. Finding her pocketbook, he took from it the victim's billfold which contained money and credit cards. Subsequently, appellant waked the victim to demand, at gunpoint, money and guns. However, he received nothing further and, at the time he left the premises, he retained only the billfold taken earlier without using force. Appellant urges that this sequence of events cannot support a charge of armed robbery because whatever force and fear was visited upon the victim, came at a time subsequent to the actual taking of the victim's property. The rule which appellant urges is that to constitute armed robbery the force and fear must precede or be contemporaneous with the taking. See 77 CJS 457, Robbery, 11 (1952). The district attorney, on the other hand, argues that "the taking was [a] continuing transaction that ended only when appellant left the house," and also cites the case of Clements v. State,
Richard Bell, District Attorney, Edward H. Kellogg, Jr., for appellee.
1974
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This document cites
- U.S. Supreme Court - Kirby v. Illinois, 406 U.S. 682 (1972)
- U.S. Supreme Court - Brady v. Maryland, 373 U.S. 83 (1963)
- Supreme Court of Georgia - GANDY v. THE STATE., 232 Ga. 105, 205 S.E.2.d 243 (1974)
- Supreme Court of Georgia - EMMETT v. THE STATE., 232 Ga. 110, 205 S.E.2.d 231 (1974)
- Supreme Court of Georgia - WADE v. THE STATE., 231 Ga. 131, 200 S.E.2.d 271 (1973)
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