Anderson v. State

• Decision Date: 17 February 1982
• Docket Number: No. 37789,37789
• Citation: 287 S.E.2d 195,249 Ga. 132
• Parties: Wilbert ANDERSON v. The STATE.
• Court: Georgia Supreme Court

Page 195

287 S.E.2d 195

249 Ga. 132

Wilbert ANDERSON v. The STATE.

No. 37789.

Supreme Court of Georgia.

Feb. 17, 1982.

Rehearing Denied March 10, 1982.

Wilbert Anderson, pro se.

Louise Thornton Hornsby, Atlanta, for Wilbert Anderson.

Lewis R. Slaton, Dist. Atty., Atlanta, Arthur K. Bolton, Atty. Gen., Atlanta, for the State.

CLARKE, Justice.

Wilbert Anderson was convicted of murder and armed robbery and was sentenced to life in prison. He appeals.

1. Fay Garrison, an employee of Rich's, Inc., was shot and killed during an armed robbery of the branch of the United States Post Office located in Rich's Store for Homes in Atlanta. Ms. Garrison, who worked as a clerk in the post office, was killed during the afternoon of January 14 1980, in the presence of numerous witnesses. Six witnesses testified that the perpetrator was a tall, thin, black man who wore a black and grey wig and an obviously false moustache as a disguise. There was testimony that he wore a tan raincoat and also a tweed hat, which he dropped in the store.

A friend of appellant, Robert Ryan, contacted police on the day of the crime and told them that two days prior to the shooting appellant showed him a grey and black wig, handcuffs and a cardboard holding four false moustaches. He said that appellant told him that he was going to disguise himself and take some money. Ryan testified at trial that appellant tried to borrow money and a gun from him on numerous occasions. After contacting police, Ryan pointed out appellant's apartment.

The police procured a search warrant and arrest warrant and went to appellant's apartment on the evening of January 14. Police took from the apartment a tan raincoat, a .357 spent shell casing (recovered from appellant's pants pocket), $37.00 found crumpled on appellant's bed, a moustache and two false goatees. From the kitchen trash can police took a wad of black and grey synthetic wig, two handcuff boxes, pieces of an afro wig box, and plastic impressions of a nose, eyes and lips. Grey and black synthetic material was found on top of appellant's head. Appellant was arrested.

Two lineups were held. Four witnesses picked out appellant at the second lineup with varying degrees of certainty. Another witness could not identify appellant precisely but thought he was the perpetrator. Six witnesses identified him at trial with varying degrees of certainty.

Two witnesses from appellant's neighborhood testified to seeing him wear a hat. One indicated that he wore one like the one dropped by the perpetrator in Rich's. The other testified that the hat dropped in Rich's, State's Exhibit 5, was the hat she had seen appellant wear.

There was testimony that appellant was once employed by a janitorial service and had worked at the Lenox Summit Apartments. Ms. Garrison, the victim, was a resident of the Lenox Summit Apartments. A witness testified that she had asked about appellant, saying that he owed her money.

Offie Evans was serving time in the Fulton County jail when appellant was incarcerated there. He testified that he had known appellant previously and that he saw him at the dentist's office in the jail. He testified to conversations he had with appellant. Appellant told him that he had gone to Rich's approximately three times in his disguise with a grey wig, black moustache and trench coat. He felt that his disguise hid him. However, he told Evans that he shot Ms. Garrison because he thought she might recognize him, having known him at the apartments. Appellant also told him that he used a .38 caliber cartridge in a .357 magnum gun.

A state firearms examiner testified that the .38 caliber bullet recovered from the victim was consistent with one being fired from the same type cartridge case found in appellant's pocket. A state crime lab microanalyst compared hair samples from the hat dropped in Rich's with hairs from appellant's head and from the head of another subject. He testified to his opinion that the hair from the hat was similar to appellant's hair. The fibers recovered from the hairpieces and several false goatees were compared with fibers taken from the hat and found to be dissimilar.

Appellant in his first enumeration of error alleges that the evidence was not sufficient to support the verdict. We find that the evidence at the trial of appellant was sufficient to meet the test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), that "... after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. The first enumeration of error is without merit.

2. Appellant's enumerations of error nos. 2, 6, and 9 concern the trial court's denial of his motion in limine whereby he attempted to exclude evidence of an escape attempt. Appellant argues that since escape is a crime, and since testimony as to a defendant's prior crimes is rarely allowed, it was error to deny his motion. Where evidence is introduced for the purpose of showing flight, it is not inadmissible because it incidentally tends to show evidence of another crime. Johnson v. State, 188 Ga. 771, 4 S.E.2d 639 (1939). See also, Dampier v. State, 245 Ga. 427, 265 S.E.2d 565 (1980); Johnson v. State, 244 Ga. 295, 260 S.E.2d 23 (1979).

3. In enumeration of error no. 4 appellant alleges that the court erred in failing to grant appellant's motion for a change of venue. Appellant argues that the state court did not have jurisdiction because the crime took place in a U.S. Post Office. There was no testimony at trial which would show that the crime in question occurred on exclusively federal territory so as to mandate jurisdiction in a federal court. Rather, the testimony showed that the post office was located on property owned by Rich's and was operated by Rich's employees. The connection with the postal service consisted of a contract with Rich's to operate the post office in return for a monthly fee. The federal statutes do not "... take away or impair the jurisdiction of the courts of the several States...." 18 U.S.C.A. § 3231. See also Code Ann. §§ 26-301, 302.

4. In appellant's enumeration of error no. 5 he complains of the trial court's denial of his motion to dismiss the indictment for lack of probable cause. This enumeration is without merit because once the grand jury returns an indictment, the state is not required to make a further showing of probable cause. First National Bank and Trust Co. v. State, 237 Ga. 112, 227 S.E.2d 20 (1976). "While the trial court has the authority to quash an indictment for defects appearing on its face (cites omitted), it has no authority to quash the indictment on the issue of an alleged lack of probable cause." Id. at 112-113, 227 S.E.2d 20.

5. In his fifth and nineteenth enumerations of error, appellant argues that the court erred in denying his motion to suppress evidence gathered in a search on the basis that the warrant was issued without probable cause. The thrust of appellant's argument is that the reliability of the information or of the informant upon whose information the search warrant was granted was not shown by the affidavit accompanying the application for the search warrant. As appellant points out, the test for accessing the reliability of an informant and his information is set out in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723) (1964). Under Aguilar, the affidavit presented in support of an application for a search warrant must inform the magistrate of some underlying circumstances which allow the magistrate to test the reliability of the informant's information as to the location of the material sought and some underlying circumstances which inform the magistrate of the basis of the officer's conclusion that the informant is reliable. Here the informant's belief that his information was reliable came from his first-hand knowledge that the appellant had a wig and planned to buy a moustache and that appellant tried to borrow money and a pistol from the informant. It was reasonable for the officers to assume that the wig and moustache could be found at appellant's residence. The officers' belief that the informant was reliable was based upon the fact that the informant had supplied reliable information leading to a conviction in the past. Although that information had not been supplied directly to the officers involved here, it had been supplied by this informant in another case handled by the Atlanta Police Department, and the officers were able to review the file. This meets the tests set out in Aguilar, supra, for determining that information contained in an affidavit in support of a search warrant is reliable.

The search is also attacked on the ground that the warrant did not contain a specific location of the premises to be searched. Appellant argues that the warrant was not specific enough because it contained no city or state. The warrant did show, as well as the street address, a heading indicating that the warrant was issued by the Municipal Court of Atlanta,...