Banks v. State, 36170
| Court | Supreme Court of Georgia |
| Citation | 246 Ga. 178,269 S.E.2d 450 |
| Docket Number | No. 36170,36170 |
| Parties | BANKS v. The STATE. |
| Decision Date | 16 July 1980 |
Thurbert E. Baker, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., H. Allen Moye, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Mary Beth Westmoreland, Staff Asst. Atty. Gen., for appellee.
John M. Banks was indicted for the murder of Angela Wilson, and for two counts of aggravated assault against Rhonda Hightower and Monica Ward. Following verdicts of guilty he was sentenced to life imprisonment for the murder and ten years on each aggravated assault charge. His motion for new trial was denied and he appeals to this court.
We affirm.
1. Appellant contends, based on general grounds, that the verdicts are contrary to the evidence and without evidence to support them. His contention in that respect is totally without merit. The evidence at trial showed that three separate instances occurred in Atlanta, Georgia on May 7, 1979 in which appellant assaulted three teen-aged girls, killing one of them, shooting another and pointing a gun at the third. One of the victims, a 15-year-old, was walking down a public street during the afternoon when she observed appellant driving slowly behind her in a brown Camaro automobile. The driver pulled up near to her and parked adjacent to the curb. As this victim walked by on the passenger side appellant got out of his car, looked at the back tires and reached under the car seat. He pulled out a gun and stated to the victim "Get in my car or I will shoot." As the victim ran toward the house of a friend appellant fired one shot missing her and upon firing a second time struck her in the right arm. He subsequently fired additional gunshots. This victim identified appellant in a police line-up as the man who shot her. On that same day a second victim near the scene of the first shooting, was sitting on the front steps of Sylvan High School waiting for her mother to pick her up. The victim noticed a brown Camaro drive by and circle around the block more than once. The car then pulled up to the school sidewalk to within approximately seven feet of this victim. A man pointed a gun out the passenger side window at the victim and told her to get in his car or be shot. The victim then ran behind the car and across the street. As she fled she observed the license tag on the car. The man sat there a few seconds and drove off. Later that same day 17 year old Angela Wilson visited a local shopping center to buy some diapers for her baby. A brown Camaro was seen parked near the Woolco Store in the shopping center with the door standing open. Employees of the store heard a scream and saw appellant pulling the third victim by the arm and shirt toward his car. The victim broke loose and ran across a nearby street. As she did appellant caught up with her and grabbed her arm a second time. He then pulled out a gun and shot her twice, in the head and side as she struggled to free herself. He then pointed his gun at certain employees and drove away. Upon an Atlanta police officer being called to the scene, the third victim was found lying on the sidewalk across the street from the parking lot entrance. The investigating officer recovered a .38 caliber bullet near the victim's body. Although this victim was hospitalized she died a short time later from a gunshot wound which entered the top of her head, passed through her brain and exited through the left ear. Pursuant to the license tag information and witness accounts a warrant was issued for appellant. A brown Camaro with the identified license tag number was stopped later that night by police officers. Appellant was a passenger in the car at the time it was stopped. The officers searched appellant and noticed a shirt lying between the seat belt apparatus and the back of the vehicle a few inches from appellant's leg. One of the officers picked up the shirt and as he did so a .38 revolver fell out. Appellant was arrested and made an oral statement to Lt. W. K. Perry who was in charge of the homicide squad. Appellant made a written statement the next morning. At trial, following a Jackson v. Denno hearing, the court ruled the statement was freely and voluntarily given. In this statement appellant admitted his prior activities on the day under investigation. A State Crime Lab expert conducted tests on the bullet and the pistol. Testimony was offered that the tested bullet was fired from appellant's gun. Other pertinent evidence was also introduced which together with the above clearly proved Banks' guilt on all counts. We conclude that any rational trier of fact could determine that all three offenses were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Appellant contends that the gun taken by the police officer at the time of the arrest should not have been admitted in evidence saying that it was obtained by the officer through an impermissible search of defendant's car. This contention is without merit. At the time of his arrest the investigating officers had obtained a warrant based on the investigation of the case made to that point. A law officer testified that when the car was stopped he went to the passenger side and searched a suspect who was appellant. He required him to lean against the car with the door open and based on the information he had obtained regarding appellant's activities during the day he had reason to believe there might be a pistol in the vicinity of the arrest. The officer testified that as he was searching appellant he noticed the shirt as above recited. The officer was making sure there was no weapon hidden there when the gun fell out. He testified further that he picked the shirt up for his own protection. The State admits that no search warrant had been issued at the time of the arrest. There is no evidence that the automobile was searched as such, but the preliminary search to find the gun was made incident to arrest which is entirely proper. It is reasonable that when a lawful arrest is made the arresting officer may remove any weapons that the suspect might seek to use to try to resist arrest or to escape. Further it is reasonable for an officer...
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