Code v. State

• Citation: 234 Ga. 90,214 S.E.2d 873
• Decision Date: 08 April 1975
• Docket Number: No. 29558,29558
• Parties: Willie CODE, Jr. v. The STATE.
• Court: Georgia Supreme Court

Page 873

214 S.E.2d 873

234 Ga. 90

Willie CODE, Jr. v. The STATE.

No. 29558.

Supreme Court of Georgia.

April 8, 1975.

Bennett, Mobley & Dantzler, Deryl D. Dantzler, Macon, for appellant.

Fred M. Hasty, Dist. Atty., Walker P. Johnson, Asst. Dist. Atty., Macon, Arthur K. Bolton, Atty. Gen., Thomas O. Duvall, Jr., Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

INGRAM, Justice.

The defendant, Willie Code, Jr., appeals from his conviction and sentences in the Superior Court of Bibb County on two counts of murder and one count of armed robbery. He received two life sentences on the murder counts and a 10-year sentence for the armed robbery, all to be served concurrently. We affirm the judgment of the trial court.

I.

Motion to Suppress.

Prior to trial, defense counsel moved to suppress certain evidence seized during a search of defendant's residence and to suppress incriminating statements made by the defendant while in custody. At the pre-trial hearing on the motion to suppress, the trial judge also considered whether a witness' identification of defendant at defendant's residence and at a subsequent lineup would be admissible at the trial and whether that witness would otherwise be allowed to identify defendant at the trial. The trial judge sustained defendant's motion to the 'show-up' identification of defendant at defendant's residence and to the lineup as impermissibly suggestive in nature, but reserved ruling on the question of whether the witness could otherwise make an in-court identification of defendant at the trial. The trial judge overruled defendant's motion to the search, and resultant evidence seized, by the state at defendant's residence and to the admissibility of two incriminating statements by defendant. Finally, at the trial, the defense objection to the in-court identification of defendant by the witness, Randy Hornaday, was overruled.

II.

Statement of the Case.

The evidence reveals that on the evening of March 27, 1973, Melvin Durden and Clyde Miles, both employees of the Tiger Package Store in Macon, were killed by shotgun blasts. The circumstances at the scene indicated that a robbery had taken place.

Mr. Charles Lee arrived at the Tiger Package Store at approximately 9:45 p.m. in anticipation of seeing Mr. Durden concerning a business matter. Mr. Lee testified that as he approached the store he noticed a Volkswagen leaving the store. Upon entering the store, Mr. Lee discovered the body of Mr. Miles and the cash register drawer ajar. He telephoned the police, and upon arrival they found the body of Mr. Durden outside the back of the store.

A witness, Randy Hornaday, testified that he and a friend were sitting under a bridge on Pio Nono Avenue, the street on which the Tiger Package Store was located, and at about 10 p.m. noticed a green Volkswagen with high back seats and spoke wheels stop under the bridge. The witness further testified that a colored man got out of the car and put some liquor bottles and a rifle or shotgun into the trunk of the car. The witness stated that he then left and went to a friend's house in the neighborhood where he heard news of the shooting. He then went to the package store and told the police officers there what he had observed giving a general description of the colored man he had seen earlier under the bridge.

The police broadcasted this information over their radio. Later that evening, the police received an anonymous telephone call informing them the caller knew a person fitting the description of the person mentioned in the broadcast. The caller named Willie Code. The police compared a description of Willie Code they had in their files with the description given by the witness, Randy Hornaday. Upon discovering the similarity in the descriptions, several police officers visited the Code residence. Upon arrival at the house, the police found a green Volkswagen matching the description of the vehicle given them by the witness Hornaday. A detective who knew the Code family knocked on the door and was admitted by defendant. Several of the officers with him also entered the house and the detective informed defendant and his father, with whom the defendant lived, of the nature of their inquiry and then asked defendant and his father if they (police) could search the house. The detective told both defendant and his father that the police would leave and obtain a search warrant if they desired, but both defendant and his father advised the detective that a warrant would not be necessary and that the police could search the house at that time. A police officer was dispatched to obtain a consent form which was signed by defendant when the officer returned. Defendant was advised of his Miranda rights while the officers were in the house conducting this search.

As the result of the search, a shotgun which apparently had been recently fired, several liquor bottles and $25 in cash were seized by the officers. While the police were conducting this investigation at defendant's residence, the witness, Randy Hornaday, was brought to the scene and he identified the car in defendant's driveway. In addition, upon seeing defendant the witness identified defendant as the man he had seen under the bridge. The defendant was then taken to city hall for further interrogation. A short time after his arrival at city hall, defendant was placed in a lineup and was identified again by the witness Hornaday as the man he saw under the bridge. During the course of his interrogation by the officers, the defendant was informed of certain evidence known to the officers which refuted a claim of alibi made by defendant to the officers. Defendant was also informed that liquor bottles found at his residence appeared to be very similar to liquor bottles taken in the robbery. Defendant then gave a statement to the officers in which he admitted the robbery and the shootings and returned to his house with the officers where he showed them the location of the stolen money which had been hidden there.

III.

Search and Seizure Issue.

Defendant's first enumeration of error is that the trial court erred in overruling his motion to suppress the evidence seized by the state during a search of defendant's residence. Defendant's counsel argues that the consent given by defendant and his father to a search of the house by the officers was invalid under the requirements laid down by the U.S. Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The basic holding of Schneckloth is that, in a consent search, the burden is upon the state to 'demonstrate that the consent was voluntarily given, and not the result of duress or coercion, either express or implied. Voluntariness is a question of fact to be determined from all the circumstances.' Id. p. 248, 93 S.Ct. at 2059. See Hicks v. Caldwell, 231 Ga. 575, 203 S.E.2d 212 (1974).

Defendant's argument centers around the fact that approximately 11 officers were in and about the house and premises at the time the alleged consent was given, and that the officers had absolutely no basis upon which probable cause could be shown to justify the issuance of a search warrant to them. Nevertheless, it is argued the officers clearly intimated that if they were not given permission to search they would get a search warrant to do it.

A consent which is the product of coercion or deceit on the part of the police is invalid. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1967). See also, Anno. 9 A.L.R.3d 858, § 4 (1966). Thus, close judicial scrutiny of an alleged consent to search is necessary. This is particularly true under the circumstances of this case because it is difficult to imagine why an accused who steadfastly denies his guilt, would voluntarily permit officers to conduct a search of his premises if he knows that incriminating evidence will be found. See, Higgins v. United States, 93 U.S.App.D.C. 340, 209 F.2d 819 (1954).

At the pre-trial hearing on the motion to suppress, the trial judge found no effort on behalf of the police officers to intimidate either the defendant or his father and also found that the police advised them they would like to search the house but could not do so without a warrant or their consent. The evidence at the pre-trial hearing shows that defendant, a high school graduate, signed a consent form stating that he had been advised of his right not to allow the search, but nevertheless authorized the named officers to search the house and his vehicle. Defendant's father testified that the detective stated to him, 'We ain't got no search warrant now, but would it be all right with you if we looked around a little?' Defendant's father stated that he responded, as follows: 'I told him, 'yeah, it's all right with me.' I told him to just help his self (sic), it's all right with me.' Mr. Code, the father, then responded in answer to the question of whether he gave the officers permission to look around in the house, 'Yeah, 'cause I didn't know anything was in the house.'

We believe the evidence supports the trial court's finding that defendant and his father voluntarily gave permission for the officers to search the house. Although the house was surrounded by police, this does not ipso facto require a finding of coercion. Defendant's father also testified the officers who came to the door were courteous and in no way abusive. He stated that the police 'were acting nice and everything . . . didn't none of them in no way act rascally, in no way talk big, or nothing like that.' He further stated in regard to the treatment of his son by the officers that, 'as far as I know, they were very nice to him. They didn't dog at him, fuss at him or nothing like that, that I know of. Course, I couldn't see exactly into his room where they all were, but I don't know of any ill treatment that went on at all.' Admittedly, where the presence of many...