Curtis v. State, 74067
| Decision Date | 20 May 1987 |
| Docket Number | No. 74067,74067 |
| Citation | 357 S.E.2d 849,183 Ga.App. 6 |
| Parties | CURTIS v. The STATE. |
| Court | Georgia Court of Appeals |
Michael G. Schiavone, Savannah, for appellant.
Spencer Lawton, Jr., Dist. Atty., David T. Lock, Asst. Dist. Atty., for appellee.
Appellant was indicted for rape, aggravated sodomy, and burglary. He was tried before a jury and guilty verdicts were returned as to all three crimes. Appellant's motion for new trial was denied and he appeals from the judgments of conviction and sentences entered on the jury's verdicts.
1. Appellant enumerates as error the admission into evidence of his in-court identification by the victim. The contention is that the in-court identification testimony was the product of an impermissibly suggestive pre-trial identification procedure.
The evidence shows that, after the victim had been assaulted in her home, she escaped when her intoxicated assailant fell asleep. The victim telephoned the police from a neighbor's house. When the police arrived, they discovered appellant in the living room of the victim's home. He was nude, intoxicated and asleep. He was arrested at that time. Several days later, the victim told the officers that she thought that she knew the man who had been arrested. The victim was then shown a photograph of appellant and, from the photograph, she identified him as someone who had previously lived in the house across the street from hers.
On this evidence, the only pre-trial identification of appellant took place in the victim's home when, acting on the victim's outcry, police officers arrested appellant almost immediately after the commission of the crimes. This identification did not occur as the result of any identification procedure conducted by the State. Gilstrap v. State, 250 Ga. 814, 816 (1), 301 S.E.2d 277 (1983).
Notwithstanding the State's participation in the victim's subsequent viewing of a photograph of appellant, this was not an "identification procedure." The victim did not use the photograph to identify appellant as the perpetrator of the crimes. The victim had already identified appellant as her assailant and he had already been incarcerated as the result of her identification of him. She merely used the photograph to determine that the man whom she had previously identified as her assailant was, in fact, her former neighbor. It is the victim's initial identification of appellant as the perpetrator of the offenses, not the victim's subsequent identification of her assailant as a former neighbor, that is the crucial inquiry.
The only pre-trial identification of appellant as the victim's assailant stems from the circumstances of his arrest in the victim's home immediately after commission of the crimes, and not from any identification procedure conducted by the State. Since there was no pre-trial identification procedure conducted by the State which led to appellant's arrest and prosecution, the trial court did not err in allowing the victim to make her in-court identification of appellant.
2. Pursuant to OCGA § 17-7-211, appellant filed a pre-trial motion for discovery of any written scientific reports in the possession of the prosecution. The denial of appellant's motion for mistrial, predicated upon an alleged violation of OCGA § 17-7-211, is enumerated as...
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