Davis v. State, 61825

Decision Date15 May 1981
Docket NumberNo. 61825,61825
Citation281 S.E.2d 305,158 Ga.App. 549
PartiesDAVIS v. The STATE.
CourtGeorgia Court of Appeals

Thomas E. Maddox, Jr., Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Margaret V. Lines, Joseph J. Drolet, Dean Davis, Asst. Dist. Attys., for appellee.

DEEN, Presiding Judge.

Robert Davis, Jr. brings this appeal from his conviction of two counts of rape, three counts of burglary, two counts of armed robbery, one count of aggravated assault with intent to rape, and one count of aggravated assault.

1. The defendant contends that under the ABA Standards on Joinder of Offenses, the three offenses (each containing three counts) should not have been joined solely because they were of a similar character and that the trial court erred in denying his motion to sever. The indictment charged him with entering the apartments of three different female victims over a five and one-half month period. All three of the victims were threatened at knifepoint, two were robbed, one was raped, one was raped and sodomized, and the third escaped from her attacker by hitting him over the head with a whiskey bottle before he could rape her. All of the attacks were on women who lived alone in an apartment building located near I-285 and entry was obtained through a window or sliding glass door during the early hours of the morning. (The defendant is alleged to be the "Spiderman" rapist who assaulted approximately sixteen women in the same fashion in the metropolitan Atlanta area over a period of approximately one and one-half years.)

In Dingler v. State, 233 Ga. 462, 463, 211 S.E.2d 752 (1975), the Supreme Court adopted the ABA Standards on Joinder of Offenses which provides: " 'Two or more offenses may be joined in one charge, with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both: (a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.' ABA Standards (Relating to the Administration of Criminal Justice) p. 289 (1974). On severance, the standards provide: '(a) Whenever two or more offenses have been joined for trial solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses. (b) The court, on application of the prosecuting attorney, or on application of the defendant other than under subsection (a), should grant a severance of offenses whenever: (i) if before trial, it is deemed appropriate to promote a fair determination of the defendant's guilt or innocence of each offense; or (ii) if during trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant's guilt or innocence of each offense. The court should consider whether in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.' ABA Standards, supra, p. 291. The right of severance where the offenses are joined solely on the ground that they are of the same or similar character is 'because of the great risk of prejudice from a joint disposition of unrelated charges.' ABA Standards, supra, p. 288."

In the present case, the crimes charged were so similar as to evidence a common plan or scheme and revealed an identical modus operandi. Booker v. State, 231 Ga. 598, 203 S.E.2d 194 (1974), relied upon by Davis is distinguished because the evidence in that case showed that the evidence of one crime would not be admissible in the trial of the other. Under the holding in Johnson v. State, 246 Ga. 654, 272 S.E.2d 321 (1980), all of the offenses would have been admissible at the trial of the other. In Wigley v. State, 140 Ga.App. 145, 230 S.E.2d 108 (1976), this court held that under the holding in Dingler, supra, the trial court had no discretion but to grant the motion when the three offenses were joined solely because they are of the same or similar character. In the present case, we find that the offenses were not joined simply because they were similar. " 'This court should not substitute its discretion for that of the trial court where no abuse of that discretion is shown ... (Cits).' " Stephens v. State, 144 Ga.App. 779, 780, 242 S.E.2d 371 (1978). In the absence of a transcript of the hearing on the motion to sever, this court must presume that after hearing the evidence the trial court correctly exercised its discretion in denying the motion. Nalley v. State, 147 Ga.App. 634, 249 S.E.2d 685 (1978). We find no abuse in the trial court's exercise of its discretion.

2. The trial court did not err in denying defendant's motion to quash the indictment which alleged a total of nine offenses against three separate individuals. Wingfield v. State, 231 Ga. 92, 200 S.E.2d 708 (1973).

3. The trial court did not err in denying defendant's motion for the appointment of a psychiatrist. In the motion, counsel claimed that he had found a forensic psychiatrist who could form a psychological profile of the perpetrator of a series of rapes in the metropolitan Atlanta area and, after interviewing the defendant, he might be able to give an opinion as to whether or not he fit the psychological profile. In the absence of a special plea of insanity, the court is under no duty to grant a psychiatric examination. Jones v. State, 246 Ga. 109, 269 S.E.2d 6 (1980). Even if Davis were entitled to such an evaluation, as stated in Division 1 above, in the absence of a transcript of the hearing on the motion we must presume that the trial court correctly exercised its discretion.

4. There is no merit to defendant's argument that the trial court erred in denying his motion to suppress. The written motion only contested the admissibility of a palm print found at the residence of one of the victims. At the hearing on the motion, he also tried to have the court exclude evidence of blood, hair and saliva samples taken from him pursuant to the execution of a search warrant. Any attempt to orally amend the motion at the hearing to include the other samples is procedurally defective and unacceptable. Rick v. State, 152 Ga.App. 519, 263 S.E.2d 213 (1979). Even if his motion were valid, this enumeration is without merit. At the hearing on the motion, counsel conceded that if the underlying arrest was lawful, there would be probable cause for the issuance of the warrant. The evidence shows that appellant was apprehended after police officers investigated a rape-robbery and a second robbery was reported at a nearby apartment building. Near the scene of the second robbery, a woman's pocketbook was found abandoned and contained Davis' temporary driver's license. A check of the license revealed that Davis had been convicted of burglary and rape and was out on parole. The detective compiled a photographic line-up and showed it to six recent rape-robbery victims. Three of them identified the defendant as their assailant. The detective also checked defendant's former place of employment and learned that he had an unusual speaking voice similar to that described by the victims. The evidence established probable cause for Davis' arrest.

5. The trial court did not err in admitting evidence of voice identification which was made by the witnesses after viewing a videotape line-up in which the participants read sentences composed by the police officers.

The three victims gave similar descriptions of their assailant's voice to the investigating officers. None of the victims were present during the videotaping of the voice exemplar and no suggestion was made to the victims as to which voice to choose. All three victims and two other witnesses stated that they recognized the voice on the tape as that of their attacker and one woman testified that she broke down crying when she heard the voice. The other victims of the rapist testified that hearing one woman cry did not affect the identification because they had already identified the voice or were only vaguely aware of the outburst. Under the test set forth in Payne v. State, 233 Ga. 294, 210 S.E.2d 775 (1974), we find that the pre-indictment investigative videotape line-up was not impermissively suggestive and find no error in the trial court's ruling.

Requiring a suspect to give a voice exemplar for identification purposes does not violate his privilege against self-incrimination accorded by the United States or Georgia Constitutions or the statutes of this state. Tate v. State, 153 Ga.App. 508, 265 S.E.2d 818 (1980). The defendant was informed that he would appear in a line-up at 1:00 p. m. the following day and was asked if he wished to have counsel present. He said that he did not. At the line-up, he decided he wanted to have counsel present. This request was denied and he did not refuse to give the voice exemplar. The defendant did not have the right to have counsel present at a line-up which was held prior to his indictment and the initiation of any adversary judicial criminal proceedings. Jones v. State, 243 Ga. 820, 256 S.E.2d 907 (1979); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

6. It was not error for the trial court to admit evidence of visual identification of Davis at the pre-indictment line-up. (This was the live line-up which was videotaped.)

The denial of appellant's right to counsel is discussed in Division 5 of this opinion, and his presence was not due to an illegal arrest as discussed in Division 4. As he did not raise the issue of the failure to hold a prompt preliminary hearing in the court below, that issue cannot be raised for the first time on appeal. Williams v. State, 144 Ga.App. 42, 240 S.E.2d 311 (1977). The line-up was not impermissively suggestive. It consisted of six black males similar in appearance to the appellant...

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  • Olevik v. State
    • United States
    • Supreme Court of Georgia
    • October 16, 2017
    ...defendant's right against self-incrimination under the Georgia Constitution, the Court of Appeals's earlier decision in Davis v. State, 158 Ga. App. 549, 552 (5), 281 S.E.2d 305 (1981), that compelled voice exemplars do not violate that right seems something of an outlier. But the continued......
  • Glass v. the State.
    • United States
    • Supreme Court of Georgia
    • July 11, 2011
    ...that after hearing the evidence the trial court correctly exercised its discretion in denying the motion. [Cit.]” Davis v. State, 158 Ga.App. 549, 550(1), 281 S.E.2d 305 (1981). 4. The trial court gave a cautionary instruction to the courtroom audience and witnesses with respect to alleged ......
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    • March 5, 1984
    ...connection Cook v. State, 157 Ga.App. 23(2), 276 S.E.2d 84; Bissell v. State, 157 Ga.App. 711(2), 278 S.E.2d 415; Davis v. State, 158 Ga.App. 549, 553(7), 281 S.E.2d 305; Jones v. State, 159 Ga.App. 634(1), 635-637(1), 284 S.E.2d 651; Brown v. State, 250 Ga. 66, 73(5), 295 S.E.2d 727. Defen......
  • Ridgeway v. State, 69854
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    • United States Court of Appeals (Georgia)
    • April 30, 1985
    ...character." Thus, the decision not to sever the offenses for trial was within the trial court's discretion. See Davis v. State, 158 Ga.App. 549 (1), 281 S.E.2d 305 (1981). The trial court did not abuse its discretion in denying appellant's motion to sever. Jones v. State, 168 Ga.App. 652, 3......
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