Hughes v. State
| Citation | 239 Ga. 393,236 S.E.2d 829 |
| Decision Date | 05 July 1977 |
| Docket Number | No. 32078,32078 |
| Parties | James HUGHES v. The STATE. |
| Court | Georgia Supreme Court |
Harrison, Jolles, Miller & Bush, Charles F. Miller, Jr., Augusta, for appellant.
Richard E. Allen, Dist. Atty., Augusta, Arthur K. Bolton, Atty. Gen., Kirby G. Atkinson, Asst. Atty. Gen., Atlanta, for appellee.
The appellant, James Hughes, was indicted by a Burke County grand jury on November 8, 1976, for the offenses of armed robbery, aggravated assault and rape. In a trial by jury on November 30, 1976, and December 1, 1976, he was found guilty on all charges and sentenced to life imprisonment for armed robbery; ten years imprisonment for aggravated assault; and death for the offense of rape. The jury found as a statutory aggravating circumstance that the offense of rape was committed during the commission of another capital felony, armed robbery.
His case is before this court on appeal and for mandatory review of the death penalty imposed.
The state presented evidence from which the jury was entitled to find the following:
On the morning of July 15, 1976, the victim, a legal secretary, was performing her duties in a Waynesboro law office. Between 10 and 11 a.m. the appellant entered the office and asked to speak with the attorney. After being informed that the attorney was in the hospital and would not return until Monday, the appellant left the office. At approximately 1 p.m. a deputy sheriff who knew the appellant met him in the vicinity of the attorney's office.
The victim returned to the law office from lunch at approximately 1:30 p.m. Between 1:45 and 2 p.m. the appellant returned to the office and indicated that he wished to make an appointment. As the victim turned to go to her desk to enter the appointment, she was grabbed by the appellant from behind and he placed a knife to her throat. She tried to fight him and was cut on the arm by the knife, and She was taken into the library and forced to lock one of the doors while the appellant locked the second library door.
With the knife at her throat, he forced the victim over by a bookcase, again threatened her and ordered her to remove her slacks. When she refused, the appellant pushed the victim to the floor, pulled down her slacks and underwear and raped the victim.
The appellant then permitted the victim to get up and pull her slacks back up. He again called her a name and told her that "if I screamed or cried again that he would kill me." He then tied the victim's hands behind her back with a roll of tape and gagged her by wrapping tape around her head and across her mouth.
Appellant then asked the victim if the pocketbook on the desk belonged to her and she nodded. He removed $102, determined that was all the money she had, and put it in his pocket. At that time there was a loud noise from the shop next door. The appellant told the victim that if she told anybody he would come back and kill her. He then ran out the door.
The victim ran to the shop next door where she was described as screaming with her hands tied and with tape bound around her head and across her face. As she was untied she continued to scream and cry that she had been raped and that he was going to kill her. She was emotionally upset. Her blouse was partly untucked, her hair was in her face, and several spots of blood were seen on her left elbow.
Medical examination of the victim disclosed abrasions, contusions and lacerations of the lower right eyelid and left forearm. There were also lacerations of the posterior of the vagina. The victim was emotionally upset and examination revealed the presence of mobile sperm.
Between 2 and 3 p.m., July 15, 1976, the appellant hired a friend to drive him to the Wrens, Georgia, bus station. Upon their arrival, when appellant determined that the bus to Fort Lauderdale, Florida, was not scheduled for several hours he paid his friend to drive him to Louisville, Georgia, where he boarded a bus.
On November 9, 1976, the appellant was transported from Miami, Florida, back to Burke County, Georgia.
The appellant testified in his own behalf that he in fact went to the attorney's office on the morning of the offense. He denied that he returned to the office in the afternoon and attacked the victim. Instead, he testified that he visited his sister and a friend and returned downtown to a cafe where he overheard conversations regarding the incident and the fact that he had been accused. He testified that he panicked and fled the city.
1. In his first enumeration of error the appellant avers that the evidence of identity was insufficient to establish beyond a reasonable doubt that the accused was in fact the individual who allegedly committed the offense.
At the trial, the victim positively identified the appellant as the individual who attacked her. At a pretrial lineup she went through the line four times. The first and third times she identified someone other than the appellant. The second and fourth times she identified the appellant. The third time she stated she had erred and marked the wrong one but the appellant was there and she desired to view them again and picked out the appellant correctly the fourth time. The appellant testified that the sheriff prompted the victim in the identification the second and fourth times.
Whether the conduct of a lineup was so unduly prejudicial as fatally to taint an in-court identification must be determined on the totality of the surrounding circumstances. Coleman v. Alabama, 399 U.S. 1, 4, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1969). The in-court identification can not stem from an identification procedure at the lineup "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Coleman v. Alabama, supra, p. 5, 90 S.Ct. p. 2001; Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). See also Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
In accord with these guidelines this court has held that all relevant factors must be considered in determining whether a witness' in-court identification is tainted by the pretrial confrontation. Sherwin v. State, 234 Ga. 592, 216 S.E.2d 810 (1975). In Puckett v. State, 233 Ga. 449, 451, 211 S.E.2d 740, 742 (1975), we adopted the assessment of the law by the Court of Appeals in Moye v. State, 122 Ga.App. 14, 17, 176 S.E.2d 180 (1970), that "(t)he test is whether the identification confrontation staged by the law enforcement authorities, judged by the 'totality of the circumstances surrounding it,' is 'so unnecessarily suggestive and conducive to irreparable mistaken identification' as to constitute a denial of due process of law."
When the facts of this case are put to this test, we believe that the victim's having seen the appellant twice on the day of the offense, one meeting the appellant admits, and the appellant being seen by the deputy sheriff near the victim's place of employment near the time of the offense, and the circumstances of her pretrial identification of the appellant coupled with her positive identification in court, the pretrial lineup was not "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to constitute a denial of due process of law.
The jury was instructed on both alibi and the credibility of witnesses and by their...
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