Jenkins v. State, 66557

• Decision Date: 09 September 1983
• Docket Number: No. 66557,66557
• Citation: 167 Ga.App. 840,308 S.E.2d 14
• Parties: JENKINS v. The STATE.
• Court: Georgia Court of Appeals

Page 14

308 S.E.2d 14

167 Ga.App. 840

JENKINS v. The STATE.

No. 66557.

Court of Appeals of Georgia.

Sept. 9, 1983.

Susan E. Teaster, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Richard Hicks, Wallace J. Speed, Asst. Dist. Attys., for appellee.

McMURRAY, Presiding Judge.

Defendant brings this appeal from his conviction of rape, aggravated sodomy, armed robbery and possession of a firearm by a convicted felon (all offenses occurring on April 27, 1982). Held:

1. In his first enumeration of error defendant contends that the trial court erred when it allowed evidence of an independent offense to be introduced. Defendant contends that since his attorney was not present at the post-indictment lineup in which the victim of a similar transaction (rape) occurring on April 14, 1982, identified his voice, the evidence should not have been admitted. Defendant's contention is without merit.

It is generally accepted that a defendant should be represented by counsel at a post-indictment lineup. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. However, lack of representation at the lineup alone, is not grounds for a new trial, since the right to counsel can be waived. Martin v. State, 132 Ga.App 658(2), 209 S.E.2d 103. Here, defendant's attorney was notified of the time and place of the lineup and chose not to attend. Counsel for defendant strenuously argues that he should have been notified that the voice identification was to be performed as part of the lineup. However, the law only requires that notice of the impending lineup be given. United States v. Wade, 388 U.S. 218, 237, 87 S.Ct. 1926, 1937, supra. Further, the investigator who conducted the lineup stated that it is not unusual to have persons in a lineup speak or say something. Counsel for defendant made a conscious decision not to attend the lineup. He may not now complain.

A separate question arises as to whether appointed counsel can waive the accused's constitutional right to counsel at a post-indictment lineup. However, here, this question need not be addressed because even if counsel had been present, defendant would not have had a right to refuse to speak. "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." Davis v. State, 158 Ga.App. 549, 552(5), 281 S.E.2d 305. Also, there is no evidence that the lineup (which included both a visual view and a voice identification) was conducted in an impermissibly suggestive manner.

The investigator who conducted the lineup testified that people with similar complexions, weight, height and hair and of the same gender were selected. He further testified that he tried to get an array of people whose voices were similar. He stated that he listened to each of the lineup participants talking before he put them in the lineup and that their voices were very similar. He noted nothing that would lead him to believe that there was anything unique about defendant's voice as opposed to any other of the other six males in the lineup. Looking at the totality of the circumstances, we find that the testimony of the victim of the similar transaction (rape) occurring on April 14, 1982, was properly admitted. As to a portion of the cases involving admissibility of evidence of similar transactions, see Atkins v. State, 236 Ga. 624, 625, 225 S.E.2d 7; Burnett v. State, 137 Ga.App. 183, 184(1), 223 S.E.2d 232; Echols v. State, 149 Ga.App. 620, 627(5), 255 S.E.2d 92; Williams v. State, 156 Ga.App. 17, 18(2), 274 S.E.2d 71; Cook v. State, 157 Ga.App. 23(2), 276 S.E.2d 84; Neal v. State, 159 Ga.App. 450(1), 283 S.E.2d 671; Jones v. State, 159 Ga.App. 634(1), 284 S.E.2d 651; Beldonza v. State, 160 Ga.App. 647, 648(1), 288 S.E.2d 37; Grant v. State, 160 Ga.App. 837, 838(2), 287 S.E.2d 681.

Defendant further contends that the similar transaction (rape) evidence should have been excluded because it was opinion evidence for which there was no basis given for that victim's conclusion that defendant's voice was the voice of the man who raped her. This contention is also rejected.

Here, this witness had the opportunity to hear the voice of the perpetrator. She testified that the perpetrator was in her apartment for a good twenty minutes and that she heard his voice on more than one occasion that evening. She testified that she told the policeman that the man who raped her sounded like he either had something in his mouth or sounded like he had a slur in his voice. She further stated that she recognized the voice of the defendant in the lineup as being the man who raped her and that there was no doubt in her mind about the identification of his voice. The investigator who conducted the lineup testified that when the defendant began to read, tears began streaming down this witness' cheeks. He also testified that she did not seem hesitant in the least when she selected the defendant as the man who raped her.

The defendant cites the case of Henderson v. State, 209 Ga. 238, 71 S.E.2d 628, in support of his contention that this witness' identification of the defendant by his voice should have been excluded. A careful analysis of the facts of the case cited by defendant discloses that the Supreme Court rejected the testimony as failing to measure up to the rule required by law in a case dependent entirely upon circumstantial evidence. The Supreme Court held as a matter of law that the evidence was not sufficient to sustain the identification of the accused as the perpetrator of the crime involved. This court in Williams v. State, 163 Ga.App. 866, 869, 295 S.E.2d 361 analyzed the above holding as a holding by the Supreme Court that the evidence was "inherently improbable and unbelievable." In the case sub judice, the evidence is neither inherently improbable nor unbelievable. As such, we will not weigh the evidence but will adhere to the rule of identification stated by the Supreme Court in Wimberly v. State, 233 Ga. 386, 387(3), 211 S.E.2d 281, to wit: " 'Identity is a question for the trior of fact, and where a witness identifies a defendant (whether the identification be based on the defendant's eyes, clothes, hairline or some intangible factor not capable of description), the credibility of the witness making such identification is not to be decided by this court.' " Under the evidence presented to the jury in this case, the jury certainly was warranted in concluding that the voice of the perpetrator on the night of the similar transaction (rape) was identified by a competent witness upon credible testimony as being that of the defendant. See Reese v. State, 145 Ga.App. 453, 456(2), 243 S.E.2d 650; Taylor v. State, 75 Ga.App. 205, 42 S.E.2d 926.

Furthermore, the testimony of this witness was allowed "for the sole purpose of showing plan, scheme, pattern, bent of mind and identity, if any, to the extent that it bears upon the crimes charged in the indictment." Defendant admitted to having intercourse with the victim in the April 27, 1982, incident in the case sub judice, but claimed it was consensual. The transcript reflects the victim in the case sub judice testified that the perpetrator of the crimes...