Manning v. State, A01A0660.
| Decision Date | 25 June 2001 |
| Docket Number | No. A01A0660.,A01A0660. |
| Citation | 550 S.E.2d 762,250 Ga. App. 187 |
| Parties | MANNING v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Marlando Manning, pro se.
J. Tom Morgan, District Atty., Barbara B. Conroy, John H. Petrey, Asst. Dist. Attys., for appellee. BLACKBURN, Chief Judge.
Following a jury trial, Marlando S. Manning appeals his convictions on a multiple of criminal charges, including two counts of rape, aggravated sodomy, kidnapping with bodily injury, false imprisonment, armed robbery, burglary, and using a false name. Manning was charged with raping two women in the same apartment complex where he lived with his grandparents in separate incidents occurring about five weeks apart. We affirm.
Investigators linked Manning to the crimes through a pawn shop receipt for a camera stolen during the second sexual assault. A bank surveillance tape captured Manning using one victim's automatic teller machine card about an hour after the rape. Both victims identified Manning as their assailant from a photographic array.
After his motion for new trial was denied, Manning sought to discharge his appointed appellate counsel. Following a hearing, the trial court refused to dismiss appellate counsel, finding that Manning did not present sufficient reasons for doing so. In this pro se appeal, Manning contends that the trial court erred by allowing the in-court identification of him by the two victims; by admitting into evidence certain documents seized from his residence; and by allowing trial counsel to make a statement in place instead of removing herself. Manning also claims that his trial counsel rendered ineffective assistance and that the evidence was insufficient to support the convictions because the evidence presented did not connect him to the charged conduct.
On appeal, the evidence must be viewed in a light most favorable to the verdict. Pollard v. State.1 So construed, the evidence shows that early one morning, D.M. was stepping out of the shower when she saw a man rushing toward her with a knife. She screamed in fear. Thinking more clearly, D.M. then repeatedly reassured her assailant that she had not seen his face even though she had. After placing a pillowcase over her head, binding her hands and feet, and yanking an electrical cord tight around her neck, the perpetrator raped D.M. at knifepoint. When he demanded the pin number for her ATM card, she provided an incorrect number. Later, in response to police questioning, D.M. initially told investigators that she did not get a good look at the rapist because she feared he would return and kill her if she identified him, as he had threatened to do. D.M. was able to recall details of her attacker's appearance including his race, height, slender build, high cheekbones, discolored lips, and "real slim face." D.M. expressed certainty when selecting Manning from an array of photographs. At trial, she testified that she had no doubt that Manning was her attacker,
The second assault occurred in the early morning as well. As C.M. was locking her door to leave home, a black male wearing gloves suddenly appeared and shoved her back inside her apartment. Placing a knife against her neck, her assailant warned her to "stop screaming or I'll kill you." Covering C. M.'s head with two shirts, he severed a telephone cord and used it to tie her hands. After rummaging through her purse, he demanded her pin number and threatened to kill her if she lied about her number. Holding a knife to her throat, he raped her twice. After sodomizing her, he dragged her to a bathtub and forced her into it. When C.M. wriggled loose and thought he had left, she saw him standing in the doorway of the bathroom. While retying her, he reiterated his threats to kill her. He then left.
About five weeks after the rape, C.M. viewed the same photographic lineup as D.M. After an investigator provided preliminary instructions, C.M. tentatively identified Manning as her attacker. She testified that she initially saw the rapist for only a second or two because her eyes were covered for most of the incident. She described his clothing, slim build, and facial features, noting a "very definite bone structure around his eyes." At trial, she felt Manning looked "extremely similar" to her attacker.
An ATM card belonging to C.M. was used at four different teller machines on the morning of the attack. C.M. thought the man in the photographs taken by ATM surveillance cameras looked like the same man who raped her. The serial number on the pawn-shop receipt for a Minolta camera matched the number recorded by C.M. for such camera on an insurance policy.
1. Manning contends that the trial court erred by allowing in-court identifications of him by both victims because such identifications were tainted by their earlier identifications of him in an unduly suggestive photographic lineup.
A conviction based on eyewitness identification at trial following a questionable pretrial identification will be set aside only if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification. Miller v. State.2 When reviewing a ruling on a motion to suppress, this Court must construe the evidence most favorably toward upholding the trial court's findings and judgment, unless they are clearly erroneous. Karim v. State.3
Here, the trial court conducted a pretrial hearing on Manning's motion to suppress the victims' identifications of him. During the hearing, Detective Leonard Dreyer explained that before showing the photographic array to D.M., he read a comprehensive list of admonitions to her. Dreyer advised her that the lineup might not contain her assailant's photo and that the guilty person might not have been caught. He instructed her that she did not have to select anyone and reminded her that hairstyles and facial hair could change. He also told her that the photographs might not depict the true complexion of a person. After carefully studying the pictures for three to five minutes, D.M. positively identified Manning as her assailant. Another investigator, Detective Michael Bailey, testified that he used the same array with the other victim. Before showing the photographs to C.M., Bailey likewise provided precautionary instructions. Then, after studying the pictures carefully, the victim eliminated everyone else and tentatively selected Manning's photograph.
After examining the array and noting the similarities and differences among the six men depicted, the trial court found the array to be a "fairly balanced photographic lineup." Although Manning claims that the heights of the men in the photographs varied, if this is so, it is not apparent from the photographs, which do not contain height bars and show the men only from the chest upward. The persons appearing in the photographs look similar, and no one person stands out. Even assuming arguendo that there are imperfections in the composition of this photographic lineup, they do not create the kind of suggestiveness that would inexorably lead the viewer toward the conclusion that Manning was the perpetrator. See Karim, supra at 286, 535 S.E.2d 296. Since the lineup was not impermissibly suggestive and was unlikely to have resulted in irreparable misidentification, its admission over objection was not improper. Anderson v. State.4
2. Manning asserts that the trial court erred by admitting into evidence a notice from his bank sent to him at his grandparents' address because the court already had allowed the admission of another bank statement of his, seized from his grandparents' apartment. Manning claims that this evidence was irrelevant and duplicative. We disagree.
A trial judge may exercise discretion to exclude relevant evidence when its probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice. Webster v. Boyett.5 But here, the evidence was used to establish that Manning lived with his grandparents in the same apartment complex where the attacks took place. The evidence was relevant, and the fact that it pointed toward Manning's guilt did not preclude its introduction. See Hudson v. State.6
3. Manning contends that the trial court abused its discretion in permitting his counsel to present a stipulated statement to the jury instead of removing herself from his case. Defense counsel's statement arose in the following context. Aida Benitez, Manning's girlfriend, testified that on July 23, the same day as the attack on C. M., Manning had some cameras and other items that were not his. After she accompanied Manning to her brother's home, Ramon Benitez helped Manning pawn the cameras by allowing his name and identification to be used at a pawn-shop. The pawned cameras were later identified by C.M. as having been stolen from her during the attack. When Ramon Benitez heard that police wanted to question him about the pawned cameras, he asked Manning, "what's going on?" Benitez testified that Manning would not tell him anything, and "panicked," leaving that same day on a bus for New York. After being arrested for theft by receiving, Ramon Benitez implicated Manning and told police where Manning lived. Investigators obtained a search warrant for Manning's apartment and, in his bedroom, discovered two bank statements and a library card using that address.
On cross-examination, when Aida Benitez was asked whether she had lied to protect her brother in her statement made to police, she denied having done so. Prior to the close of evidence, Manning's counsel announced that a stipulation had been reached with the State to allow the attorney to state that Aida Benitez had telephoned her and had admitted lying in a statement to police in order to protect her brother....
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