McClesky v. State, 35529

• Citation: 245 Ga. 108,263 S.E.2d 146
• Decision Date: 24 January 1980
• Docket Number: No. 35529,35529
• Parties: McCLESKY v. The STATE.
• Court: Georgia Supreme Court

Page 146

263 S.E.2d 146

245 Ga. 108

McCLESKY v. The STATE.

No. 35529.

Supreme Court of Georgia.

Argued Nov. 19, 1979.

Decided Jan. 24, 1980.

John Milton Turner, Jr., Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., H. Allen Moye, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Nicholas G. Dumich, Staff Asst. Atty. Gen., for appellee.

UNDERCOFLER, Presiding Justice.

Warren McClesky appeals his convictions of murder and two armed robberies. He was sentenced to death for murder and life imprisonment for each armed robbery, all sentences to run consecutively.

Summary of Facts

From the evidence presented at trial, the jury was authorized to find the following facts:

On the morning of May 13, 1978, appellant, using his car, picked up Ben Wright, Bernard Dupree and David Burney. All four had planned to rob a jewelry store in Marietta that day. After Ben Wright went into the store to check it out, they decided not to rob it. All four then rode around Marietta looking for another place to rob but couldn't find anything suitable. They drove to Atlanta and decided on the Dixie Furniture Store as a target. Each of the four was armed. Appellant had a .38 caliber Rossi nickel-plated revolver, Ben Wright carried a sawed-off shotgun, and the two others had blue steel pistols. Appellant parked his car up the street from the Furniture Store, entered the store, and "cased" it. After appellant returned to the car, the robbery was planned. Executing the plan, appellant entered the front of the store and the other three came through the rear by the loading dock. Appellant secured the front of the store. The others rounded up the employees in the rear and began to tie them up with tape. All the employees were forced to lie on the floor. The manager was forced at gunpoint to turn over the store receipts, his watch and six dollars. George Malcom, an employee, had a pistol taken from him at gunpoint. Before all the employees were tied up, Officer Frank Schlatt, answering a silent alarm, pulled his patrol car up in front of the building. He entered the front door and proceeded approximately fifteen feet down the center isle where he was shot twice, once in the face and once in the chest. The chest shot glanced off a pocket lighter and lodged in a sofa. That bullet was recovered. The head wound was fatal. The robbers fled. Sometime later, appellant was arrested in Cobb County in connection with another armed robbery. He confessed to the Dixie Furniture Store robbery, but denied the shooting. Ballistics showed that Officer Schlatt had been shot by a .38 caliber Rossi revolver. The weapon was never recovered but it was shown that the appellant had stolen such a revolver in the robbery of a Red Dot grocery store two months earlier. Appellant admitted the shooting to a co-defendant and also to a jail inmate in the cell next to his both of whom testified for the state.

Enumerations of Error

1. In his first enumeration of error, appellant contends the death penalty violates the due process and equal protection provisions of the state and federal constitutions because prosecutorial discretion permits its discriminatory application. Appellant's argument is without merit. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Moore v. State, 240 Ga. 807, 243 S.E.2d 1 (1978), cert. den., 439 U.S. 903, 99 S.Ct. 268, 58 L.Ed.2d 249 (1978).

2. Appellant's second enumeration of error complains that the prosecutor conducted an illegal post-indictment lineup immediately prior to trial without the knowledge, consent, or presence of defense counsel. However, a review of the record does not support this contention. The record shows that four witnesses immediately prior to the call of the case saw the appellant and four other persons sitting in the jury box guarded by deputy sheriffs. Each of these witnesses testified that they recognized the appellant as one of the robbers at the time they saw him seated in the jury box. There is no indication that the witnesses were asked to view the men seated in the jury box and see if they recognized anyone. No one pointed out the appellant as the defendant in the case, rather it is apparent from the witnesses' testimony that each recognized the appellant from having viewed him at the scene of the respective robberies. Therefore, no illegal post-indictment lineup occurred. See Prater v. State, 148 Ga.App. 831, 253 S.E.2d 223 (1979).

Appellant argues further that the four witnesses viewing him in the jury box as he awaited trial along with police identification procedures impermissibly tainted the witnesses' in-court identification of the appellant.

The threshold inquiry is whether the identification procedure was impermissibly suggestive. Only if it was, need the court consider the second question: whether there was a substantial likelihood of irreparable misidentification. Gravitt v. State, 239 Ga. 709, 239 S.E.2d 149 (1977); Heard v. State, 149 Ga.App. 92, 253 S.E.2d 454 (1979).

The chance viewing of the appellant prior to trial as he sat with others was no more suggestive than seeing him in the hall as he and other defendants are being brought in for trial, or seeing him seated at the defense table as each witness comes in to testify. We conclude that the chance viewing of the appellant immediately prior to trial by four of the state's witnesses was not impermissibly suggestive. Also, we find the identifications were not tainted by police identification procedures. Nevertheless, we have inquired into and find the identifications reliable.

Classie Barnwell, an employee of the Dixie Furniture Store testified that the appellant was the man who came in the front door and participated in the robbery. This witness had been exposed to photographic lineups on two occasions and had seen the appellant's picture in the paper. However, she testified that she did not recognize any pictures as being the robbery suspect. There is no evidence that the appellant's picture was in any of the photographic lineups. She testified further that although the newspaper picture looked familiar, it was "vague" and she could not recognize the appellant from it. She was able to identify the appellant in person and was certain of her in-court identification. There is no evidence that the photographic identification procedure used by the police with this witness was impermissibly suggestive. The newspaper picture may have been suggestive. However, the question is whether under the "totality of the circumstances" the witness was irrevocably committed to the desired identification by the identification procedure used. Heyward v. State, 236 Ga. 526, 224 S.E.2d 383 (1976). Here the victim based her in-court identification testimony upon her observation of the appellant for some five to ten minutes during the robbery. Her identification of the appellant had an independent basis other than the viewing of a newspaper photograph that only looked familiar to her. See Burrell v. State, 239 Ga. 792, 239 S.E.2d 11 (1977). In our opinion, her identification testimony was reliable and admissible.

David Ross viewed the appellant in a series of black and white photographs and another series of color photographs. He was able to identify the appellant from the color photographs but not from the black and white. There is no showing that the array of photographs exhibited to this witness was impermissibly suggestive. Heyward v. State, supra. This witness saw but did not recognize the picture of the appellant published in the newspaper. He was also one of four witnesses who saw the appellant in the jury box immediately prior to trial. He testified he recognized the appellant from having seen him as he walked past him immediately prior to the robbery of the Red Dot grocery store. His in-court identification of the appellant had an independent basis other than the photographs and was properly submitted to the jury. See Burrell v. State, supra.

Two other witnesses made in-court identifications of the appellant after identifying him from a photographic lineup. However, each witness testified that the identifications were based on the presence of the appellant at the robbery scene. Burrell v. State, supra. Their testimony was properly submitted to the jury.

We note that other evidence also establishes the reliability of this identification testimony, particularly a co-defendant's testimony and the appellant's own statement. Appellant's related enumerations of error (e. g., the trial court's overruling of appellant's motion for new trial), are without merit.

3. In his third enumeration of error, appellant argues that the trial court erred in overruling his motion to suppress his statement because it was not given freely and voluntarily. We find no error in the trial court's determination that the confession was given freely and voluntarily. Johnson v. State, 233 Ga. 58, 209 S.E.2d 629 (1974); Amadeo v. State, 243 Ga. 627, 255 S.E.2d 718 (1979); Burney v. State, 244 Ga. 33, 257 S.E.2d 543 (1979).

4. Appellant's fourth enumeration of error urges that the trial court erred in allowing evidence of appellant's oral statement admitting the murder made to an inmate in the next cell, because the prosecutor had deliberately withheld such statement in answering a Brady motion.

The appellant confided to a fellow inmate that he had shot the police officer. The inmate's name and address was included in the list of witnesses furnished to defense counsel. He testified for the state and was subjected to a thorough cross examination. Hamby v. State, 243 Ga. 339, 253 S.E.2d 759 (1979). The prosecutor showed the defense counsel his file, but did not furnish this witness's statement. The defendant in a criminal case has no right to inspect the prosecutor's file, but the district attorney upon proper motion may be required to disclose evidence that might be helpful to the defendant. Strong v. State, 232 Ga. 294, 206 S.E.2d 461 (1974) and...