McGhee v. State, 41090

• Citation: 319 S.E.2d 836,253 Ga. 278
• Decision Date: 06 September 1984
• Docket Number: No. 41090,41090
• Parties: McGHEE v. The STATE.
• Court: Supreme Court of Georgia

Page 836

319 S.E.2d 836

253 Ga. 278

McGHEE v. The STATE.

No. 41090.

Supreme Court of Georgia.

Sept. 6, 1984.

Robert Strickland, Jr., Atlanta, for Michael McGhee.

Lewis R. Slaton, Dist. Atty., Margaret V. Lines, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Eddie Snelling, Jr., Atlanta, for the State.

CLARKE, Justice.

Michael McGhee was convicted of murder and sentenced to life imprisonment. He appeals. We affirm.

On the day of the murder Carl Phillips asked McGhee, a neighbor and high school classmate, to go with him to look for two persons who had supposedly broken into his car. They encountered Victor Wilkins, the eighteen-year-old victim, and his brother Preston, who were walking to their grandmother's house. The victim was acquainted with McGhee and Phillips, and the brothers entered the car willingly when it was suggested that they go to find some marijuana. The victim sat behind the driver, Phillips, and Preston sat behind McGhee. After driving for some time, they reached the vicinity of Union City, Georgia. Phillips stopped and questioned the victim as to the vandalization of the car. The victim denied that he was involved. At this point Phillips pulled out a .32 caliber revolver and shot both Preston and the victim. Preston pretended to be dead. Because he kept his eyes closed, his testimony as to what happened next is based on what he heard. Preston heard his brother say "Michael [appellant] I'm going to tell," to which McGhee replied, "No you ain't." The victim tried to escape through the rear passenger window of the car, which was now moving. Preston heard the driver tell the passenger to shoot him again. Preston then heard three or four more shots. The medical examiner testified at trial that the victim had been wounded by shots from both a .22 caliber revolver and a .32 caliber revolver. The victim was observed by another witness to be clinging to the roof of the moving car. This witness testified at trial that after he had been dragged one or two blocks someone on the passenger side reached out and unhooked his foot, causing him to fall. The car sped away and, although help was summoned, the victim died on the way to the hospital.

Preston, who was still pretending to be dead, was dragged from the car by Phillips and McGhee and rolled down a hill into a park. Police shortly afterwards stopped Phillips' car and found a .32 caliber revolver and a .22 caliber revolver and ammunition under the front passenger seat. Preston, who had sought assistance in the park, was taken by the police to the car where he identified Phillips and McGhee.

McGhee denied firing either weapon. He later stated that he had fired the .22 caliber revolver earlier in the day. When interviewed at the hospital Preston said that the passenger shot his brother. The Union City Chief of Detectives testified at trial that in his interview with Carl Phillips, Phillips said that McGhee had fired the gun. Handwipings from both Phillips and McGhee revealed similar amounts of gunshot residue on the hands of each.

1. Appellant enumerates as error admission into evidence of the weapons and ammunition found in the car. The warrantless search of the vehicle was conducted after a lawful stop of the car during which police observed bloodstains on the rear seat. Acting on a description of the vehicle given by witnesses who saw the victim fall from the car, police identified and stopped Phillips' car. After observing blood on the car police conducted a limited search of the passenger compartment and found the guns and ammunition under the passenger side of the front seat. McGhee complains that these weapons and ammunition should have been suppressed because of the warrantless search.

Appellant failed to object to this evidence at trial and is therefore prohibited from raising an objection on appeal. Sheffield v. State, 235 Ga. 507, 220 S.E.2d 265 (1975). However, even if objection had been made, we find that when the police received a call to be on the lookout for a car which had been involved in a shooting and the car in question roughly fit the description given for the lookout, this provided the basis for an articulable suspicion justifying the stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Brisbane v. State, 233 Ga. 339, 211 S.E.2d 294 (1974). Once police observed blood on the car they were justified in placing Phillips and McGhee in patrol cars and conducting a search of the passenger compartment which disclosed the weapons. The search was justified as a search incident to an arrest and as a search under the automobile exception to the Fourth Amendment. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Another exigent circumstance was the urgency of either confirming that this was the car involved in the murder or ruling out this car so that the search could continue. Furthermore, a mere passenger who asserts an interest in neither the car nor the property found in it has no standing to object to the search of the automobile. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

2. Appellant next contends that he was improperly identified by Preston Wilkins in that Wilkins was improperly brought to the arrest scene and in that in essence he (McGhee) was placed in a line-up without benefit of counsel and without being advised of his rights. Since the "line-up" at the arrest scene was held prior to the initiation of adversary judicial proceedings, appellant was not entitled to counsel. Jones v. State, 243 Ga. 820, 256 S.E.2d 907 (1979). Preston's being taken to the arrest scene to identify the two suspects was not improper as unduly suggestive. The...