Newman v. State
| Decision Date | 07 September 1976 |
| Docket Number | 31057,Nos. 31056,s. 31056 |
| Citation | 228 S.E.2d 790,237 Ga. 376 |
| Parties | Gerald Lee NEWMAN v. The STATE. Anthony HINTON v. The STATE. |
| Court | Georgia Supreme Court |
Neeson, Freeman & Mobley, James H. Mobley, Jr., Atlanta, for appellant in No. 31056.
Stephen M. Friedberg, Atlanta, for appellant in No. 31057.
Lewis R. Slaton, Dist. Atty., Carole E. Wall, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Asst. Atty. Gen., Atlanta, for appellee.
Hinton and Newman appeal separately from their convictions of rape and sentence of eight years' imprisonment following a joint trial in November, 1974. The appeals raise, among others, issues concerning interrogation of deaf mutes; a warrantless search of an impounded automobile; and an oral 'list' of witnesses claimed to satisfy the defendants' right under Code Ann. § 27-1403 to a list of the state's witnesses against them.
The victim was seated in an automobile outside an Atlanta bar at approximately 1:00 A.M. on September 17, 1974, with her boyfriend who had passed out drunk, when two black males appeared and dragged her out of the automobile. Her male companion could not be roused by her screams nor by her pulling at him sufficiently to rip buttons off his shirt. The two assailants struck her on the head and forced her into their automobile, taking her some distance away where each raped her repeatedly over a period of about three hours, following which one forced her to commit an act of oral sodomy. They then returned her to the vicinity of the bar. She reported to the bar owner and to her boyfriend that she had been raped by two men she thought were deaf and dumb. She was taken to Grady Hospital for examination and treatment, and was interviewed there by detectives who testified at trial to her injuries and near hysteria. The victim told officers that the automobile in which she had been abducted was an older four door model, perhaps an early Plymouth, either green and white or orange and white, with a back seat lined with a distinctive sort of flowered paper.
Some four nights later the victim was again at the same bar and saw the two appellants enter, whereupon she recognized them as the rapists and telephoned police who arrived and arrested them. Both appellants are black deaf mutes. On the way to the station, the victim informed officers that an automobile she saw parked near the club appeared to be the one in which she had been abducted. This automobile was green and white, had four doors, and had distinctive flowered upholstery covering the back seat. It was dark at this time; the car was impounded, and no search was then made. The next morning Detective Rios, who had been told that the arresting officers thought they had seen blood on the outside of the door of the automobile, proceeded without a warrant to the impoundment lot where she saw what she thought was blood outside the left door. She opened the door and searched inside the automobile, finding what looked like more blood on the inside of the right rear door. She took scrapings of both these stains, and the scrapings were analyzed and determined to be human blood type A. The victim's blood is type A. All this information concerning the scrapings, their analysis, and the victim's blood type was introduced at trial.
Police officers interrogated appellants following their arrests, but failed to comply with all the provisions of Code Ann. § 99-4002(c) regarding the interrogation of deaf persons. The trial court ordered the results of the interrogation suppressed. One fact which officers learned through this interrogation was that Newman owned the automobile in question. The jury were never told this fact.
Appellants did not testify in their own behalf nor did they present any other evidence, though in the sentencing phase of the trial Hinton testified through an interpretor that he was not guilty.
Prior to trial, defense counsel moved pursuant to Code Ann. § 27-1403 for a list of witnesses. Three witnesses were identified on the indictment, and no question subsequently arose as to their testimony; but five additional names were provided defense counsel by the prosecutor in a telephone conversation held eight days prior to trial, and no written list of these names was ever provided. Additionally, two other witnesses testified at trial after the prosecutor stated in his place that their testimony was newly discovered. One witness, McBride, the owner of the bar, testified at trial though he was never named in any list, written or oral, and no statement was made that his testimony was newly discovered.
Appellants raise many of the same issues on their separate appeals, and these common points will be discussed first.
1. With reference to both appellants' enumerations of error on the general grounds, we note that it is the sufficiency of the evidence alone which concerns an appellate court after a verdict of guilty, and our only question is whether there is any evidence authorizing the verdict. Ridley v. State, 236 Ga. 147, 149, 223 S.E.2d 131 (1976).
The facts detailed above are adequate to show that the victim's account of the rape episode was sufficiently corroborated by trial testimony of her outcry, dishevelment, near hysteria and injury. See Lynch v. State, 234 Ga. 446, 216 S.E.2d 307 (1975). She identified Newman and Hinton in the courtroom as her attackers. The defense presented no evidence, and the state's case withstood cross-examination. The verdict was authorized.
2. Appellants contend that the trial court erred in overruling their motion to suppress evidence of the blood scrapings. They argue that the scrapings were the result of a search which was illegal because warrantless and without exigent circumstances. The state urges the applicability of the plain view doctrine (see Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968)). However, the testimony did not identify scrapings by point of origin, and apparently scrapings from inside and outside the car were mingled and analyzed together.
Because the victim's description of the assailants' automobile, given on the 18th, so closely matched the appearance of the automobile parked near the bar which she pointed out on the night of the arrest, the officers plainly had probable cause to believe the automobile had been used in the crime and contained evidence they were entitled to seize. Therefore, we are considering a probable cause search, which proceeds on a different theory than a search incident to an arrest. Chambers v. Maroney, 399 U.S. 42, 49, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), invalidating a warrantless search of an impounded automobile because not sufficiently contemporaneous with an arrest for vagrancy, is thus inapplicable. These officers, as appellants stressed in their briefs, did not know who owned this automobile and were by no means sure that they had in custody the only persons who might try to drive it away. They had no knowledge, prior to the victim's spontaneous identification of the automobile parked on the street, which would have justified a prior effort to come to the bar pre-armed with a search warrant for the automobile. In these circumstances a warrantless seizure of the automobile was eminently reasonable. Carlton v. Estelle, 480 F.2d 759 (5th Cir. 1973).
Where probable cause exists, and it did here, there is no difference under the Fourth Amendment between seizing the car before applying for a warrant, and carrying out an immediate, warrantless search; both are permissible. Chambers v. Maroney, supra, 399 U.S. at 52, 90 S.Ct. 1975; Carlton v. Estelle, supra. Having the right to search the automobile on the spot, officers might also validly search it the next morning after it had been impounded. Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); Cardwell v. Lewis, 417 U.S. 583, 593, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974); Hunter v. State, 127 Ga.App. 664, 667, 194 S.E.2d 680 (1972). The warrantless search of this automobile at the impoundment lot was proper.
There is no merit to appellants' argument that the scrapings should be suppressed because the automobile was searched pursuant to officers' knowledge of its ownership derived from improper questioning of Newman. The alleged failure to comply with the provisions of Code Ann. § 99-4002(c) concerning the interrogation of the deaf is claimed to invoke the exclusionary rule. Without deciding whether exclusion of such evidence from a determination of probable cause would be an appropriate sanction for violation of this code section, we rule that probable cause existed without the officers' later-acquired knowledge of ownership of the automobile.
3. The issue concerning the witness list is governed by Code Ann. § 27-1403, which provides that...
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