Paxton v. State

• Decision Date: 17 September 1981
• Docket Number: No. 62141,62141
• Citation: Paxton v. State, 285 S.E.2d 741, 160 Ga.App. 19 (Ga. App. 1981)
• Parties: PAXTON v. The STATE.
• Court: Georgia Court of Appeals

Page 741

285 S.E.2d 741

160 Ga.App. 19

PAXTON v.The STATE.

No. 62141.

Court of Appeals of Georgia.

Sept. 17, 1981.

Rehearing Denied Oct. 13, 1981.

Certiorari Dismissed Nov. 19, 1981.

A. Frank Grimsley, Cordele, for appellant.

Gary C. Christy, Dist. Atty., for appellee.

SHULMAN, Presiding Judge.

Appellant was found guilty of armed robbery.The victim, Mrs. Pearl Rhodes, testified that on the morning of August 2, 1979, the appellant entered her house without permission and surprised her in her bedroom.Mrs. Rhodes said that she initially believed the intruder to be the minister of music at her church.Subsequent comparison of pictures of the two men revealed a remarkable similarity in their physical appearance.Mrs. Rhodes realized her error when the intruder threatened her with a gun and demanded that she give him all her money.She had no cash in the house so the robber took her billfold which contained numerous credit cards.Appellant was later arrested in Venice, Florida, when a routine license plate check through an NCIC computer revealed that the car he was driving had been reported stolen from West Virginia.A toy pistol was found in the back seat of the car.A billfold taken from the appellant contained Mrs. Rhodes' credit cards.

1.In two enumerations of error, appellant attacks the denial of his motion to suppress.First, he argues that the initial stop by the Venice, Florida, police officer was illegal because the information output of the NCIC computer was not sufficient to establish cause to arrest him.We disagree.

Although there appear to be no Georgia cases directly addressing the issue of whether information from the National Crime Information Center computer can, without more, establish probable cause for an arrest, the United States Court of Appeals for the Fifth Circuit has considered the issue: "While NCIC printouts are not alone sufficient evidence to permit conviction, the cases uniformly recognize that NCIC printouts are reliable enough to form the basis of the reasonable belief which is needed to establish probable cause for arrest."United States v. McDonald, 606 F.2d 552, 553.See alsoCommonwealth v. Riley, 284 Pa.Super. 280, 425 A.2d 813.We agree with the Fifth Circuit's assessment of the reliability of the NCIC computer and hold that the police officer in Venice, Florida, had probable cause to believe that appellant was driving a stolen car.It follows that the original stop was lawful and so was appellant's arrest.

Appellant's second complaint pertaining to the denial of his motion to suppress concerns the search of his person conducted upon appellant's arrest.He argues that the search exceeded the limitations set out in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889).Terry is not applicable to the facts of this case because the appellant was effectively under arrest when the officer handcuffed him."An arrest is accomplished whenever the liberty of another to come and go as he pleases is restrained, no matter how slight such restraint may be."Clements v. State, 226 Ga. 66, 67, 172 S.E.2d 600.We have previously concluded that the appellant's arrest was lawful."Once a defendant has been placed under custodial arrest, police may search his person, incident to that arrest, for weapons or contraband."Graves v. State, 138 Ga.App. 327, 329, 226 S.E.2d 131.The trial judge correctly denied the appellant's motion to suppress.

2.Mrs. Rhodes made an in-court identification of the appellant after the trial judge had ruled that the photographic lineup shown to her was impermissibly suggestive.Appellant argues that the trial court erred in allowing her to do so."[C]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247." '[I]f the judge does not find as a matter of law both that the picture spread was impermissibly suggestive and that there is a substantial likelihood of irreparable misidentification, the in-court identification may be put before the jury.'United States v. Sutherland, 428 F.2d 1152, 1155(5th Cir.)"Payne v. State, 233 Ga. 294, 299, 210 S.E.2d 775.Having already determined that the photographic lineup was impermissibly suggestive, the trial court had to determine whether there was substantial likelihood of misidentification."Even if the pre-trial identification is 'tainted' the in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an 'independent origin'.[Cits.]"Code v. State, 234 Ga. 90, 99, 214 S.E.2d 873.In Mathis v. State, 231 Ga. 401, 202 S.E.2d 73, an independent origin of identification was shown when the victim was able to give a precise and accurate description of his assailant before he viewed the photographic lineup.Mrs. Rhodes saw the appellant well enough to notice his uncanny resemblance to the minister of music at her church.Her description of the appellant was accurate enough to qualify as an independent identification."There was sufficient evidence to support a finding that the in-court identification was entirely based upon observations at the time of the robbery and not induced by the conduct of the lineup."Redd v. State, 154 Ga.App 373, 375, 268 S.E.2d 423.Therefore, this enumeration of error is without merit.

3.Appellant's earlier conviction on a stolen car charge was introduced into evidence by the prosecution.Appellant contends that this placed his character into issue in violation of Code Ann. § 38-202."Moore v. State, 221 Ga. 636, 637, 146 S.E.2d 895(1966) states the general rule that, 'On a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly distinct, independent, and separate from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible, unless there be shown some logical connection between the two from which it can be said that proof of the one tends to establish the other.[Cit.]'Thus, before evidence of independent crimes is admissible two conditions must be satisfied.First, there must be evidence that the defendant was in fact the perpetrator of the independent crime.Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter.[Cit.]"Hamilton v. State, 239 Ga. 72, 75, 235 S.E.2d 515.The first criterion is met in the case at bar, since a previous jury found the appellant guilty of stealing the car.

The case of Emmett v. State, 195 Ga. 517, 25 S.E.2d 9, concerns, inter alia, the admissibility of the defendant's auto theft conviction into evidence in his murder trial.The Supreme Court, in Emmett, stated: "If the testimony had related merely to the theft of an automobile, its admissibility might be doubtful; but since it concerned the particular automobile that the defendant had in his possession at the time of the homicide, we have no hesitancy in holding that it was admissible for the purpose stated by the judge ...[T]he offense was a continuing one, and evidence of it would tend to illustrate the defendant's state of mind at the time ...[Cits.]"Id., p. 538, 25 S.E.2d 9.In the case at bar, an automobile meeting the description of the one occupied by the appellant at the time of his arrest was observed in Mrs. Rhodes' neighborhood on the morning of the robbery.We hold that the admission of the appellant's previous auto theft conviction served to place him at the scene of the crime, to identify him, and to illustrate his bent of mind and course of conduct.

4.A witness for the state was allowed to testify in regard to the appellant's escape and flight from West Virginia authorities while he was awaiting extradition to Georgia for this trial.Appellant contends that this was error because a proper foundation had not been laid to show that he fled because of the charges pending against him in the State of Georgia."When facts are such that the jury, if permitted to hear them, may or may not make an inference pertinent to the issue, according to the view which they may take of them, in connection with the other facts in evidence, they are such that the jury ought to be permitted to hear them.[Cits.]"Johnson v. State, 148 Ga.App. 702, 703, 252 S.E.2d 205.In the present case, the trial judge charged, "You members of the Jury may consider whether or not you will draw an inference of guilt from flight or similar acts, if proven.Flight or similar acts, if any, is subject to explanation.You decide the weight to be given to it or whether to draw an inference of a consciousness of guilt or not.You decide if there was flight or similar acts, whether it was due to a sense of guilt or for other reasons.And if for other reasons, no inference hurtful to the defendant should be drawn."This charge is similar to the ones given by the trial court in Moon v. State, 154 Ga.App. 312(5), 268 S.E.2d 366, andAnderson v. State, 153 Ga.App. 401, 265 S.E.2d 299, which were held to be sufficient instructions to the jury with regard to the proper perspective they should take concerning the defendant's flight.We find no error on this enumeration.

5.Appellant made a motion for a directed verdict of acquittal on the armed robbery charge, contending that the state had, at most, shown robbery by intimidation since there was no evidence to support the inference that he in fact used a real gun.¹The trial judge denied that motion and the appellant claims that denial was error.We disagree."It is only when the evidence demands a verdict of not guilty that it is error for the...