Payne v. State, 28889

• Citation: 233 Ga. 294,210 S.E.2d 775
• Decision Date: 18 November 1974
• Docket Number: No. 28889,28889
• Parties: Thomas Robert PAYNE, Jr. v. The STATE.
• Court: Supreme Court of Georgia

Page 775

210 S.E.2d 775

233 Ga. 294

Thomas Robert PAYNE, Jr. v. The STATE.

No. 28889.

Supreme Court of Georgia.

Nov. 18, 1974.

Rehearing Denied Dec. 3, 1974.

Donald P. Edwards, Atlanta, Howard Moore, Jr., John R. Myer, Atlanta, for appellant.

George W. Darden, Dist. Atty., Joseph L. Chambers, Asst. Dist. Atty., Marietta, Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

HALL, Justice.

Thomas Robert Payne, Jr., appeals his conviction of rape and aggravated sodomy. The modus operandi of the attack and the victim's opportunity to identify Payne became issues at the trial.

Between 2:00 and 3:00 a.m. on Sunday morning, March 26, 1972, the victim, a white woman, left her job and drove alone to her home in Cobb County. At some point along the way she noticed that a car was following her but she dismissed the fact thinking it might have been a neighbor. The car followed her all the way home. The evening was foggy; there were no street lights in her neighborhood; there was a yellow light burning over her carport and one light burning inside her house. At her home, before she emerged from her automobile, she saw a black man looking in her car window. He then opened the door, grabbed her and threw a coat over her head. The victim was forced into the back yard and raped. She then was 'pushed' around her house, the assailant staying behind her the whole time, to another corner of the house where the second offense took place. She was then pushed toward his car, the engine of which she could hear running, but she screamed and he ran. She sought refuge in a neighbor's home, and police were notified.

Though the details of her identification of her assailant will be more thoroughly discussed below, basically she said he was a tall black man of medium build. At this time there was no reason to suspect Payne, a noted basketball player, and the large group of photos which the police asked the victim to review did not include Payne. She identified no one on that occasion. Some days later, on April 16, 1972, another white woman reported to police that she had been accosted by a tall black man under very similar circumstances in the early morning hours, and that she had foiled his attack and chased him back to the automobile in which he had followed her home, noting his license number. The car was registered to Payne. Subsequently, in investigating the instant crime and other rapes and assaults in the general area, police showed the prosecutrix and other victims either a live or photographic lineup, or both, in which Payne was present. The prosecutrix here identified Payne as very like her attacker each time he or his photo was present in the group she viewed. Other women also identified Payne as having similarly accosted them.

Payne was indicted on November 20, 1972, and was tried on June 28 and 29, 1973, by a jury which found him guilty. On this appeal he raises ten enumerations of error.

I. The Pre-Trial Discovery Motion.

Payne first enumerates error in the superior court's denial of his pre-trial discovery motion. The 'Motion for Discovery and Inspection, Issuance of Subpoena Duces Tecum and Production of Evidence Favorable to the Accused' sought 23 enumerated classes of information from the prosecution's files, and Payne's attorney argued before trial that the files should be produced for his personal inspection. The trial judge refused the request for personal inspection, but made an in camera inspection of all the material in the state's file and then passed an order stating that the file contained no information nor evidence favorable to the accused; that 13 of the requested types of information had already been furnished Payne; that the motion was overruled with respect to the remaining items because a contrary decision would compel the prosecutor to open his files to the accused contrary to White v. State, 230 Ga. 327, 196 S.E.2d 849.

Payne argues that his motion was grounded in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737; Williams v. Dutton, 400 F.2d 797 (5th Cir. 1968); and United States v. Eley, 335 F.Supp. 353 (N.D.Ga.1972); and that this court's decisions in White, supra and Walker v. State, 215 Ga. 128, 109 S.E.2d 748 are in conflict with federal precedent.

It is unnecessary herein to consider whether there is conflict, because it is irrelevant to the decision of this appeal. The in camera inspection which was made by the trial court comports with the procedures suggested by the federal cases Payne cites. The conduct of an in camera inspection, and the trial court's ruling that there was nothing in the file favorable to the accused, satisfies the requirements of Brady, supra, in which it was held that 'the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' 373 U.S. p. 87, 83 S.Ct. p. 1196. The federal courts recognize no right in a defendant to peruse the state's file personally. See Williams v. Dutton, supra, 400 F.2d p. 800. We also note that at no time has Payne pointed even vaguely or generally to any item of information or class of information in the state's file which might conceivably have been favorable to him. Under these circumstances, there is no merit in this enumeration of error. Hicks v. State, 232 Ga. 393, 207 S.E.2d 30; Williams v. Dutton, 431 F.2d 70 (5th Cir. 1970).

II. The Pre-Trial and In-Court Identification Procedures.

Payne's enumerations 2 and 9 complain that certain pre-trial identification procedures violated his due process and equal protection rights, and that the trial court erred in refusing on his motion to strike the victim's in-court identification which was grounded in these impermissibly suggestive procedures.

The record reveals that the police utilized four pre-trial identification procedures in attempting to identify the rapist. At some time between March 31 and April 16, the victim was shown photographs of between 250 and 300 black males. Payne was not in the group, and the victim made no identification. On April 20 (following the April 16 identification of Payne as the owner of the automobile in which a tall black man followed another white woman and then accosted her) she was shown a display of photographs of seven black males. After approximately 60 seconds she picked up numbers three and seven, put three down and said that seven 'resembled him a bit.' Number seven was Payne. On May 22, the Atlanta police conducted a lineup in which Payne participated. Upon the recommendation of his counsel, who was present at the lineup, a method was employed to disguise Payne's height of seven feet two inches. All men participating, eight black men, were seated behind a table, with a blanket covering the front of the table to hide their legs, and all save Payne were raised by seating them on telephone books, so that Payne and one other man appeared to be the two shortest of the group, though all head heights were approximately the same. The victim and numerous other women who had been recently subjected to rapes or attempted rapes viewed the lineup. The victim, after looking through the viewing window for one or two minutes, said 'Two of them look like him, the first one and the second one.' Payne was the second man. On October 7, the victim was shown a photographic display of eight black men including previously unused photographs of Payne. A front view and profile view of each man were shown. The detective in charge testified that this test was made to see if the victim was still able to identify the rapist seven months after the attack. By insert in the photograph, or by a placard around the subject's neck, each full face photograph bore a sign at the bottom. For six men, including Payne, the man's height and weight appeared in small script at the bottom of the sign. Two men were shown standing before a lined chart which presumably showed height. The signs of two men were labelled 'Identification Bureau, Cobb Payne, bore an Atlanta label. She positively Payne, bor an Atlanta label. She positively identified Payne after viewing the sixteen photographs for from 60 to 90 seconds.

Payne argues that the victim's identifications of him were not credible because she had never given a description of the rapist which actually fit Payne. The record shows that there were a few possible discrepancies in the descriptions given by the victim at various times, but they were not crucial. Her neighbor's testimony was that after the attack she was hysterical, and her first description was given shortly thereafter to Cobb County police. The police report of her statement showed she described him as a black male, six feet two with medium build and dark toned skin, clean shaven, having short hair, rotten teeth and a stutter. Payne is a black male, seven feet two inches tall, with dark toned skin, and apparently at all times has had healthy teeth. One detective testified that she told him that her initial statement to the Cobb County police was that the rapist was seven feet tall, but they thought she was exaggerating and encouraged her to reconsider. She testified she never saw him standing and was unsure of his height except that he was tall. With reference to his teeth, the victim testified that she had never stated they were rotten, but had said they appeared to have a defect. She could not remember whether she had said he stuttered. Payne urges that no testimony was given that he actually stuttered; however, the following sentence appears at the mid-point of his unsworn statement, which ran 15 pages in transcript form: 'I've tried all my life to do-do-do-do-do-the right thing.' In light of the fact that Payne was not arrested until almost two...