Phillips v. State

• Decision Date: 04 June 1992
• Docket Number: No. A92A0473,A92A0473
• Citation: 204 Ga.App. 698,420 S.E.2d 316
• Parties: PHILLIPS v. The STATE.
• Court: Georgia Court of Appeals

Page 316

420 S.E.2d 316

204 Ga.App. 698

PHILLIPS v. The STATE.

No. A92A0473.

Court of Appeals of Georgia.

June 4, 1992.

Reconsideration Denied June 11, 1992.

Paul McGee, for appellant.

Lewis R. Slaton, Dist. Atty., Carl P. Greenberg, Asst. Dist. Atty., for appellee.

BIRDSONG, Presiding Judge.

James K. Phillips appeals his judgment of conviction of rape, armed robbery and burglary, and the sentence.

Shortly before the rape incident, appellant was observed by a neighbor of the victim standing across the street looking in the direction of the victim's and the witness' windows.

The rape victim testified that she had never seen her assailant before the incident; she heard her bedroom door open and saw a man wearing a hat and holding a knife; there was little light in the bedroom; she could see the man had socks on his hands, which he later discarded; she screamed and the man jumped on her; he told her to be quiet or he would kill her; the assailant forced her to go downstairs to give him money and she could see his face well as it became illuminated by window light when he was standing facing the window; she gave the man all the money she had in her wallet and he also took certain jewelry; she could see the assailant clearly when he was sitting on the sofa counting the money; the assailant then raped her on the living room sofa; he thereafter pulled her into the bathroom, turned on the light, and told her to stay there; she could see part of his face in the bathroom light as he turned partly toward her; she made an in-court identification of appellant as the person who raped her; a photograph of appellant depicted how her assailant looked the night of the incident (the person had a short, small mustache in the photograph); State Exhibit 19 is the hat worn by the assailant that night; the incident lasted approximately 30-40 minutes; after the incident she went into shock and could not give the police an immediate description of her assailant; at the hospital she told an officer that the person who raped her had no facial hair.

Later that night after returning to her apartment complex, the victim described her assailant to one officer as being a black male, approximately 25-30 years of age, at least six feet tall, slender build, curly-like hair, clean shaven as far as she could tell, dark complexion, and wearing a T-shirt and a jacket. Another officer testified that the victim described her assailant to him that night as being between five feet ten and six feet tall, medium build, black male, no glasses, and no facial hair.

The apartment of the rape victim was next door to a vacant apartment in which appellant was found five days later. Appellant was convicted of committing burglary in this vacant apartment. The owner of the premises previously had observed that the back sliding door of the apartment had been "jimmied" open and that the electric stove burners had been left on. Subsequently, he found a black male in the apartment; the stove burners were on; the man's pants and shirt were lying across open cabinet doors apparently drying over the stove. The intruder put his pants and shirt on and asked to retrieve his wallet and shoes. The owner who was carrying a gun told the intruder to accompany him to the office, but once outside the intruder started to back away and appeared to be getting ready to flee. The owner called for the intruder to stop and fired two warning shots into the ground, but appellant ran into a wooded area where he was found about 20 minutes later by the police. The police brought appellant back to the apartment complex and the owner identified him to the police as the intruder. Examination of the apartment showed the lock had been popped loose on the sliding glass door. Nothing was taken from the apartment and only the back sliding door was damaged. The owner made an in-court identification of appellant as the person who had intruded into the apartment without permission.

After the State rested, the defense rested without calling any witnesses in behalf of appellant. Held:

1. Appellant asserts that he was denied his right to counsel at the lineup because it was held after the date originally set for his preliminary hearing. However, it appears that at the time of the lineup appellant had not been indicted for rape, the offense at issue at the lineup, but had been indicted on the unrelated charge (Count IV) of burglary of a vacant apartment occurring several days after the rape. The rape indictment was not returned by the Grand Jury until December 1990. A preliminary hearing on the unrelated burglary charge had been scheduled for September 13, 1990, but the hearing was postponed so the rape allegations could be investigated and the lineup was conducted on September 17, 1990. Appellant subsequently was tried on four counts, including the rape count and the count of burglary of the vacant apartment.

No federal constitutional right to counsel exists at a pre-indictment lineup. Evans v. State, 201 Ga.App. 20, 26(3), 410 S.E.2d 146. "The Sixth Amendment right [to counsel] is offense-specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." (Emphasis supplied and punctuation omitted.) McNeil v. Wisconsin, 501 U.S. 171, ----, 111 S.Ct. 2204, 2207, 115 L.Ed.2d 158, 166-167. "The purpose of the Sixth Amendment counsel guarantee--and hence the purpose of invoking it--is to 'protec(t) the unaided layman at critical confrontations' with his 'expert adversary,' the government, after 'the adverse positions of government and defendant have solidified' with respect to a particular alleged crime." (Second emphasis supplied.) Id., 501 U.S. at ----, 111 S.Ct. at 2209, 115 L.Ed.2d at 168. "The right does not apply with respect to one offense where adversary proceedings have been commenced with respect to a different offense, but not that offense." 22 CJS, Criminal Law, § 286, citing inter alia, U.S. ex rel. Hall v. Lane, 804 F.2d 79, 80(1) (7th Cir.), cert. den. Hall v. Lane, 480 U.S. 921, 107 S.Ct. 1382, 94 L.Ed.2d 696. Thus, " 'the viewing of the (defendant at the) lineup took place during (the) investigatory (stages) of the (rape offense) at a time when appellant was not required to have counsel present.' " Williams v. State, 178 Ga.App. 581, 586(4), 344 S.E.2d 247. Nor would the mere showing of a photograph of appellant to the victim before the lineup constitute a "critical stage" requiring the presence of counsel. Durham v. State, 185 Ga.App. 163, 167(4), 363 S.E.2d 607.

2. Appellant further asserts that the trial court erred in admitting the rape victim's pretrial and in-court identification of appellant, as the pretrial identification procedure was so tainted as to require exclusion of the in-court identification, because it was both impermissibly suggestive and resulted in a substantial likelihood of irreparable misidentification.

Specifically, appellant claims that the victim was aware prior to the lineup that there was an individual in jail who may or may not have been her assailant; that appellant was staring directly at the victim when she entered the viewing room (appellant could not see the victim at this time, although she could see him) and, that prior to the lineup she was shown a picture of appellant Phillips. There exists no testimony whether the police conducted a photo lineup or photo spread and whether the photo of appellant was or was not shown individually or during the course of a photo lineup or photo spread. The record merely reflects that sometime prior to the lineup, the victim was shown Phillips' picture, and that no notations or comments were made to the victim in reference to Phillips' presence and participation in the lineup. However, the record does establish that the photograph taken of appellant at the time of his arrest was not shown to the victim. Otherwise, the type of picture shown and the circumstances and date of its showing are not established by the record, and we will not speculate as to these matters. The mere fact the victim was at some unknown time and under some unknown circumstances shown a picture of the person she subsequently identified in the lineup would not taint, as a matter of law, the pretrial identification procedure.

The victim was informed several days earlier a lineup would be conducted, that an individual was in jail who fit the description of her attacker, and this individual may or may not have raped her. She was not told the position in which that individual would appear in the lineup, but under some undisclosed circumstance was shown a picture of appellant prior to trial. Appellant was informed that a physical lineup would be held on September 13, and was advised that if he wanted an attorney present that he needed to notify one and make sure the attorney wanted to be there. Appellant never stated he wanted an attorney, but could not afford one.

The lineup was conducted in a special room equipped with a "one-way mirror" so that the lineup participants could not see the victim. Five people, including appellant, participated in the lineup. The other participants were chosen based on having similar physical features, such as height, weight, complexion, age, and mustache, as appellant had at the time of the lineup. Appellant was allowed to choose his number 3 position in the lineup. Routine police lineup procedures were used. Before the lineup, the victim was told the police could not help her in any way with her identification; that each person would hold a card with a number or have a number above them; and she had to look at any person she suspected as being the assailant carefully and state that it is or is not him. The victim focused her eyes on appellant as soon as she entered the...