Quick v. State

• Decision Date: 07 April 1983
• Docket Number: No. 65538,65538
• Citation: 304 S.E.2d 916,166 Ga.App. 492
• Parties: QUICK v. The STATE.
• Court: Georgia Court of Appeals

Page 916

304 S.E.2d 916

166 Ga.App. 492

QUICK v. The STATE.

No. 65538.

Court of Appeals of Georgia.

April 7, 1983.

Rehearing Denied May 2, 1983.

Certiorari Dismissed May 16, 1983.

James Finkelstein, Albany, for appellant.

J. Brown Mosley, Dist. Atty., W. Paul Fryer, Asst. Dist. Atty., for appellee.

BIRDSONG, Judge.

Appellant was tried and convicted of aggravated sodomy, public indecency, and two counts of aggravated assault arising from three separate incidents occurring in December 1981. He was acquitted of a kidnapping charge contained in the single indictment.

In late 1981, the Decatur County Sheriff's Department and the City of Bainbridge Police Department received several reports of sex-related incidents in Bainbridge and Decatur County involving a black male. Several of the incidents, including two of the three for which appellant was tried, occurred when a young, black male driving a black and silver (or gray) automobile with flashing lights pulled to the side of the road vehicles being driven by females. One aggravated assault charge in this case arose from a December 9 incident during which a prosecutrix in this case was pulled to the side of the road by another vehicle and approached by the driver of that vehicle wielding a small pistol. The other aggravated assault and the aggravated sodomy charges arose from an incident occurring on December 20 during which another prosecutrix was pulled to the side of the road in a similar manner, assaulted with a small pistol, and sodomized. The third prosecutrix in this action was the witness of an incident of public indecency occurring on December 14 in the Bainbridge Shopping Mall parking lot when a black male exposed his genitals to her while he was seated in his automobile. The latter witness obtained the license plate number of the perpetrator's automobile and turned it over to the Bainbridge police. This number was later turned over to the Decatur police, who traced the license to a vehicle registered to appellant at a Seminole County address.

Decatur investigating officer Wayne Kirksey, accompanied by a Seminole County police officer, visited appellant's residence on December 28. Kirksey noted that appellant's vehicle was a 1974 black and silver Monte Carlo. Appellant agreed to accompany Kirksey to the Decatur County Sheriff's Department for questioning. After arriving at the sheriff's department, appellant received the Miranda warnings, signed a waiver, and was questioned for approximately 30 minutes. During the course of the questioning, appellant denied involvement with any of the incidents under investigation but did reveal that his mother owned a gun that he sometimes carried in his car.

Appellant was detained overnight in the Decatur County Jail and placed in a lineup on the afternoon of December 29. During the lineup, he was identified by the victim as being the perpetrator of the aggravated sodomy. A warrant was then taken in connection with that incident. On December 31, a second lineup was conducted during which the victims of both the other aggravated assault and the public indecency charges identified appellant. Warrants were then taken in connection with both of these incidents. The gun referred to by appellant in his initial questioning was delivered to the Decatur police by appellant's mother on December 29. Both assault victims identified the gun as being the weapon used in connection with each assault.

1. Appellant enumerates 33 separate errors but does not address 15 in his brief. Pursuant to this court's Rule 15(c)(2), these enumerations are considered abandoned. Although appellant has attempted to address these enumerations in a supplemental brief, filed after oral argument, "such brief may supplement only an original brief's treatment of the same subject. An additional brief may not be used to argue enumerations not argued in the original brief." MacDonald v. MacDonald, 156 Ga.App. 565, 569, 275 S.E.2d 142.

2. Appellant's third, eleventh, twenty-sixth, and twenty-seventh enumerations challenge the trial court's rulings to admit into evidence statements made by appellant after his arrest, the lineup identifications, testimony regarding the victims' demeanor at the lineups, and the gun obtained from appellant's mother. These enumerations are premised on the argument that appellant's arrest was illegal and that his statements, the lineup, and the gun were all fruits of that arrest and inadmissible pursuant to Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 and United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537.

Appellant's argument must fail, however, because the facts do not support his contention that his arrest was illegal. At the time Kirksey decided to visit appellant's residence, he was in the process of investigating incidents of sex-related offenses occurring in late 1981 in Decatur County. As noted, several incidents occurred when the perpetrator, who was always reported to be a black male, pulled women traveling alone to the side of the road by flashing his headlights. At least two of the victims were assaulted with a small handgun. The incident of public indecency occurred at Bainbridge Mall, where one of the assault victims worked and nearby the place of employment of the other. Several of the victims described the perpetrator's vehicle as being a "black over silver, early 70's Monte Carlo or Grand Prix." Several of the victims also reported that the perpetrator was wearing a beach-type or knit hat. One of the victims identified the tag number on appellant's black and silver 1974 Monte Carlo. Upon Kirksey's arrival at appellant's residence, appellant was wearing a beach-type hat and his car matched the victims' descriptions. Kirksey also noted that appellant's physical appearance matched that given by the victims.

The undisputed evidence showed that appellant voluntarily consented to accompanying Kirksey to Decatur County for questioning. During this questioning, it was learned that appellant sometimes carried his mother's pistol in his car.

"[A]n arrest is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense." Durden v. State, 250 Ga. 325, 326, 297 S.E.2d 237. Based upon the information known to the officers at the conclusion of the questioning of appellant, the officers clearly had a reasonably trustworthy information sufficient to warrant a prudent man in believing that appellant had committed a felony; therefore, probable cause existed for the arrest and detention of appellant until the lineup the next day. See Cobb v. State, 244 Ga. 344(4), 260 S.E.2d 60 (matching description of vehicle and occupants sufficient probable cause for arrest); Dodson v. State, 237 Ga. 607(1), 229 S.E.2d 364 (license number of vehicle reported by victim sufficient probable cause for search of vehicle). Subsequent to the positive lineup identification of appellant by the victim of the aggravated sodomy the day after appellant's arrest, a warrant relating to that incident was obtained. Appellant contends that his arrest was in violation of OCGA § 17-4-20 (Code Ann. §§ 26-902, 27-207); however, an arrest meeting the constitutional requirements "of probable cause [is] valid whether or not [OCGA § 17-4-20] was violated." Vaughn v. State, 247 Ga. 136, 138, 274 S.E.2d 479; Sanders v. State, 235 Ga. 425, 438, 219 S.E.2d 768. "An arrest and search, legal under federal law, are legal under state law." Durden, supra, 250 Ga. at p. 327, 297 S.E.2d 237.

Since appellant's arrest was valid, the trial court properly denied his motion to suppress and trial objections relating to his statements, the pistol, and the lineup identifications. Consequently, these enumerations of error are without merit.

3. Appellant moved to sever the trial of the charges arising from the three separate incidents, and his seventh enumeration challenges the trial court's denial of his motion. "Offenses may ... be joined for trial when they are based (1) 'on the same conduct' or (2) 'on a series of acts connected together' or (3) on a series of acts 'constituting parts of a single scheme or plan' .... If the offenses are joined for any of these three reasons, the defendant does not have an automatic right of severance; instead, the trial judge may grant severance if it is necessary 'to achieve a fair determination of the defendant's guilt or innocence of each offense.' " Haisman v. State, 242 Ga. 896, 900, 252 S.E.2d 397. "It appears that [each of the counts with which appellant was charged] were joined and tried on the theory that they evidenced 'a series of connected acts or constitut[ed] parts of a single scheme or plan.' [Cit.]" Barber v. State, 161 Ga.App. 435, 436, 288 S.E.2d 353. "[T]he trial judge has discretion concerning the severance of a trial when there is evidence of 'two or more offenses based on the same conduct or on a series of connected acts or constituting parts of a single scheme or plan.' " Johnson v. State, 158 Ga.App. 398, 399, 280 S.E.2d 419.

We hold that there was sufficient evidence of "a series of connected acts," Id., to authorize a single trial of the five counts charged in the indictment, and that the trial judge did not abuse his discretion in denying appellant's motion. Three of the counts (aggravated sodomy, kidnapping, and one aggravated assault) involved the same victim and...