Reese v. State, 55181
| Decision Date | 09 March 1978 |
| Docket Number | No. 55181,No. 3,55181,3 |
| Citation | 243 S.E.2d 650,145 Ga.App. 453 |
| Parties | David REESE v. The STATE |
| Court | Georgia Court of Appeals |
Land, Cavalli & Atkinson, Tyrus R. Atkinson, Jr., J. Richard Edwards, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., H. Allen Moye, Joseph J. Drolet, Asst. Dist. Attys., Atlanta, for appellee.
The appellant was charged in four separate indictments with four counts of rape, one count of robbery, and one count of armed robbery. He was found guilty on all counts in a single trial. This appeal is from the denial of his motion for new trial.
1. The trial court did not err in overruling the appellant's motion to suppress evidence allegedly seized from his person pursuant to an illegal arrest.
While on routine patrol duty one night, the arresting officer observed the appellant "hurrying" from a lot behind an empty filling station in an area of town where several rapes had been reported over the previous few months. The officer stated that the rapist had been described in police reports as a black male, approximately 5' 9"' tall and weighing approximately 200 pounds. He was last reported to have been seen wearing a multicolored shirt and beige pants and was also reported to be armed and to have worn a ski mask on several occasions.
The officer testified that his attention was drawn to the appellant because his clothes and physical characteristics matched the description of the rapist given in the police reports and because he slowed to a walk as soon as he spotted the patrol car. The officer then noticed that the appellant had an object stuffed under his belt which had the appearance of a gun. The officer got out of the patrol car, approached the appellant, and immediately seized this object. It proved to be a plastic penis, or "dildo."
As he seized the dildo, the officer noticed an orange object in the appellant's hand and seized this also. It proved to be a ski mask. The appellant was immediately taken into custody, although he was originally charged not with rape but with "prowling." He was then taken to police headquarters, where he was identified by four rape victims in lineups held that night and the following day, and formally charged with rape.
" Cunningham v. State, 133 Ga.App. 305, 309, 211 S.E.2d 150, 153; Allen v. State, 140 Ga.App. 828, 831, 232 S.E.2d 250 (1976). See State v. Carter, 240 Ga. 518, 242 S.E.2d 28 (1978).
Although the description of the rapist contained in the police lookout was general, it supplied ample basis to give the officer an "articulable suspicion" that the appellant was wanted for rape and to detain him for questioning. The officer was thereupon authorized to seize the dildo in the reasonable belief that it was a weapon and to seize the ski mask from the appellant's hand in order to determine whether it contained a weapon. See generally Terry v. Ohio, supra; Adams v. Williams, supra. After discovering the ski mask, the officer had sufficient information to warrant the reasonable belief that the appellant was in fact the rapist described in the police reports. He was accordingly authorized to make the arrest pursuant to Code Ann. § 27-207 to prevent a "failure of justice for want of an officer to issue a warrant." See Sanders v. State, 235 Ga. 425, 440, 219 S.E.2d 768 (1975); Peters v. State, 114 Ga.App. 595, 596, 152 S.E.2d 647 (1966).
The fact that the appellant was not initially charged with rape but with another, apparently baseless, charge does not invalidate the arrest. It is clear from the record that the actual reason he was taken into custody was because he was believed to be the rapist and that this belief was a reasonable one under the circumstances. The appellant's assertion to the contrary notwithstanding, this is not a case where an arrest was made on a vague suspicion of some unspecified criminal activity and the suspect later charged with an unsolved crime unrelated to the arrest. On the contrary, here the arresting officer suspected the appellant of the crime for which he was ultimately charged from the first moment he saw him. It is obvious that the initial charge of "prowling" was made merely as a pretext for taking him into custody until a positive identification could be made by a specific victim. Since we have ruled that no such pretext was necessary, the mere fact that it was used does not require a reversal of the convictions.
2. The appellant further contends that the trial court erred in refusing to suppress testimony regarding the lineups which were held following the arrest and the subsequent in-court identifications made by the four rape victims. He asserts the following reasons: (1) the lineups were the fruit of an illegal arrest; (2) he was unlawfully prevented from securing the presence of his retained counsel; (3) one of the victims had recently been shown a photograph of the appellant; and (4) another of the victims identified the appellant from his voice, which she said was not similar to the voices of the other members of the lineup.
We have previously disposed of the arrest issue in Division 1 of this opinion. With regard to the absence of the appellant's attorney, we find no indication that the police were responsible for this. They merely declined to delay the lineups when the appellant was unable to locate him on the telephone. It is well settled, of course, that an accused has no automatic constitutional right to counsel at a pre-indictment lineup. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); West v. State, 229 Ga. 427, 192 S.E.2d 163 (1972); Wilson v. State, 237 Ga. 657(1), 229 S.E.2d 424 (1976). Under the circumstances of this case, we do not find that the absence of counsel invalidated the lineups.
Although it is true that one of the victims had seen a photograph of the appellant a few hours before seeing him in the lineup, this in itself amounted to a positive identification under the circumstances, since she chose the photograph from among six others showing men similar in appearance. She had previously viewed hundreds of photographs of other persons in an attempt to identify the rapist, without choosing any of them. It does not appear that the photographic display from which this witness identified the appellant was in any way suggestive, or, therefore, that it gave rise to a "substantial likelihood of irreparable misidentification." Accordingly, it could not have tainted the subsequent lineup identification. See Payne v. State, 233 Ga. 294, 299, 210 S.E.2d 775 (1974); Fleming v. State, 236 Ga. 434, 436, 224 S.E.2d 15 (1976); Heyward v. State, 236 Ga. 526(1), 224 S.E.2d 383 (1976); Dodd v. State, 236 Ga. 572, 573-574, 224 S.E.2d 408 (1976). Similarly, it has not been shown that the victim who identified the appellant from his voice did so because of any suggestiveness in the identification procedure or that the appellant was in any way caused to stand out from the others. The witness, who had never seen her assailant's face, heard each member of the lineup make an identical statement and then chose the appellant because, she said, she recognized his "distinctive" voice. We are not prepared to accept the appellant's contention that this procedure was invalidated by the failure of the police to fill the lineup with other persons having similarly distinctive voices. See generally Wimberly v. State, 233 Ga. 386(3), 211 S.E.2d 281 (1974).
The testimony on the motion to suppress identification testimony established that each of the victims made an independent, prompt and positive identification of the appellant as her assailant. Each denied having been coached by the police or by anyone else. In the absence of any indication that the procedures used were suggestive or otherwise unreliable, it was not error to deny the motion.
3. During the trial it was revealed that Larry Bailey, the fiance of one of the rape...
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