Robinson v. State
| Decision Date | 15 July 1991 |
| Docket Number | No. A91A0924,A91A0924 |
| Citation | 200 Ga.App. 515,408 S.E.2d 820 |
| Parties | ROBINSON v. The STATE. |
| Court | Georgia Court of Appeals |
Naman L. Wood, Douglasville, for appellant.
David J. McDade, Dist. Atty., for appellee.
Donald Robinson appeals his judgment of conviction of armed robbery, aggravated sodomy, and kidnapping with bodily injury, and the sentence.
Appellant kidnapped the victim at gunpoint, anally sodomized her by force and against her will, and robbed her, as charged. He enumerates two errors. Held:
1. Appellant asserts the trial court erred in not dismissing the indictment after finding appellant was interrogated without knowledge or permission of his counsel.
Defendant was indicted and represented by counsel at arraignment. Subsequently, appellant was taken to a room by the police where, in the presence of the prosecutor who was so identified and who appellant was told could not talk with him in the absence of appellant's attorney, appellant's physical features were compared by the police to those of persons in photographs. During the course of this procedure, appellant was asked certain identification questions by the police about who was in the photographs, about his beard, his facial marks, his twin brother, and similar matters. The prosecutor stated without contradiction that appellant, upon his arrest, initially said he was Ronald Robinson (which is the name of appellant's twin brother) and was so booked; and, the prosecutor argued he had an "ethical obligation" to be sure he had "the right man" before proceeding to trial. The prosecutor also stated in his place that appellant was told "not to say anything because I was the prosecutor." Appellant testified as to his questioning by the police stating he was shown photographs and asked if the photographs were of him; if he saw a mole or mark on one of the persons in the pictures; how long he had worn a beard; and he was asked questions about his twin brother. Appellant admitted during his testimony that no one had asked him any questions about the facts of the case, the victim, anything happening on the night of the incident, what he was doing during that time frame, or anything about the crime or the case against him; and that any questions he was asked had to do with whether he was the person in the photographs shown him. Appellant was not asked any questions by the prosecutor. Thereafter, the prosecutor stated in his place "that I do not intend to offer any testimony that was produced, or any possible testimony that was produced as a result of somebody asking [appellant] to look at the picture and see if that was him"; and stated he was going to establish identity of appellant by other means.
Appellant asserts for the first time on appeal that prisoners in the Douglas County Jail routinely have had their telephone conversations recorded, and attempts to establish by such argument a pattern of recurring state and federal constitutional violations of the rights of prisoners. The record does not contain evidence in support of such assertions. Factual assertions in briefs that are unsupported by the record cannot be considered in the appellate process. Hudson v. State, 185 Ga.App. 508(1), 364 S.E.2d 635. Briefs cannot be used in lieu of the record or transcript to add evidence to the record. See Williams v. State, 193 Ga.App. 677, 678, 388 S.E.2d 893.
Appellant asserts that the remedy fashioned by the trial court of excluding all evidence obtained or derived from the questioning of appellant without his attorney being present was insufficient, "and that no remedy short of dismissal can remove the taint of the State's lawless actions to deter further such misconduct."
Appellant has failed to cite this court to any portion of the record of trial where evidence was introduced in violation of the trial court's exclusionary ruling. Moreover, at the motion to dismiss hearing, appellant acknowledged he would have to address whether any of the excluded evidence was being introduced subsequently by the State "as questions come up at trial." The trial record reflects no objections were posed thereafter to the introduction of evidence by the State on the grounds it had been excluded by the trial court's remedial order. While appellant's brief does refer to the procedure used by the State to obtain the victim's identification of appellant at trial, the basis of appellant's objection to such identification evidence was the "leading nature of [the] question"; and, appellant's subsequent motion for mistrial was grounded on the contention that because of the leading question posed, the victim now knew who was accused of the crime and her further in-court identification would not be based on any independent recollection or memory. The denial of the mistrial motion has not been enumerated as error on appeal.
In United States v. Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 668, 66 L.Ed.2d 564, the United States Supreme Court stated: (Emphasis supplied.) United States v. Sims, 845 F.2d 1564, 1569(5) (11th Cir.). Our courts and the United States Supreme Court "have held that when considering the appropriate remedy for an alleged constitutional violation involving governmental misconduct, the remedy should be tailored to the injury suffered from the violation alleged and should not result in the dismissal of an indictment, or ... in the granting of a...
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Evans v. State
...is generally disfavored as the remedy for government misconduct should be tailored to the injury suffered); Robinson v. State , 200 Ga. App. 515, 517 (1), (408 S.E.2d 820) (1991) (dismissal is an extreme sanction which should be infrequently utilized). Evans has failed to show that the extr......
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Oliver v. State
...the single enumeration and treat the remaining assertions of error therein as abandoned." (Citation omitted.) Robinson v. State, 200 Ga. App. 515, 518(2)(b), 408 S.E.2d 820 (1991). Despite the inept format which deviates from the law prescribing organization of a brief we will address each ......
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Barnett v. State
...errors within the same enumeration, we elect not to review his claim of error due to failure to grant severance. Robinson v. State, 200 Ga.App. 515, 518(2), 408 S.E.2d 820; West v. Nodvin, 196 Ga.App. 825, 830(4c), 397 S.E.2d 567. However, in the interest of judicial economy, we note that "......
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Toledo v. State
...errors asserted within the single enumeration. Wilson v. Southern R. Co., 208 Ga.App. 598, 606(6) (431 SE2d 383); Robinson v. State, 200 Ga.App. 515, 518(2) (408 SE2d 820); West v. Nodvin, 196 Ga.App. 825, 830(4c) (397 SE2d 567)." Obiozor v. State, 213 Ga.App. 523, 527(4), 445 S.E.2d Even t......