Rogers v. State

• Decision Date: 06 October 1992
• Docket Number: Nos. A92A1240,A92A1317,s. A92A1240
• Citation: 205 Ga.App. 739,423 S.E.2d 435
• Parties: ROGERS v. The STATE. TOWNSEND v. The STATE.
• Court: Georgia Court of Appeals

Page 435

423 S.E.2d 435

205 Ga.App. 739

ROGERS v. The STATE.

TOWNSEND v. The STATE.

Nos. A92A1240, A92A1317.

Court of Appeals of Georgia.

Oct. 6, 1992.

Robert L. Stultz, Ronald C. Goulart, Fort Oglethorpe, for appellant (case no. A92A1240).

John O. Wiggins, Ringgold, for appellant (case no. A92A1317).

Ralph L. Van Pelt, Jr., Dist. Atty., Michael R. McCarthy, Asst. Dist. Atty., for appellee.

JOHNSON, Judge.

Robert Lee Townsend and Lee A. Rogers were indicted for armed robbery; Rogers was also charged with giving a false name to an officer. Tried jointly, they were convicted on all counts and appeal.

The 70-year-old victim, William McNeese, was working in his yard at 9:00 a.m. when two men approached him. The taller man "jerked" a gun in front of McNeese's face while the second man, who McNeese described as having facial hair and a smaller build, ran around behind McNeese and took his wallet containing cash, his checkbook, and keys from his pockets. He described the gun as black or dark in color. Telling McNeese to go inside his house, the two men walked off in the direction of a corner grocery and diner. McNeese and his wife immediately notified the police. A witness who was working at a nearby produce stand that morning observed either a Ford Granada or a Mercury Monarch with two males inside drive very slowly back and forth in the vicinity of the McNeese residence. Within ten minutes of learning of the robbery, he reported this to the police. A lookout was posted and a deputy of the Catoosa County Sheriff's Office spotted a vehicle which matched the description going west on Highway 2. Calling for a backup, he followed the car into a convenience store parking lot and told the occupants they were under arrest. Upon searching the interior of the vehicle the officers found a loaded .22 caliber dark blue steel pistol under the front passenger seat and McNeese's checkbook on the front seat. Less than 30 minutes after he was robbed, McNeese was taken to the convenience store and positively identified both men as the perpetrators. At trial he again identified Rogers as the man who rifled his pockets and Townsend as the one who held the gun.

1. Both appellants assert that the State failed to carry its burden of proving that McNeese's in-court identification was not tainted by his prior one-on-one identification. Thus, they argue, the trial court erred in allowing McNeese to make an in-court identification. They argue that the showup was impermissibly suggestive because the evidence showed McNeese had been informed the perpetrators had been caught and further because they saw his checkbook in the police car before he made his identifications. Finally, they assert that such a showup was unnecessary, as no specific emergency existed at the time. However, we find there was no substantial likelihood of irreparable misidentification, and therefore no reversible error.

" 'Pre-indictment confrontations should be scrutinized to determine if they are unnecessarily suggestive and conducive to irreparable mistaken identification. The totality of the circumstances must be viewed to determine if there is a "likelihood of misidentification which offends against due process and 'the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation.' (Neil v. Biggers, 409 U.S. 188, 199 (93 SC 375, 34 LE2d 401) (1982) [1972].)" [Cit.]' [Cit.]" Hood v. State, 199 Ga.App. 774, 775-776, 406 S.E.2d 120 (1991). "Although the practice of showing suspects singly to a witness for identification purposes has been widely condemned, [cit.], 'our appellate courts have consistently upheld the admission of in-court identifications when prior one-on-one showups are reasonably and fairly conducted at or near the time of the offense. (Cits.)' [Cit.]" Baines v. State, 201 Ga.App. 354, 357(4), 411 S.E.2d 95 (1991). Accord Andrews v. State, 201 Ga.App. 329, 330(1), 411 S.E.2d 52 (1991); McCoy v. State, 190 Ga.App. 258(3), 378 S.E.2d 888 (1989).

The robbery here occurred in bright daylight and neither perpetrator had his face hidden or covered. The victim noted that the gunman was taller and the one who removed his possessions from his pockets was slighter and had a beard. Less than two months later at trial he made positive in-court identifications of each defendant. The pistol, as he described it, was found in the suspects' car. Here, as in Hood, supra, "[e]xcept for the passage of time, the so-called show-up in this case was somewhat akin to an immediate on-the-scene confrontation between the victim and a suspect. Considering the relevant factors, it was not unnecessarily suggestive, and under the totality of the circumstances [McNeese's] recognition of appellant[s] when [he] came to the [convenience store] did not give rise to a likelihood of misidentification but was instead reliable. [Cits.] Thus, [McNeese] was not precluded from making the in-court identification." Id., 199 Ga.App. at 776, 406 S.E.2d 120. Accord Williams v. State, 188 Ga.App. 496, 498(2), 373 S.E.2d 281 (1988).

2. Rogers further contends that the trial court erroneously allowed McNeese to identify him in court because his identification was based upon events following an illegal arrest in violation of his constitutional rights. "Our courts have held that a warrantless arrest legal under federal law--that is, one made on the basis of probable cause--is legal under state law, and that the requirements of OCGA § 17-4-20(a) and federal law are the same. Durden v. State, 250 Ga. 325, 326-327(1) (297 SE2d 237) (1982). 'Under this standard an 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 ... an offense. (Cit.)' Id. at 326(1) ." State v. Thurmond, 203 Ga.App. 230, 231, 416 S.E.2d 529 (1992).

The evidence here showed that shortly after the robbery was reported, a police lookout was broadcast for two males in a gray, four-door Ford Granada, an automobile almost identical in body style to a Mercury Monarch which the appellants were driving when stopped. A deputy spotted a vehicle matching this description, followed it into the convenience store parking lot, and told the occupants they were suspects in an armed robbery. He instructed them to put their hands on the trunk. Some 30 seconds later other law enforcement personnel began arriving at the scene. Rogers gave a false name, stated he had no identification and could not produce a driver's license. Both suspects were then handcuffed and placed in a patrol car. The car was searched and a checkbook and pistol matching the description McNeese had given were found inside. The victim was brought to the convenience store within an hour of the incident and confirmed that the suspects were in fact the perpetrators.

"Although the description of the car ... did not exactly match the radio message the officer received, there is no requirement that [it] do so [cit.], and police officers are authorized to use information received by radio as part of their basis for establishing probable cause. [Cit.]" Morgan v. State, 195 Ga.App. 732, 735(3), 394 S.E.2d 639 (1990). Further, considering the totality of the circumstances, the evidence shows that appellants were arrested in the parking lot of the convenience store because they were no longer free to go when they were handcuffed and put in the back of a police car. "Detention beyond that authorized by a Terry stop is an arrest and no formal procedures are required. [Cit.] Therefore, since the police officer had probable cause to arrest [appellants] at the moment he did so, the arrest was valid under both the United States and Georgia Constitutions. [Cits.]" (Indention omitted.) Id. at 735, 394 S.E.2d 639.

3. Rogers protests that the trial court committed reversible error by allowing the State to introduce his answers to questions asked during a custodial investigation conducted after he refused to sign a waiver of rights form. After holding a Jackson-Denno hearing, the trial court found that Rogers had been fully advised of his constitutional rights; that his statements to the detective interrogating him were freely and voluntarily made without hope of benefit or reward, or as a product of duress; and that he was not acting under any mental or physical disabilities which prevented him from understanding his rights. The detective testified that when he advised Rogers of his rights through the use of a Miranda form and asked him to sign it, Rogers "said he wasn't going to sign any type of paperwork at this time." However, Rogers did not ask for an attorney or refuse to answer any questions after the form was read to him. He gave false information as to his name, address, place of birth and social security number. When Rogers professed ignorance concerning certain individuals whose names were found in a briefcase taken into evidence, the detective terminated the interview.

"The trial court's findings as to factual determinations...