Summerville v. State

• Decision Date: 05 November 1970
• Docket Number: No. 26029,26029
• Citation: 226 Ga. 854,178 S.E.2d 162
• Parties: James Leon SUMMERVILLE et al. v. The STATE.
• Court: Georgia Supreme Court

Page 162

178 S.E.2d 162

226 Ga. 854

James Leon SUMMERVILLE et al. v. The STATE.

No. 26029.

Supreme Court of Georgia.

Nov. 5, 1970.

Syllabus by the Court

1. The factual inaccuracies in the affidavit complained of by the appellant do not destroy the otherwise adequate showing of probable cause because they are of peripheral relevance and, not being the personal observations of the affiant, they do not reflect on his credibility.

2. The holding of a line-up with substitute counsel did not violate appellant's constitutional rights where a bona fide attempt was made to contact his retained counsel, and where the presence of substitute counsel eliminated the hazards which make the line-up a critical stage requiring the presence of retained counsel.

3. It was not error to submit the issue of sentence to the same jury which found the appellants guilty.

4. The verdict are supported by the evidence.

Hester & Hester, Frank B. Hester, Richard M. Hester, Atlanta, for appellants.

Lewis R. Slation, Dist. Atty., Carter Goode, Tony H. Hight, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Charles B. Merrill, Jr., Deputy Asst. Atty. Gen., Atlanta, for appellee.

ALMAND, Chief Justice.

The appellants were jointly indicted, tried and convicted, under two indictments. One charged them with taking a motor vehicle and a named sum of money, the property of Big Apple Super Markets, by intimidation and by use of a pistol, on March 19, 1970. The other indictment charged them with taking a named sum of money, the property of Big Apple Super Market, by intimidation and use of a pistol, on March 17, 1970.

Their joint motions for a new trial were overruled and their joint appeal is here for review. Error is enumerated on: (1) overruling motions to suppress evidence; (2) allowing, over objection, the testimony of Detective T. J. Smith, concerning lineup identifications made by State witnesses; and (3) submitting to one jury the issue of innocence or guilt as well as the issue of punishment.

1. Motion to suppress evidence: Defendants Summerville and Williams filed motions to suppress evidence obtained by an alleged illegal search. The grounds of the motion were that a search warrant was issued by the Judge of Polk Superior Court based on an affidavit of Bobby Burch, Chief of Police of Rockmart, Georgia, and that the alleged facts were actually false and did not show probable cause, in violation of their constitutional rights under stated provisions of the Constitutions of the United States and the State of Georgia prohibiting unlawful search and seizure.

Two search warrants were issued on March 22, both based on affidavits of Bobby Burch. One was for the search of the premises of Truman H. Williams, Jones Avenue, Rockmart, Ga., 'a duplex apartment'. The other was for the search of the premises of James Leon 'Joe' Summerville, located at 302 Hampton Street, Rockmart, Georgia. The affidavits recited that affiant had reasonable cause to believe that a named person had committed the offense of armed robbery and had in his possession tangible evidence comprised of 'money and currency money wrappers, American Express blank money wrappers, bearing numbers according to the list attached American Express blank money orders with red rings * * * and a .38 caliber revolver bearing serial No. 733911.' The probable cause was stated as follows:

'Charles W. Brooks, and his wife and family, all of 1832 Kimberly Road, SW, Atlanta, Ga. have positively identified said person as being one of three perpetrators of an armed robbery committed on March 17, 1970 against said C. W. Brooks and the Big Apple Food Store located at 2581 Piedmont Rd., NE, Atlanta of which Mr. Brooks is manager. Identification of each of said three persons was made from Police photographs and drivers license photos. Identification was positive by Mr. Brooks, who was an eye-witness and the victim of said armed robbery.

'Affiant received the above information from Detective T. J. Smith, of the Atlanta Police Department Robbery Squad, who received same from Charles W. Brooks. Detective Smith attested to the reliability of said Brooks, and of his truthfulness and veracity to affiant.

'All the above named items of tangible evidence are the fruits and instrumentalities of said Armed Robbery and are believed to be in the possession of either James Leon 'Joe' Summerville, Truman H. Williams, or Danny Millican, or any of them, at the residence of one or more of said persons, they being the three perpetrators identified by Brooks.'

The evidence which the defendants sought to suppress consisted of a pistol, a red, white and blue ski mask, a black ski mask with yellow eyes and white mouth, and a pillow containing unidentified money.

On the hearing of the motion to suppress, T. J. Smith, a detective of the Atlanta Police Department, testified that he investigated the reports of the robberies of the two Big Apple Stores. He obtained pictures of the three defendants, exhibited them to C. W. Brooks, the Manager of the Jamestown Big Apple Store, who identified Millican and Summerville as being two of the three who robbed the store. Smith conveyed this fact to Chief Burch of the Rockmart Police force and upon this information Burch made the affidavit. Burch testified that the facts given by him at the time he swore to the affidavit were true so far as he was concerned.

The grounds upon which the motion to suppress was based were that certain facts and statements in Burch's affidavits were not true, viz, the statement therein that, 'Charles W. Brooks, and his wife and family, all of 1832 Kimberly Road, S.W., Atlanta, Ga., have positively identified said person as being one of three perpetrators of an armed robbery committed on March 17, 1970, against said C. W. Brooks and the Big Apple Store located at 2581 Piedmont Rd., N.E., Atlanta, of which Mr. Brooks is Manager.'

We are of the opinion that the ruling in Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, sustains the ruling of the trial court in overruling the motion to suppress. The codurt there held: 'Petitioner attacks the validity of the search warrant. This Court has never passed directly on the extent to which a court may permit such examination when the search warrant is valid on its face and when the allegations of the underlying affidavit establish 'probable cause'; however, assuming, for the purpose of this decision, that such attack may be made, we are of the opinion that the search warrant here is valid. Petitioner contends that probable cause did not exist because the...