Whitlock v. State, s. 46652-46662

• Decision Date: 08 October 1971
• Docket Number: No. 1,Nos. 46652-46662,s. 46652-46662,1
• Citation: 185 S.E.2d 90,124 Ga.App. 599
• Parties: Henry WHITLOCK v. The STATE (eleven cases)
• Court: Georgia Court of Appeals

Page 90

185 S.E.2d 90

124 Ga.App. 599

Henry WHITLOCK v. The STATE (eleven cases).

Nos. 46652-46662.

Court of Appeals of Georgia, Division No. 1.

Oct. 8, 1971.

Rehearing Denied Oct. 15, 1971.

Syllabus by the Court

1. A nunc pro tunc certificate of immediate review is without efficacy to support an appeal.

2. There is no statute or rule of practice allowing a defendant in a criminal case pre-trial discovery and inspection of evidence in possession of the State.

3. (a) Since the warrantless arrest of defendant was based on probable cause and therefore lawful, the arrest itself affords no basis for the suppression of evidence obtained by a search and seizure.

(b) The defendant by abandoning his automobile after being pursued by police lost his constitutional rights against an unreasonable search and seizure.

(c) The warrantless search and seizure of defendant's automobile was constitutionally permissible.

The defendant, who is pending trial for murder, filed eleven notices of appeal from a corresponding number of orders denying pre-trial motions for discovery and suppression of evidence obtained from claimed unlawful search and seizure.

The trial judge within ten days from the entry thereof certified the denials for immediate review in Cases Nos. 46656, 46657, 46658, 46660, 46661 and 46662. Certificates from the trial judge certifying Cases Nos. 46652, 46653, 46654, 46655 and 46659 for immediate review were signed and dated more than six months after the entry of the judgments nunc pro tunc to a time within ten days of entry of the respective judgment.

A summary of the relevant facts adduced at the hearing on the suppression of evidence issue shows that at about 12:30 a.m., on January 17, 1971, a city of Decatur detective heard the voice of Lt. Billy Cowart (a Decatur policeman and the victim of the alleged crime) over the police radio network, that he, Cowart, was pursuing a 1954 Ford automobile. Shortly thereafter he heard Cowart state that he was located at Boulevard and Second Avenue. Several minutes later he heard the victim ask that another police car proceed to this locality. The detective immediately went to the vicinity and found Cowart slumped over the steering wheel of his patrol car. He had been shot in the head causing death. Prior to this detective's arrival on the scene, another witness, while driving by Second Avenue and Boulevard, observed an orange looking car parked in front of a police car. This was about 12:30 or 12:45 a.m. After passing the two cars the orange colored car passed this witness at a high rate of speed and drove through two red lights at intersections. Later this same witness came back to this location and advised the police who were then present of his observation of the orange colored car and described it as one 'jacked up all the way around and that it looked like a 1954 Ford.' The Atlanta police were alerted via police radio to look for a 1954 Ford of this description. An Atlanta police officer, in the early morning hours on this same date, observed a car fitting this description being driven by an individual later identified as the defendant. He gave chase and was joined in pursuit by other police cars. The defendant was successful in avoiding the pursuing officers until he collided with a police rescue truck. Defendant then jumped out of the car and ran. He was taken into custody approximately two blocks from where he left his automobile. Another Atlanta detective who was award of the alleged murder and the police lookout for the described automobile arrived at the scene where the defendant's car had collided with the police vehicle. He testified that at this time the defendant had not been apprehended when he first observed the automobile. He looked inside the automobile through the window and saw a revolver on the floorboard on the driver's side of the car and a checkbook belonging to the defendant lying beside the 38 caliber revolver. He seized both items. He then had the vehicle towed to the Atlanta Police Department's impound lot. No difficulty was experienced in moving it. Dlater at about daylight this witness again searched the interior of the automobile and found several 38 caliber bullets on the floorboard of the car. The arrest, and the search and the seizure of the items of evidence found in the car, were conducted without warrants.

Garland & Garland, Reuben A. Garland, Atlanta, for appellant.

Richard Bell, Dist. Atty., Dennis F. Jones, Decatur, for appellee.

BELL, Chief Judge.

1. The appeals in Cases Nos. 46652, 46653, 46654, 46655 and 46659 must be dismissed. The orders in these cases are denials of motions to require the State to furnish addresses of witnesses and discovery and inspection of particular evidence in possession of the State and to seek an order to permit the defendant's attorney to be present at all future examinations by the State of evidence now in its possession. None of these are appealable judgments. The nunc pro tunc certificates for immediate review were dated long after the expiration of the ten-day period required by the Appellate Practice Act, as amended. Ga.L.1968, pp. 1072, 1073 (Code Ann. § 6-701(a)2). A nunc pro tunc entry of a certificate for immediate review cannot revive a right of appeal which has expired. Baxter v. Long, 122 Ga.App. 500(4), 177 S.E.2d 712. A nunc pro tunc certificate of immediate review is without efficacy to support an appeal. Cunningham v. Cansler, 123 Ga.App. 614, 615, 181 S.E.2d 922.

2. Cases Nos. 46656, 46658, 46660 and 46662. The orders in these cases all are denials of motions for discovery and inspection of evidence possessed by the State. There was no error. The Supreme Court has repeatedly held that in Georgia there is no statute, nor any rule of practice allowing pre-trial discovery and inspection of evidence in possession of the State by the accused or his counsel. Blevins v. State, 220 Ga. 720(2), 141 S.E.2d 426; Cummings v. State, 226 Ga. 46(1), 172 S.E.2d 395.

3. Cases Nos. 46657 and 46661. Under the facts of this case there are several grounds legally justifying the search and seizure.

(a) It is claimed that the search and seizure of the automobile was the fruit of an unlawful arrest. This contention has no merit as the arresting officers had probable cause to make the arrest. The evidence that the victim was pursuing a 1954 Ford, the observation of the witness of the two cars parked in the same vicinity where the victim was later found, coupled with the departure of the orange colored car at a high rate of speed and the...