Williams v. State, 55997

• Decision Date: 03 July 1978
• Docket Number: No. 55997,55997
• Citation: 246 S.E.2d 729,146 Ga.App. 543
• Parties: WILLIAMS v. The STATE.
• Court: Georgia Court of Appeals

Page 729

246 S.E.2d 729

146 Ga.App. 543

WILLIAMS v. The STATE.

No. 55997.

Court of Appeals of Georgia.

Submitted June 8, 1978.

Decided July 3, 1978.

Ashman & Zipperer, Alexander L. Zipperer, III, Savannah, for appellant.

Andrew J. Ryan, III, Dist. Atty., Joseph D. Newman, Robert M. Hitch, III, Asst. Dist. Attys., for appellee.

McMURRAY, Judge.

Defendant was indicted separately along with another for the offenses of rape and burglary occurring on the same day. He was convicted as to both offenses, and sentenced to serve 10 years on the burglary conviction to run consecutively to certain sentences the defendant was then serving; and 20 years on the rape charge to run concurrently with the sentence imposed on the burglary conviction but to run consecutively with the other sentences he was then serving. A motion for new trial was filed and denied, and defendant appeals. Held:

1. Defendant's first enumeration of error is that the court erred in refusing to sustain his objection to evidence, or to grant his motion for mistrial, or to instruct the jury to disregard the evidence by a police officer regarding his testimony in obtaining names and photographs from undisclosed sources which were shown to the victim for identification purposes.

The in-court identification of the defendant by the victim and her identification of the photograph of the defendant to the police detective from the numerous photographs (mug books, etc.) presented to her was in no way violative of the defendant's due process rights. See Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401. See also Sherwin v. State, 234 Ga. 592, 216 S.E.2d 810; Dodd v. State, 236 Ga. 572, 574, 224 S.E.2d 408; Bradshaw v. State, 145 Ga.App. 664, 244 S.E.2d 600. Nor was there any objection to the photograph when it was offered in evidence.

As a part of this enumeration of error counsel for the defendant also argues that the testimony in regard to the photographs was shown to have prejudicial influence on the jury by reason of the request made by the foreman of the jury during deliberation as to the information leading to the arrest of the defendant and also as to how the police arrived at its identification after the victim saw the pictures. The trial court properly answered the foreman's question by instructing him and the jury as follows: "I'm not allowed to comment on that, even if I knew. I'm not sure I know . . ., but you have to take the case on the basis of the evidence that you have before you, and there's no way we can reopen it again and put that in, even if we wanted to, because the case is over. I can't comment on that." As to the other question asked by the foreman as to whether or not there was any evidence connecting the stolen items directly to the defendant, the court also properly instructed the foreman and the jury: "Well, that's what you'll have to remember from the evidence," and that under the law as far as burglary is concerned the state has to prove not all of the stolen articles but any of them or any part were taken from the house by the defendant "or that he was a party to the taking of these items." As to the curiosity of the jury as to the police procedure with reference to how they arrived at the identification after the victim saw the photographs, the trial court properly instructed the jury: "I can't comment on that." See Young v. State, 131 Ga.App. 553, 555-556(6), 206 S.E.2d 536. See also Sanford v. State, 129 Ga.App. 337(3), 199 S.E.2d 560.

2. In the discussion with the jury noted above, the trial court did not err in repeating its instruction on the definition of burglary without request for such instruction by the jury. It is the duty of the...