Wimberly v. State, 29379
| Decision Date | 26 November 1974 |
| Docket Number | No. 29379,29379 |
| Citation | 211 S.E.2d 281,233 Ga. 386 |
| Parties | Clarence WIMBERLY v. The STATE. |
| Court | Georgia Supreme Court |
R. P. Herndon, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Richard E. Hicks, Asst. Dist. Atty., Atlanta, for appellee.
Syllabus Opinion by the Court
The appeal in this case results from a consolidated trial in which the defendant was convicted on four charges of rape and two charges of armed robbery. A motion for new trial was filed and overruled and the present appeal filed.
Each rape occurred in the early morning hours when the victim was either en route to, or waiting at a bus stop. In each case the assailant asked a question similar to
'What time does the bus come?' In each case the assailant exhibited a pistol, forced the victim into a nearby wooded area, covered her eyes, removed or forced the victim to remove all clothing from the waist down, committed the rape and required the victim to count to a given number before removing the covering from her eyes.
The defendant was arrested when another alleged victim, who did not testify on this trial, recognized him in a shopping center and called the police. Prior to formal charges being made against the defendant in any of these cases, he was picked out of lineups by two of the four victims testifying in this case, his picture was selected from a group of six pictures exhibited to one victim and he was identified from a single picture exhibited to a fourth victim. The fourth victim had previously been shown photographs of other suspects.
1. The contention of the defendant that placing him in a lineup without counsel being present requires that the convictions be set aside is without merit. The defendant was not placed in any lineup after indictment. See Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411; White v. State, 231 Ga. 290, 294, 201 S.E.2d 436.
2. Where, as in this case, the victim who had identified the defendant from one picture had previously been shown other pictures for identification purposes and such witness' testimony showed without dispute that her identification of the defendant had an origin independent of the photograph of the defendant exhibited to her by police, the refusal to strike the victim's testimony was not error. Compare Mathis v. State, 231 Ga. 401(6), 202 S.E.2d 73.
3. ...
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Jackson v. State
...Thus, the jury was authorized to find that Orie was present and that Jackson conveyed his threats to her. See Wimberly v. State, 233 Ga. 386, 387(5), 211 S.E.2d 281 (1974) (jury must reconcile conflicts between testimony of defendant and witnesses for the state). Finally, with regard to his......
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Glispie v. State, A15A1281.
...519 S.E.2d 463 (1999).31 See OCGA § 16–13–30(b).32 See OCGA § 16–10–24(a).33 (Citations and punctuation omitted.) Wimberly v. State, 233 Ga. 386, 387(3), 211 S.E.2d 281 (1974).34 See id.; OCGA § 40–6–395(a).35 (Punctuation and footnotes omitted.) Jones v. State, 272 Ga. 900, 901–902(2), 537......
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Tate v. State
...for such identification, the defendant's physical appearance, clothes, or voice, is not to be decided by this court. Wimberly v. State, 233 Ga. 386(3), 211 S.E.2d 281, 283. "Accordingly, the contention that the testimony of the victim who first recognized the defendant in a lineup from his ......
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Gunsby v. State, A00A2418.
...or a law-abiding and trustworthy concerned citizen, or even a declarant against penal interest). 12. See, e.g., Wimberly v. State, 233 Ga. 386, 387(4), 211 S.E.2d 281 (1974) (warrantless arrest for rape and armed robbery was not illegal but based upon probable cause, where victim recognized......