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Lawskills.com Georgia Caselaw
CREAMER v. THE STATE.
27497.
Armed robbery; motor vehicle theft. Fulton Superior Court. Before Judge Tidwell.
NICHOLS, Justice.
1. The trial court did not err in refusing to suppress in-court identification because of identification made prior to trial.
2. Evidence of a "mug shot" of the defendant or evidence that the witness has seen the defendant on trial elsewhere does not inject his character into evidence.
3. Evidence of a serial number of a motor vehicle given orally does not make such fact hearsay evidence.
4. The giving of a re-charge to the jury as to one issue in the case does not require a re-charge in toto.
5. The evidence supported the verdict of motor vehicle theft.
The defendant was indicted, tried and convicted of armed robbery and motor vehicle theft. The appeal is from the adverse verdicts and sentences.
The owner of a 1970 Ford automobile testified as to its serial number, its value and that on November 17, 1970. He parked the vehicle in front of a motel in Fulton County, Georgia; that the next morning the car had been stolen; that he gave no one permission to drive it; and that he particularly did not give the defendant permission to drive it. There was also evidence adduced that a month later at approximately three o'clock in the morning Officer Gunlach, an accident investigator for the City of Atlanta Police Department, received a wreck call, which involved a one vehicle collision; that the only person around such car was the defendant standing alone by the wreck; that the defendant stated he was not injured and then produced a .38 caliber pistol and instructed Officer Gunlach to do exactly as he was told or he would be shot; that the defendant retrieved a suitcase, handed it to the officer and directed that he put it in the patrol car, having previously ordered the officer to hand him his pistol; that the defendant then obtained a can of lighter fluid from the wrecked vehicle and poured the same on the inside of such automobile, attempting to set it afire; however, such attempt was unsuccessful; that he then, while holding the officer at gunpoint, directed the officer to return to the patrol car and get some gasoline; that for some minutes they rode around the downtown area of Atlanta looking for a service station where gasoline could be purchased; that during such time the defendant told of having been in and out of jail and that he did not intend to go back to prison; that he was an ex-marine and an expert shot; that after gasoline was obtained, they returned to the scene of the wrecked automobile; a wrecker and another police car were in the process of removing the vehicle from the expressway; that the defendant then stated that he intended to burn the automobile if he had to shoot the officer and every other police officer who tried to stop him; that the officer then drove to the wrecker service lot to await the arrival of the wrecked vehicle; that when the wrecked vehicle reached the service lot the officer called the wrecker driver over to the patrol car, explained that the defendant was holding him at gunpoint and that the defendant intended to burn the automobile; that the wrecker
driver requested and got permission to unhook the wrecker before the automobile was burned, which he did and then used his radio to summon police assistance; that at the defendant's direction the officer placed the gasoline in the car and while the defendant was looking inside the rear door (apparently to determine if anything was left in the car) threw a lighted piece of cardboard into the car, attempted to slam the car door on the defendant and escaped as the car exploded; that the officer then took cover under another vehicle and at this time the defendant drove off in the patrol car which contained the officer's personal belongings as well as miscellaneous police equipment; that at this point the officer put out a lookout for the defendant in which he described him by approximate age, height, hair color and style, weight, build and clothing; and that the wrecked vehicle had the same serial number as the one stolen the previous month. The police vehicle was later recovered, as well as some, but not all, of officer Gunlach's personal items. During the months that followed, Officer Gunlach, on more than one occasion picked the defendant's picture from a series of photographs; that the picture selected by the officer each time was not the same photograph and he never selected a photograph of anyone else as that of his abductor. Other evidence necessary to consideration of the case is set forth in the opinion.
The enumerations of error complain that the evidence did not support the verdicts, that in-court identification should have been suppressed, that the defendant's character was impermissibly placed in issue, that a motion for a directed verdict of acquittal as to the motor vehicle theft indictment should have been granted, that hearsay testimony was illegally admitted, and that a re-charge to the jury was erroneous.
1. The first contention to be dealt with is that the in-court identification should be excluded because of prior identification which violated the defendant's rights under the sixth amendment to the United States Constitution.
As to the identification by the witness Tomascheschi (the wrecker driver), the record shows that a line-up was conducted which included a total of six or seven persons and while the defendant was represented by counsel. It also shows that pictures, including one of the defendant, were shown to the witness after indictment and before the above referred to line-up. Under the decision in Kirby v. Illinois, 406 U. S. 682 (92 SC 1877, 32 LE2d 411) the exhibition of the pictures to the witness would not work a per se exclusion of the identification. The witness testified in great detail as to his opportunity to view the defendant on the night of their original confrontation and was thoroughly cross examined by defense counsel. The State offered in evidence the group of pictures shown to the witness but, upon objection by the defendant to their introduction, were withdrawn, thereby precluding any decision as to whether they were suggestive or otherwise an abuse of identification procedures. The trial court did not err in refusing to suppress the testimony of Tomascheschi.
As to the testimony of Officer Gunlach. Under the Kirby case, supra, the exhibition of the photographs to this officer prior to any arrest or charges having been made did not violate the confrontation rule laid down in United States v. Wade, 388 U. S. 218 (87 SC 1926, 18 LE2d 1149), and the manner of such display did not abuse identification procedures. The confrontation which took place at the time the defendant was placed under arrest having come after the officer had twice, without hesitation, picked his picture as that of his abductor, could not be deemed as abusing the identification process.
Accordingly, the enumeration of error complaining of the refusal to suppress this identification evidence shows no error.
2. Evidence was admitted over objection that a witness had seen the defendant in court in Tennessee and that a photograph which was introduced in evidence was taken on a date near that when he saw the defendant in court and correctly represented his appearance at such time. In support of this contention the defendant cites Nesbit v. State, 125 Ga. 51 (54 SE 195); and Henderson v. State, 209 Ga. 72 (70 SE2d 713). The Nesbit case involves evidence of the defendant's criminal conduct at another time from the offense for which he was on trial. The Henderson case involves admissions by the defendant of other crimes while under arrest. Neither case is applicable here.
The admission in evidence of a "mug shot" of the defendant does not inject his character into evidence ( Tanner v. State, 228 Ga. 829, 832 (188 SE2d 512)), nor does the mere presence of the defendant on trial in some other court without more inject his character into evidence ( Cherry v. State, 220 Ga. 695 (141 SE2d 412)). This enumeration of error is without merit.
3. The driver of the wrecker who pulled the automobile from the expressway to the storage lot where it was burned testified that he completed the impound ticket on the automobile after it was burned. He was then asked the serial number of the car and responded by orally giving such information. After the witness had been excused, the defendant made a motion to exclude such testimony as being hearsay.
While counsel for the defendant in his objection stated that the witness read such serial number from a paper, this was not shown by the record and although the witness was subjected to a thorough and sifting cross examination, this matter was not touched upon by such cross examination. Accordingly, the contention that such testimony was hearsay is not supported by the record.
However, since the witness testified that he made the impound ticket, such testimony would have been from a memorandum made by him and would not have been subject to the objection made.
4. On re-charge to the jury the court instructed the jury with reference to the elements of armed robbery. The contention made in the sixth enumeration of error is that the trial court did not re-charge that such elements must be proved beyond a reasonable doubt, and emphasized the recharged portion of the charge.
There is no contention that the trial court in the original charge, or in the additional charge given in response to a request by the jury after it had begun its deliberations, instructed the jury contrary to law. As was held in Waldrop v. State, 221 Ga. 319 (8) (144 SE2d 372) dissents (in other grounds), it is not necessary on a re-charge to cover the subject in toto. The subject of reasonable doubt was fully covered in the original instruction and it was not necessary to re-cover this same ground upon the re-charge. No error is shown by this enumeration of error.
5. The verdict was amply supported by the evidence and the trial court did not err in overruling the defendant's motion for a directed verdict as to motor vehicle theft.
Judgment affirmed. All the Justices concur.
Lewis R. Slaton, District Attorney, Joel M. Feldman, William M. Weller, Morris H. Rosenberg, for appellee.
S. Richard Rubin, for appellant.
ARGUED OCTOBER 11, 1972 -- DECIDED NOVEMBER 9, 1972.
Friday May 22 15:28 EDT


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