Clay was convicted of armed robbery, aggravated sodomy, aggravated assault, false imprisonment, and possession of a knife during the commission of a crime. He appeals.
Viewed in favor of the verdict, the evidence was that on November 29, 1989, the victim, at the time 19 years of age, took her 14-month-old daughter to a laundromat for the purpose of doing laundry. Upon her arrival at the. laundromat, she was assisted by Clay, who helped her carry in the large box of clothes. She had never met Clay prior to this and had only recently arrived in Gwinnett County. Having arrived around 4:00 p.m., the victim completed her laundry around 5:00 p.m. At that time there was no one in the laundromat except the victim, Clay and the baby. Clay grabbed her, rammed her head into a dryer, pulled a knife and forced her to remove her clothing. When she did not do this quickly enough, Clay ripped her blouse, ripped her bra off, and fondled her breasts.
Clay then told her to turn around and when she refused, he slapped her across the face. Additionally, Clay grabbed her from behind, put the knife to her throat and said “admit you’re a slut.” At that point Clay told her that if he committed an act of oral sodomy upon her, he would let her go. Additionally, Clay told her that if she did not do what he wanted, he would kill her and the baby. Having completed the act of oral sodomy, Clay forced her to lie down on the floor and kicked her twice in the vaginal area. Clay then demanded her money, which she turned oyer to him. At all times during these events, the victim could see the knife. Also, periodically during the *267 encounter, Clay would run to the front of the laundromat, look out the window, and make sure that no one was in the area. Clay advised her to remain still and count to a certain number as he left the scene.
The victim ran to a store in the area, called police, and gave a description to officers. She said that the attacker was wearing blue pants, a shirt, a jacket, and a hat containing the word “woman” in a phrase. She further described him as having gray or black hair, a full beard, glasses and being about 40 years of age. Approximately five minutes after the attack, police took her to view a male in the area. Initially, from approximately 30 feet away, she indicated that he was the man. Upon getting closer, however, she stated that he was not. Shortly thereafter, police took her to see Clay, found about a half-mile from the laundromat. She did not hesitate in identifying Clay as her attacker. Clay was known to the officers since he frequented a local store and lunch counter where the officers ate. Because the description given by the victim fit Clay, Sergeant Eberhardt conducted the showup within 30 to 40 minutes after the assault. Because the sergeant was in an unmarked car not containing an enclosure for transporting prisoners, he requested a uniform unit. Officer Tinkey arrived and took custody of Clay. Clay consented to the search of his trailer and was transported there by Officer Tinkey. Sergeant Eberhardt and a lieutenant conducted the search, finding a dark blue hat bearing the following slogan, “I like my whiskey on ice, my women on fire.” Cash was found on the person of Clay as well as a pocketknife containing a blade “a fraction over three inches.” At the time of his arrest, Clay was wearing a different hat.
After the search, Officer Tinkey was directed to transport Clay to the station. At that point, Tinkey advised Clay concerning his
Miranda v. Arizona,
1. In his first enumeration Clay contends that the admission of his statement was improper because it was given after being induced by the hope of benefit. OCGA § 24-3-50.
Clay did not testify at the
Jackson v. Denno
hearing nor at the trial.
1
Although the cases relied upon by Clay, including
State v. Barber,
“For an officer to advise an accused that it is always best to tell the truth will not, without more, render a subsequent confession inadmissible under [OCGA § 24-3-50].”
Tyler v. State,
Officer Tinkey’s offer to assist Clay in finding the psychologist likewise does not constitute the hope of benefit prohibited by the statute.
Head v. State,
“When a trial judge has made a determination as to the voluntariness of a confession after a suppression hearing, such determination must be accepted by the appellate courts unless his decision is clearly erroneous.”
Gibbs v. State,
2. In his third enumeration, Clay contends he was denied a fair trial due to improper closing remarks by the prosecutor. While the record contains the objection made to the closing argument, the closing argument is not contained in the record. “Error must be shown affirmatively by the record, and not by mere recitations in a brief. [Cits.]”
Standridge v. State,
3. The remaining two errors, numbers 2 and 4, deal with the issue of merger of offenses and will be addressed together.
Clay argues that the offenses of aggravated assault and armed robbery merged as a matter of fact. OCGA § 16-1-6 (a). The indictment alleges that the armed robbery occurred “by use of an offensive weapon ... a knife,” while the aggravated assault count alleges that Clay made an assault upon the person of the victim “with a knife, a deadly weapon, by holding said weapon to the throat of said victim.” As reflected in the statement of facts above, the use of the knife was not only aimed at obtaining money from the victim, but also at intimidating and threatening her with regard to the other acts committed. Here, as in
Bales v. State,
“Likewise, the offense of possession of a firearm during the commission of a felony does not merge into the accompanying felony, i.e., armed robbery [and aggravated assault] so that the defendant can be convicted of both without statutory or constitutional prohibition.
Wiley v. State,
Judgment affirmed.