Anthony Houston brings this appeal from his conviction of burglary, armed robbery, and two counts of rape. Houston was jointly indicted with Oliver Twist Surry for these offenses. Surry entered pleas of guilty and testified as a witness for the State. From the evidence admitted, the jury was authorized to find thаt Houston and Surry entered the home of L.F. and his family through a rear window. The defendant attacked Mr. F. with a gun and placed him on the floor, face down, and tied his hands. Mrs. F. had her hands and feet tied to the four bedposts and a pillow placed over her face. Their daughter was brought into the room and placed on the floor by her father. Then the father was taken to the hallway and tied to a washing machine and beaten about the head. The defendant asked him for “reefer” and “cocaine,” but the father told him he did not havе any. Houston and Surry spent approximately three hours in the house that evening. The mother was raped five times and the daughter was raped three times. The house was ransacked and various personalty taken, television sets, watches, jewelry, a typewritеr and a pistol.
A palm print was taken from the washing machine and compared with the prints of Anthony Houston. The police expert was of the opinion that the palm print taken from the washing machine was that of the defendant. The family was asked to view a рhotographic lineup and the father and daughter identified Houston’s photograph as one of the men who had burglarized their home and raped the mother and *336 daughter. Mrs. F. was unable to visually identify anyone as a pillow had been placed over her head.
An arrest warrant was issued for Houston and a search of the apartment where he was living revealed much of the property taken from the burglarized home. Houston was found hiding underneath a large pile of clothing in a closet. A physical lineup was held at thе police station and the father and daughter identified Houston as one of the individuals who had beaten the father and raped the mother and daughter. Mrs. F. was unable to visually identify Houston at the physical lineup, but after having the participants in the lineup speаk words said to her during the time she was being raped, Mrs. F. identified Houston as her attacker. Surry testified for the State and identified Houston as his accomplice that evening. The jury returned a verdict of guilty and Houston brings this appeal. Held:
1. The State offered evidence оf what it claimed to be two prior similar offenses. Appellant’s objection was overruled. On appeal, appellant argues “there was very little proof of identity of Appellant as the perpetrator . . . [and] [t]here was no physical proоf that Appellant committed the crimes alleged,” and such evidence did not show “intent or state of mind . . . motive” and “there was virtually no similarities and a large number of dissimilarities.”
“ ‘(B)efore evidence of independent crimes is admissible two conditions must be satisfied. First, there must bе evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter.’ ”
State v. Johnson,
Ms. A.R. testified she was living with her cousin on June 12, 1986, when she was awakened by intruders who еntered her bedroom through the window at 5:00 a.m. They tied her hands and feet, covered her head, and kept saying “not to make any noise, not to scream or else we’ll kill you.” She was raped three times by one man and one time by a second man. The men asked fоr money and “where is the cocaine, and where is the reefer and they kept saying we’re the klan and you all stay out of Stone Mountain. . . .” She identified the defendant as one of her rapists. In the incident charged in the instant case, Mr. F. had testified that they had asked him for “reefer” and “cocaine” and the daughter and wife heard the rapists ask for money and cocaine. Mr. F. said that defendant told him: “. . . I own Stone *337 Mountain, stay out of Stone Mountain. ...” Both the mother and daughter were told repeatedly throughout the episode to keep quite or they would be killed. When the burglars departed Ms. A.R.’s house, they took her television set, wrist watch, clock radio and car keys.
Ms. S.S. testified that on June 18, 1986, she was at her boyfriend’s house and three men with guns entered the house. She was tied up, blindfolded and gagged. She was raped repeatedly by each of the three men. They told her to keep her eyes closed and if she looked at them they “would blow [her] brains out.” She identified the appellant as one of her rapists. Her boyfriend was tied up and heard the men ask fоr “cocaine, cocaine, cocaine.” He also identified appellant as a participant. When the men left, they took a wide variety of personal items, including the boyfriend’s truck. A friend who was present at that time saw the three men enter the yard, with guns, and he attempted to run but was told: “move and you’re dead, honky.” He was blindfolded and gagged. His hands were tied behind him and he was struck many times on the head.
The admissibility of “other offense” evidence is a matter which lies within the sound discretion of the trial judge.
Harris v. State,
2. It is enumerated as error that the district attorney misled the court in his recital of “facts” of alleged similar transactions, thereby gaining admission of other offenses which placed the appellant’s character in evidence. The district attorney had filed notice of intent оf the State to introduce evidence of prior similar transactions required by the Uniform Superior Court Rules. A hearing was held just prior to trial and the district attorney stated in his place what he expected the evidence to show happened in the instant case, and what he expected the evidence would show in the two prior incidents. This court, in
Hall v. State,
3. A Brady motion was filed by appellant for all “exculpatory, impeaching and mitigating” information in the District Attorney’s file. Appellant’s attorney states he was not permitted to examine the district attorney’s file nor was an in camera inspection made by the trial court. He contends that “[d]uring the trial of the case, it was revealed that [Mrs. F.] was unable to identify Appellant by his appearance in a physical lineup ... or from a photographic disрlay shown her only two days after the incident.”
Black defines “exculpatory” as “clearing or tending to clear from alleged fault or guilt; excusing.” Black’s Law Dictionary (4th ed.) The fact that Mrs. F. was unable to visually identify the appellant in a photo or physical lineup, before identifying him in the physical lineup by his voice, is not “clearing or tending to clear from alleged fault or guilt; [or] excusing.” In other words, the mere failure of a rape victim to identify the actor does not clear that party from guilt particularly when she identifies the actor by another feature. This is true in this instance when the man is identified by another rape victim who was present during the rape of her mother, and the father who identified the appellant, and the accused’s participant who identified appellant аs the guilty party. Neither can this information be “impeaching” or “mitigating” under the facts of this case. Further, there is no evidence the State made any effort to intentionally suppress the evidence. To the contrary, in the opening statement it was shown that Mrs. F. could not identify anyone in either the photographic lineup or the physical lineup. No objection was made at that time nor was any objection made during the testimony of Mrs. F. when she stated exactly what the district attorney had said she would state. Following her daughter’s testimony and excusal from the stand, counsel then objected to the earlier testimony of Mrs. F. on the basis that it was “Brady material” which he had never been provided in response to his motion.
“There is no general constitutional right to discovery in a criminal case, and
Brady[ v. Maryland,
4. A palm print was lifted from the washing machine in the burglarized home and was compared to appellant’s fingerprint card on file with the police. Bеcause of the match of the palm print with appellant’s prints, a photographic lineup was prepared for the victims. Mr. F. and his daughter selected appellant’s photograph as one of the parties who had burglarized their home and raрed the mother and daughter. An arrest warrant was issued for appellant and after his apprehension he was placed in a physical lineup where he was identified by Mr. F. and his daughter, and after speaking words uttered during the commission of these offenses, Mrs. F. identified appellant as her rapist. Appellant enumerates as error the failure of the State to provide him with counsel at his physical lineup.
The United States Supreme Court has held clearly “that the right to counsel . . . attaches only to corporeal identifications conducted ‘at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’
5. Appellant enumerates as error the trial court’s denial of his motion for mistrial for argument made during an opening statement to the jury that he expected the evidence to show “defendant was asking for cocaine, said, where is the cocaine. . . .” Counsel objected and moved for a mistrial on the basis that he “has not been charged with any offense involving drugs” in this case. The trial court ruled that the State “has a right to show what happened on that occurrence . . . and if he mentioned cocaine, then [the State] has a right to refer to it also.”
The court clearly invoked the res gestae rule (OCGA § 24-3-3) that “[t]he state is entitled to inform the jury of all the circumstances surrounding the commission of the crime or crimes charged and we find no error in admitting this evidence as part of the res gestae even though it may have incidentally placed the defendant’s character in evidence.”
Chambers v. State,
Judgment affirmed.