Thе defendant, John W. Lassiter, Jr., appeals his conviction for the offenses of burglary, aggravated assault, aggravated sodomy, rape, kidnapping with bodily injury, and possession of a firearm by a convicted felon.
On thе night of January 9, 1983, the female victim was spending the night with her boyfriend, Eddie Davis, who lived in the home of Thomas Palmer. Palmer’s house was on Fishcamp Road in Monroe County, Georgia. On the morning of January 10th, Palmer and Davis left for work whilе the victim remained in the house, sleeping. She was awakened by a noise at approximately 10:30 a.m. She saw the defendant come through the door to her bedroom with a gun in his hand and three knives in his belt. She pulled the bеdsheet over her head and was struck with the gun. He ordered her to commit an act of oral sodomy upon him while he pointed the weapon at her. Following that act, he had intercourse with her. She had spent thе night with her boyfriend, in his bedroom, and was undressed. She was told to dress and both departed in her car. The defendant took the money in her pocketbook, $7, and bought gas for the car. They rode around for several hours over middle Georgia and then turned off on a side road where she was again forced to have intercourse. Later, the defendant told her if she went to the police, he would kill her. He left the car and she drove away. She went to her home in Monticello and was taken to a hospital for treatment of a laceration in her scalp of over one inch in length. A rape kit examination was performed and the *339 vаginal smear was sent to the state crime lab, together with pubic hair, blood, and saliva samples from her boyfriend and the defendant. The first trial ended in a mistrial. This appeal is from the second trial which resulted in a cоnviction on all counts. Held:
1. The first trial ended with a mistrial following a determination that the jury was deadlocked. Defendant argues he did not consent to the mistrial and his plea of former jeopardy should have been sustained. We do not agree. “Retrial of a criminal defendant after a mistrial caused by the inability of the jury to reach a verdict does not constitute double jeopardy where there is manifest necessity for declaring the mistrial. [Cits.] Where the jury is hopelessly deadlocked, this constitutes manifest necessity for declaring a mistrial. [Cits.] The determination as to whether the jury is in fact hopelessly deadlocked is a matter ‘somewhat in the discretion’ of the trial court. [Cit.] ”
Glass v. State,
2. Defendant was first indicted upon a similar indictment and the mistrial was declared. He was reindicted, but that indictment was nol prossed. The present indictment was then returned with the addition of a recidivist count which cited three prior convictions for burglary, robbery by intimidation, and armed robbery. We find no fault with the procedure followed. Addition of the recidivist count is not an additional charge relating to a criminal offense but has reference only to a sentence authorized for a convicted defendant. OCGA § 17-10-7. To be sentenced as a recidivist, the defendant must be indicted as a recidivist.
Fore v. State,
3. The grant or denial of a motion for funds to employ an investí
*340
gator lies within the sound discretion of the trial judge and his findings will not be overturned on appeal in the absence of a showing of an аbuse of discretion.
Cunningham v. State,
4. The second rape, which was accomplished after inception of the kidnapping “is sufficient evidence of bodily injury to authorize the conviction of the accused for kidnapрing with bodily injury to the victim.”
Peek v. State,
5. The trial court is vested with broad discretionary powers in enforcement of the sequestration rule, which will not be controlled absent abuse of discretion.
Cobb v. State,
6. Defendant argues that the pre-triаl procedure followed by the state in his identification resulted in a substantial likelihood of irreparable misidentification and required suppression of in-court identification. The victim was shown a photo lineup аt police headquarters on the day following this event and identified the photograph of the defendant from six photographs. No suggestion was made that the photo of her attacker was in the group, or which photo she should select. Approximately two days later, she was shown the driver’s license photograph of the defendant and again identified it as the individual who attacked her.
In
Simmons v. United States,
The victim was “absolutely sure” of her identification. She had been within a few feet of the defendant for four to five hours, and her identification was based upon her recollection of the events of January 10. The trial court did not err in refusing to supprеss the victim’s in-court identification of the defendant.
7. Counsel for defendant moved to suppress “testimony of Leslie *341 Goodrum . . .’’on the grounds of relevancy, hearsay, violation of “all due process constitutional rights оf the defendant,” and that such testimony would place the defendant’s character in issue and “inflame the jury prejudicially against defendant.” The motion was denied. Defendant testified at trial that he did not know and had nevеr seen the victim before his first trial in June 1984. He was not in Monroe County on June 10, 1983.
Leslie Goodrum appeared as a witness for the state. He had known defendant Lassiter when they spent three months in the same jail cell. Lassitеr told him “he couldn’t be charged with rape, just raping her ... he tried to rape her but he didn’t rape her; that he went to her house that day where she was staying that night and went in there — he went in the house and that’s where he got the guns and the knives from. That night, he said something about he hit her or he slightly hit her. ... He couldn’t rape her at the time because she was struggling. And after all the struggling, that they just left the house and they rode for about three or four hours or something and thеn they stopped for the gas station. And said that he got out of the car to get gas and said she knew not to run because he knew that he would kill her.
“After he got the gas, they left the station. They went to a church yard. He tried to rape her out there also, again. . . .”
Goodrum’s testimony was not hearsay and it was relevant. No violation of due process or constitutional rights of defendant has been shown. Goodrum was not an agent of the stаte and
Miranda
warnings were not required.
Bethea v. State,
8. In criminal prosecution for raрe, evidence of the past sexual behavior of the complaining witness is not admissible unless it involves participation of the accused or supports an inference that the accused could havе reasonably believed the complaining witness consented to the conduct complained of in the indictment. OCGA § 24-2-3. In the instant case, the past sexual behavior of the victim did not involve the accused and his defеnse was not consent but that he was not involved in this incident and had never seen the complainant before.
Defendant contends he was improperly limited in his examinatiоn of his “scientific witnesses.” He presented three experts from the Georgia Crime Laboratory in an attempt to show that the pubic hair, blood, saliva and semen samples taken from the defendant did not connect him in any way to the victim. Similar samples did connect the victim to her boyfriend, but samples taken from the defendant were “inconsistent and inconclusive” and neither connected defendant with the victim nor ruled out any сonnection with the victim. The trial court ruled that since such evidence “could not have excluded the defendant” he would not permit the evidence showing that sperm was taken from the victim.
Georgia’s so-called “Rape Shield” law prevents evidence of prior sexual behavior of the victim unless it contributes to the guilt or innocence of the accused.
Parks v. State,
9. The trial court did not err in denial of the motion for a directed verdict of acquittal, and the motion for new trial. We find no merit to the enumerations alleging the general grounds.
10. We have examined the remaining enumerations and find no substantial merit to them.
Judgment affirmed.