Mitchell v. StateMitchell v. State
- Reporters:
- , ,
- Before:
- Benham
Indicted for aggravated assault with a deadly weapon, aggravated assault with intent to rape, armed robbery, and possession of a knife during the commission of a fеlony, appellant was acquitted of the armed robbery charge and convicted of the other three. He enumerates as error the denial of his motions tо suppress evidence seized in searches of his house and car and to suppress the victim’s identification testimony.
1. Appellant’s first argument in support of his motion tо sup
An arrest occurs only when the liberty of a citizen is restrained by physical force or show of authority. Bothwell v. State, 250 Ga. 573 (2) (300 SE2d 126) (1983). The officer who questioned appellant tеstified that such restraint did not exist until after the victim had come to the police station and identified appellant. Until then, the officer swore, appellant had bеen free to go and had been told that he was not under arrest. After that identification, the investigating officer had probable cause to arrest since the facts and circumstances within her knowledge, of which she had reasonably trustworthy information, were sufficient to warrant a prudent person to believe that appellant had committed the offenses. See Flowers v. State, 252 Ga. 476 (1A) (314 SE2d 206) (1984). Since the evidence here authorized the trial court to determine that there had been no illegal arrest, and the determination of a trial court in ruling on a motion to suppress will be upheld if supported by evidence (Voight v. State, 169 Ga. App. 653 (314 SE2d 487) (1984)), we find no error in the trial court’s denial of appellant’s motions on that ground.
2. After appellant had been placed under arrest, he executed a consent form permitting the search of his house. He now contends that the сonsent was void because he was coerced into signing it. A consent given while under arrest is not per se void as being coerced. See, e.g., Cantrell v. State, 237 Ga. 851 (230 SE2d 287) (1976). The testimony of the police officer who secured the consent form and the testimony of an officer who witnessed it were consistent on the issue of coercion. They both testified that appellant was cooperative and stated repeatedly that he had nothing to hide. “ ‘As the record in this case indicates without contradiction that appellant intelligently and voluntarily consented to the search of his [house] after being fully informed that he had a right to refuse the search, the trial court was authоrized to find that valid consent had been given.’ [Cit.] ” McShan v. State, 155 Ga. App. 518 (3) (271 SE2d 659) (1980).
3. Appellant’s car was also searched, yielding a knife which was identified by the victim as being similar to the knife used in the assault on her. Although the State attempted at trial and on appeal to justify that search as an inventory pursuant to impoundment of the car, the record does not supрort that argument. There was no evi
There does appear in the record, however, another basis for the trial court’s finding that the search of appellant’s car was legal. The arresting officer testified that she asked appellant for permission to search the car at the same time she asked for permission to search his house and that appellant consented to the searches and gave her his keys. That testimony, considered with the testimony of two other officers that appellant was consistently cooperative and repeatedly stated that he had nothing to hide, was sufficient to support a finding that appellant consented to the search of his car. There being evidence to support the trial court’s denial of the motion to suppress, this court will not disturb that decision. Voight, supra.
4. Appellant has also enumerated as error the trial court’s denial of his motion to suppress the victim’s identification testimony. The basis оf that motion was that the identification procedure used was so suggestive that the identification was irradicably tainted. We disagree.
The evidence showed that thе investigating officer brought the victim to the police station to participate in a one-on-one showup to which appellant had consented. Both the victim and the officer testified that the officer told the victim that she wanted her to look at someone they were questioning to see if that person was the onе who attacked her. Assuming that the procedure used was impermissibly suggestive by focusing the victim’s attention on appellant as a suspect, we must consider whether the suggestiveness produced a substantial likelihood of irreparable misidentification. Whitfield v. State, 176 Ga. App. 476 (336 SE2d 356) (1985). “ ‘The factors to be considered in evaluating the likelihood of misidentification inсlude the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.’ [Cit.]” Id. at 477.
The viсtim testified that she had an opportunity to see the features of appellant’s face for several minutes during the attack and to see his hands closely. Her attention was focused on the appellant since he was the only one present other than herself and his aggressive conduct brought him to her attention. Her prior description was generally accurate other than a mistake as to the color of appellant’s
Judgment affirmed.
Banke, C. J., and McMurray, P. J., concur.