MUNN v. STATE

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Docket Number

A93A0480.

Attorney(S)

J. Robert Joiner, for appellant. Lewis R. Slaton, District Attorney, Rebecca A. Keel, Assistant District Attorney, for appellee.

Judges

BIRDSONG, Presiding Judge.

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Smart Summary

Factual and Procedural Background

Lamar Munn was convicted in Fulton Superior Court of armed robbery, aggravated assault, and kidnapping. The appeal challenges various aspects of the trial proceedings and evidentiary rulings related to these convictions.

Legal Issues Presented

Whether the trial court erred by refusing to replace a juror who recognized the victim during trial after initially denying any acquaintance, and whether this denial impaired the appellant's use of peremptory challenges.
Whether the trial court erred in admitting evidence of a verdict from a previous trial as circumstantial evidence relating to appellant's identity.
Whether the trial court abused its discretion in finding the prior offenses sufficiently similar to the charged offenses to admit evidence under the Williams v. State standard.
Whether the admission of evidence regarding a prior armed robbery offense was improper due to the time lapse and similarity considerations.
Whether appellant's Sixth Amendment right to counsel was violated by a physical lineup conducted without his counsel present prior to indictment.

Arguments of the Parties

Appellant's Arguments

Claimed denial of the right to use peremptory challenges intelligently due to the juror’s belated recognition of the victim.
Asserted that admitting the verdict from a prior trial would diminish the jury's sense of responsibility and violate his right to a fair trial.
Contended that his Sixth Amendment right to counsel was violated because he was compelled to participate in a physical lineup without counsel present.

Appellee's Arguments

Maintained that the juror did not engage in misconduct and promptly disclosed her acquaintance once recognized, supporting the trial court’s refusal to replace her.
Argued the prior verdict was relevant circumstantial evidence of appellant’s identity and properly admitted under established evidentiary principles.
Asserted the physical lineup was conducted lawfully prior to indictment without prosecutor involvement, negating a Sixth Amendment violation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Stokes v. State, 204 Ga. App. 141 (418 S.E.2d 419)	Juror impartiality and voir dire standards	Compared to the juror’s conduct in this case to determine no abuse of discretion in refusing juror replacement.
Gainesville Radiology Group v. Hummel, 263 Ga. 91 (428 S.E.2d 786)	Juror conduct and presumption of prejudice	Supported the conclusion that no presumption of prejudice arose from the juror’s belated recognition.
McLamb v. State, 176 Ga. App. 727 (337 S.E.2d 360)	Trial court’s discretion in juror impartiality	Used to affirm the trial court’s discretion in assessing juror impartiality.
Poole v. State, 262 Ga. 668, 670 (424 S.E.2d 275)	Juror impartiality and abuse of discretion	Referenced in support of trial court’s decision on juror impartiality.
Jones v. State, 247 Ga. 268, 270 (275 S.E.2d 67)	Juror impartiality and discretion	Affirmed trial court’s discretion in juror matters.
Williams v. State, 261 Ga. 640, 643 (409 S.E.2d 649)	Admissibility of similar offenses for identity	Guided the court’s determination that prior offenses were sufficiently similar to admit evidence.
Boatright v. State, 192 Ga. App. 112, 116 (385 S.E.2d 298)	Evidence admissible if relevant under any legitimate theory	Supported admission of prior verdict as relevant circumstantial evidence.
Norman v. State, 197 Ga. App. 333, 337 (398 S.E.2d 395)	Evidence relevancy and admissibility	Reinforced the principle that evidence admissible under any theory should be admitted.
Maggard v. State, 259 Ga. 291 (380 S.E.2d 259)	Similarity of offenses for admissibility	Used for comparison of facts to support similarity of offenses.
Gilstrap v. State, 261 Ga. 798, 799 (410 S.E.2d 423)	Effect of time lapse on admissibility of prior offenses	Supported admission of prior offenses despite significant time lapse.
Cooper v. State, 173 Ga. App. 254 (325 S.E.2d 877)	Time lapse and admissibility	Compared to Gilstrap to analyze admissibility despite time lapse.
Moore v. Illinois, 434 U.S. 220, 226 (98 SC 458, 54 L.Ed.2d 424)	Sixth Amendment right to counsel at identification procedures	Distinguished because the lineup here was pre-indictment, thus no Sixth Amendment violation.
State v. Davis, 261 Ga. 225, 226 (404 S.E.2d 100)	Appellate review of trial court findings of fact	Accepted trial court’s findings on appellant’s opportunity to contact counsel.
Phillips v. State, 204 Ga. App. 698, 700 (420 S.E.2d 316)	No constitutional right to counsel at pre-indictment lineup	Supported the court’s conclusion that no Sixth Amendment violation occurred.
Campbell v. State, 206 Ga. App. 456 (426 S.E.2d 45)	Right to counsel at lineup procedures	Used to support the distinction regarding pre-indictment lineup.
Evans v. State, 201 Ga. App. 20, 26 (410 S.E.2d 146)	Right to counsel and lineup procedures	Referenced in support of no Sixth Amendment violation.
Wilson v. State, 181 Ga. App. 435, 436 (352 S.E.2d 618)	Lineup procedures and counsel presence	Compared to other cases to affirm no violation in this case.
Martin v. State, 193 Ga. App. 581, 583 (388 S.E.2d 420)	Admissibility of in-court identification after potentially tainted pretrial identification	Supported admission of victim’s in-court identification as having independent origin.
Brown v. State, 192 Ga. App. 187 (384 S.E.2d 254)	Independent origin of in-court identification	Reinforced the principle that in-court identification may be admitted despite pretrial issues.

Court's Reasoning and Analysis

The court analyzed the juror's conduct and found no misconduct or impropriety. The juror did not initially recognize the victim but promptly disclosed her prior limited acquaintance once realized, maintaining impartiality under voir dire. The court held no presumption of prejudice existed and affirmed the trial court’s discretion in refusing to replace the juror.

Regarding the admission of evidence from the prior trial, the court applied the principle that evidence admissible under any legitimate theory should be admitted. The prior verdict was relevant circumstantial evidence of appellant’s identity and was properly admitted. The court found the prior offenses sufficiently similar under the Williams v. State standard, considering factors such as modus operandi and the passage of time, which did not preclude admissibility.

On the Sixth Amendment issue, the court distinguished the instant case from Moore v. Illinois, noting the lineup occurred pre-indictment and without prosecutorial involvement, thus no constitutional violation arose. The trial court’s factual findings that appellant was informed and could have contacted counsel were accepted as not clearly erroneous. The victim’s in-court identification was independently reliable and admissible despite any potential pretrial identification issues.

Holding and Implications

Judgment affirmed.

The court upheld the convictions and sentences, finding no reversible error in the trial court’s rulings on juror impartiality, evidentiary admissibility of prior offenses, or the conduct of the pre-indictment lineup. This decision directly affects the parties by affirming the trial outcome. No new legal precedent was established beyond application of existing law and standards.

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MUNN v. THE STATE.

BIRDSONG, Presiding Judge.

Lamar Munn appeals his judgment of conviction of armed robbery, aggravated assault and kidnapping, and sentence. Held:

1. The jury was asked if they were related to or knew the named victim in any way, and none in the array responded affirmatively; the jury subsequently was selected. On the second day of trial a juror reported that although she had not known the victim's name, she recognized her when the victim entered the courtroom. The juror had worked with the symphony two or three years earlier and, although she had not spoken with the victim to arrange ticket sales, she had picked up blocks of symphony tickets from her. The juror had no other contact with and had not seen the victim since that event; the juror had not been to the Arts Center in two years. On voir dire the juror unequivocally maintained her ability to act objectively and to render a verdict based on the evidence and court instructions. The trial court declined appellant's request to replace the juror with the alternate juror (compare Stokes v. State, 204 Ga. App. 141 ( 418 S.E.2d 419)). Appellant makes no claim the juror should have been excused for cause, or that the juror deliberately withheld information regarding her acquaintance with the victim; however, appellant maintains he was denied his right to use peremptory challenges "intelligently." The juror did not engage in any form of jury misconduct. When she failed to respond to the initial question regarding knowledge of the victim, it was because she was unaware of such knowledge; when she subsequently discovered her prior passing acquaintanceship with the victim, she immediately reported it. Compare Gainesville Radiology Group v. Hummel, 263 Ga. 91 ( 428 S.E.2d 786).

No presumption of prejudice exists in these circumstances; no irregularity or impropriety is involved in this juror's conduct. Notwithstanding appellant's belated claim of impairment to exercise peremptory challenges intelligently, under the circumstances the trial court did not err. McLamb v. State, 176 Ga. App. 727 (3) ( 337 S.E.2d 360); cf. Poole v. State, 262 Ga. 668, 670 (2) ( 424 S.E.2d 275); Jones v. State, 247 Ga. 268, 270 (2b) ( 275 S.E.2d 67). The trial court did not abuse its discretion in determining the juror's impartiality. Cf. Jones, supra at 270-271 (2b).

2. Appellant asserts the trial court erred in allowing in evidence the verdict from a previous trial, as it would tend to diminish the jury's sense of responsibility as to its verdict and violate his fair trial right. These contentions are without merit. The documents in question (State's Exhibit 20) provided circumstantial evidence of appellant's prior commission of an offense of armed robbery, and were relevant to appellant's identity as the perpetrator of a similar transaction (see Williams v. State, 261 Ga. 640, 643 (2d) ( 409 S.E.2d 649)). "[I]f evidence is duly admissible under any legitimate theory, it should be admitted even though it does not qualify for admission under one or more other evidentiary theories . . . evidence should be admitted if it is admissible for any legitimate purpose." Boatright v. State, 192 Ga. App. 112, 116 (6) ( 385 S.E.2d 298). See Norman v. State, 197 Ga. App. 333, 337 (4) ( 398 S.E.2d 395). The trial court did not abuse its discretion in admitting State's Exhibit 20; Boatright, supra.

3. The trial court did not abuse its discretion in finding the two offenses similar within the meaning of Williams v. State, supra. Compare Maggard v. State, 259 Ga. 291 ( 380 S.E.2d 259). Both rapes involved appellant's approaching either a female stranger or a mere acquaintance in the early afternoon in a conspicuous (public) place, removing the victim to a relatively secluded spot by automobile, exiting the car on both occasions (in the prior case to get a knife; in the case at bar to raise the car hood) and employing either an approximately eight-inch kitchen knife or a long knife ("maybe" a kitchen knife) during the course of the rape in the prior case and the aggravated assault with intent to rape in the case at bar. Further, the passage of fourteen years from the date of the prior rape did not preclude the trial court from finding the two offenses sufficiently similar. Compare Gilstrap v. State, 261 Ga. 798, 799 (1b) ( 410 S.E.2d 423) with Cooper v. State, 173 Ga. App. 254, 255 ( 325 S.E.2d 877).

4. In the prior armed robbery in 1985, appellant approached a female stranger in the afternoon whose car had broken down, got into her automobile, pulled a "huge" knife (larger than a kitchen knife), and demanded the victim's money. He implicitly threatened the victim by stating that she had better not be lying to him as to whether she had more money, looked through her wallet, and jumped out of the car and discarded the wallet when the policeman who had been assisting her returned. In the case at bar, appellant approached the female stranger in the underground parking area, threatened her with an eight-inch kitchen knife, demanded her money (whereupon the victim gave her wallet to him), threatened the victim implicitly by stating that there had better be money in the wallet, dragged her to her car, searched her wallet, announced his desire to engage in sexual release, and forced the victim to drive to a secluded area where she escaped. The prior robbery was sufficiently similar under Williams, supra. Compare Maggard, supra. The six-year time lapse did not render the prior offense inadmissible. Compare Gilstrap, supra, with Cooper, supra.

5. On appeal, citing Moore v. Illinois, 434 U.S. 220, 226 ( 98 SC 458, 54 L.Ed.2d 424), appellant asserts a Sixth Amendment violation claiming he was denied the right to counsel by being compelled to be in a physical lineup without his counsel being present.

(a) Appellant does not argue or cite legal authority to establish that the physical lineup was conducted in an impermissible suggestive manner, or assert any other errors in the execution thereof; thus, such other issues have been abandoned. Court of Appeals Rule 15 (c) (2).

(b) The trial court found as fact that appellant was informed in advance of the time and place of the lineup, could make phone calls, and could have called his attorney as he knew who the attorney was. As these findings of disputed fact were not clearly erroneous, we accept them on appeal. See State v. Davis, 261 Ga. 225, 226 ( 404 S.E.2d 100).

(c) The physical lineup was conducted before appellant was indicted and before evidence was taken at a preliminary hearing; Moore, supra, is distinguishable as that identification occurred, without counsel, at the preliminary hearing. As a general rule, "[n]o federal constitutional right to counsel exists at a pre-indictment lineup." Phillips v. State, 204 Ga. App. 698, 700 (1) ( 420 S.E.2d 316); see Campbell v. State, 206 Ga. App. 456 (1a) ( 426 S.E.2d 45); Evans v. State, 201 Ga. App. 20, 26 (3) ( 410 S.E.2d 146). Assuming without deciding the prosecutor was aware a lineup would be conducted, the record reflects it was conducted by the police; there exists no evidence of the prosecutor's presence at or participation in any manner in the lineup. Nor does the record reveal the prosecutor contrived to delay the preliminary inquiry to enable the police to conduct a lineup to circumvent a vesting of appellant's right to counsel. Moreover, the record shows the police independently assumed responsibility for and conducted the lineup. It is contested whether appellant was allowed to assist in the selection of lineup participants. Under the circumstances, appellant's contention of denial of his right to counsel under the Sixth Amendment thereby necessitating suppression of the pretrial identification by the victim is without merit. Compare Campbell, supra; Phillips, supra; Evans, supra; and Wilson v. State, 181 Ga. App. 435, 436 (2) ( 352 S.E.2d 618) with McGee v. W. J., Jr., 632 F.2d 476 (5th Cir.) and McGee v. W. J., Jr., 625 F.2d 1206 (5th Cir.).

(d) The victim made an in-court identification of appellant. Even if taint had occurred in pretrial identification at the physical lineup, a witness' in-court identification may be admitted if it has "independent origin." Martin v. State, 193 Ga. App. 581, 583 (1) ( 388 S.E.2d 420); Brown v. State, 192 Ga. App. 187 (1) ( 384 S.E.2d 254). The victim had a substantial period of time in daylight hours to view her attacker and was within two or three feet of him in the car; she clearly and in detail recounted the sequence of events occurring during the attack; she maintained presence of mind to seize an opportunity to escape; and she expressed neither uncertainty nor qualification as to her in-court identification. The in-court identification was of "independent origin."

Judgment affirmed. Pope, C. J., and Andrews, J., concur.

DECIDED MAY 20, 1993.