Brockington v. State
Brockington v. State
Opinion of the Court
Brockington and Proctor were indicted, tried by a jury and convicted of possession of tools for the commission of a crime and criminal trespass.
1. Appellants contend that the trial court erred in overruling their motion to strike the testimony of two police officers relating to the comparison of footprints found on the ground leading from their truck to the scene of the attempted break-in with shoes worn by them because the testimony was rendered inadmissible as the result of an illegal arrest.
The arresting officer testified that the men were arrested under a municipal ordinance for the offense of public drunkenness. They were later charged with offenses for which they were convicted. Appellants argue the state’s failure to prove the ordinance at trial resulted in an invalid arrest under the holding in Shuman v. State, 146 Ga. App. 124 (245 SE2d 481) (1978) and that any evidence obtained as a result of the arrest was not admissible.
Appellants correctly argue that an arrest made under a municipal ordinance which was not proved at trial renders evidence seized pursuant to such an arrest inadmissable. Peoples v. State, 134 Ga. App. 820 (216 SE2d 604) (1975). In the present case, however, appellants’ only challenge is to the testimony of the officer’s visual observations of tracks on the ground and the type of sole on appellants’ shoes. There was no evidence of the officer coercing the men into allowing a comparison of their shoes to the tracks by making appellants place their shoes into the tracks as forbidden under the holding in Elder v. State, 143 Ga. 363 (85 SE 97) (1915). The testimony of the police officers as to observations they made near the scene of the crime does
2. Appellants also contend that the evidence was insufficient to support their convictions and that the trial court erred in denying their motions for a directed verdict of acquittal. They argue that the only evidence connecting them with the crimes was the footprints and the purely circumstantial nature of that evidence is insufficient to rule out every rational hypothesis save their guilt.
Footprints alone are not usually sufficient to authorize a conviction unless there is some peculiarity in the tracks to clearly identify them as belonging to the accused. Lindsey v. State, 9 Ga. App. 299 (70 SE 1125) (1911). In this case, there was a great deal of circumstantial evidence to connect the appellants to the crime. A police officer observed a red, stake-bodied truck containing the three defendants slowly driving past the hardware store shortly before the attempted break-in. After the attempt, tools covered with lime dust and matching the type of tools found in the truck and the occupations of the defendants were found at the scene. The truck containing two defendants was found parked directly behind the hardware store with two of the defendants in it. Three distinct and different sets of tracks were found leading from the truck to the store and two distinct and separate sets of tracks were found leading from the store to the truck where two of the defendants were found. A third set of distinct and different tracks were discovered leading in the direction in which the third defendant was found. The police officers testified that the soles of the shoes of each defendant matched the three sets of tracks found near the scene of the crime. The third defendant was found with grass all over his clothing. The manager of the hardware store testified that he heard noises at the back of the store as if someone was trying to break in, and after he yelled: "Get away from that door” he heard the sound of people running. He called the police and then went to the back door, opened it, and observed the red truck parked behind the store. A police officer testified that a pack of Camel unfiltered cigarettes was
Judgment affirmed.
070rehearing
On Motion for Rehearing.
In this case, the shoes were not seized for a physical comparison, but only the officer’s visual observations were admitted. There was no written motion to suppress filed prior to trial which is mandatory to suppress physical evidence. Peppers v. State, 144 Ga. App. 662 (242 SE2d 330) (1978); Watson v. State, 147 Ga. App. 847, 860 (250 SE2d 540) (1978). Even if the initial arrest is invalid, it is not error to fail to suppress those things to which a person has no reasonable expectation of privacy (i.e. handwriting, voice, facial characteristics). We believe
Motion for rehearing denied.
Reference
- Full Case Name
- BROCKINGTON Et Al. v. THE STATE
- Cited By
- 8 cases
- Status
- Published