Bradford v. State

Full title: BRADFORD v. THE STATE

Court: Court of Appeals of Georgia

Date published: Sep 23, 1968

164 S.E.2d 264 (Ga. Ct. App. 1968)

164 S.E.2d 264

Opinion

43715.

SUBMITTED JUNE 4, 1968.

DECIDED SEPTEMBER 23, 1968. REHEARING DENIED OCTOBER 8, 1968.

Obscene language by telephone to female. Oglethorpe Superior Court. Before Judge Williford.

Guy B. Scott, Jr., for appellant.

Clete D. Johnson, Solicitor General, Hudson Stula, Jim Hudson, for appellee.

1. The mere use of a defendant's voice as an identifying physical characteristic does not abridge Fifth Amendment rights.

2. Under the facts of this case, the warnings required by Miranda v. Arizona, 384 U.S. 436 ( 86 SC 1602, 16 L.Ed.2d 694, 10 ALR3d 974) were unnecessary.

SUBMITTED JUNE 4, 1968 — DECIDED SEPTEMBER 23, 1968 — REHEARING DENIED OCTOBER 8, 1968 — CERT. APPLIED FOR.

Defendant was convicted under Code Ann. § 26-6303 (Ga. L. 1963, pp. 455, 456) of using obscene language by telephone to a female. The evidence showed that after the victim had received several telephone calls of obscene nature, an electronic trap was connected with her telephone to apprehend the caller. On the night of March 30, 1967, the Oglethorpe County Sheriff, acting on a complaint from the victim, went to the victim's residence with a deputy. The particular call in question was received while the officers were at the victim's residence, and the officers listened to the conversation on extension telephones. The electronic trap having been activated, the sheriff and other officers went to the house from which the call originated, were admitted, and found the telephone still in connection with the victim's telephone. The officers requested that the four male persons in the house, including defendant, speak over the telephone for identification. None of the four was advised of his privilege against self-incrimination or his right to counsel prior to the beginning of this identification procedure. All submitted. The sheriff, listening on an extension from the calling telephone, and the victim and a deputy sheriff, listening at the victim's house, identified defendant, among the four male persons as the one who had made the obscene call. Defendant was then taken to jail and after being advised of his privilege against self-incrimination and his right to counsel, he made a full confession. On the trial the court admitted testimony of the sheriff, his deputy and the victim describing the identification procedure and testimony as to the confession made by defendant.

BELL, Presiding Judge.

1. Under the facts of this case, no rights of the defendant under the Fifth Amendment were abridged. The mere use of the defendant's voice as an identifying physical characteristic did not involve or amount to compelling defendant to give against himself evidence having a testimonial significance. U.S. v. Wade, 388 U.S. 218 (1) ( 87 SC 1926, 18 L.Ed.2d 1149).

2. The fact that no warning was given by the investigating officers prior to the speaking into the telephone by the four male occupants of the house (one of whom was defendant) did not constitute a violation of defendant's rights under the Sixth Amendment. At that time, the status of the case was merely investigatory not accusatory. The transcript shows that suspicion had not then focused on defendant. He was no more a suspect than any other of the four. There was only speculative information that one of the four might be the culprit. The request by officers that each of the four talk over the telephone was, under those circumstances, nothing more than a natural and proper step in the investigative process. No one was forced to talk. Each voluntarily did so. The result had the twofold effect of protecting the innocent as well as focusing attention on the accused. Each of these purposes is important in investigations into criminal occurrences where the suspect is not known. Under these circumstances the warnings required by Miranda v. Arizona, 384 U.S. 436, were unnecessary. Clearly the defendant's prosecution had not reached a "critical stage." See annotations in 5 ALR3d 1360; 10 ALR3d 1954; 18 L.Ed.2d 1420.

It is of interest to note that immediately upon suspicion focusing on the defendant following his identification by voice, he was given the Miranda warnings. No issue is made as to the clarity of the warnings or as to the efficacy of a later confession made by defendant after those warnings.

The factual situation in this case differs from such other identification cases as the Wade case, supra, and Gilbert v. California, 388 U.S. 263 ( 87 SC 1951, 18 L.Ed.2d 1178), in that, inter alia, the lineups in the latter were held when each of the accused was in custody and under indictment and thus in a critical stage of his prosecution. "The rationale of those cases [Wade and Gilbert] was that an accused is entitled to counsel at any `critical stage of the prosecution' and that a post-indictment lineup is such a `critical stage'." Simmons v. U.S., 390 U.S. 377, 382 ( 88 SC 967, 19 L.Ed.2d 1247).

Judgment affirmed. Hall and Quillian, JJ., concur.