Baynes v. State

• Decision Date: 05 October 1995
• Docket Number: No. A95A1703,A95A1703
• Citation: 218 Ga.App. 687,463 S.E.2d 144
• Parties: BAYNES v. The STATE.
• Court: Georgia Court of Appeals

Page 144

463 S.E.2d 144

218 Ga.App. 687

BAYNES v. The STATE.

No. A95A1703.

Court of Appeals of Georgia.

Oct. 5, 1995.

Terry N. Massey, Conyers, for appellant.

Cheryl F. Custer, District Attorney, Nancy N. Bills, Assistant District Attorney, Conyers, for appellee.

McMURRAY, Presiding Judge.

Defendant Baynes appeals his conviction of aggravated assault. Held:

1. Defendant's first enumeration of error complains of the denial of his motion to dismiss the indictment due to impermissibly suggestive pretrial identification methods. While the State correctly maintains that defendant did not seek the proper remedy in his motion, we note that the trial court conducted a hearing at which evidence was presented as to the factual circumstances related to the pretrial identification, and thus, we infer that the trial court has viewed defendant's motion to be, in substance, a motion to suppress evidence arising from the pretrial identification. Therefore, we are not prepared to reject this enumeration on a technical basis as advocated by the State. But we do approve of the trial court's denial of defendant's motion since the totality of the evidence authorizes a conclusion that the pretrial identification was reliable.

The victim was talking on a pay telephone when he was struck, spun around, and hit again. The attacker demanded the victim's money as the two stood only a foot apart. Although it was nighttime, the site was well lighted.

The victim flagged down a police officer shortly afterwards and reported the attack. The victim described his attacker as a male, about five feet and eight or nine inches tall, with thin, short hair. The victim stated the attacker was wearing a blue shirt and that he could not tell what the writing was on the front of the shirt. The victim described the car in which his attacker had left the scene as a white Mustang 5.0 with blue stripes and tinted windows occupied by two to four males. The police officer broadcast a lookout for this vehicle.

Approximately 20 minutes later, a patrolling officer discovered defendant's car. There were four males in the car. When discovered, defendant and his companions were four or five miles and approximately seven to ten minutes driving time from the location of the attack. The victim was driven to the location where defendant and his companions were found and immediately identified defendant as his attacker. At trial, the victim repeated his identification of defendant as his attacker.

"This court has thoroughly considered the dangers inherent in the practice of bringing single suspects to confront witnesses for the purpose of pre-trial identification, in particular, the danger of the ' "substantial likelihood of irreparable misidentification." (Cit.)' (Daniel v. State, 150 Ga.App. 798, 799(1) (258 SE2d 604) (1979)). To evaluate that likelihood, we apply the test enunciated in Neil v. Biggers, 409 U.S. 188 (93 SC 375, 34 LE2d 401) which requires that we consider the witnesses' opportunity to view the suspect at the time of the offense, the witnesses' degree of attention, the accuracy of the witnesses' prior description and their level of certainty. However, both state and federal courts have also recognized consistently those countervailing considerations which may render the one-on-one confrontation permissible if not desirable. These include the necessity of a speedy police investigation and the necessity to resolve promptly any doubts as to identification so as to enhance the accuracy and reliability of the identification, thus expediting the release of innocent subjects. Bennefield v. Brown, 228 Ga. 705 (187 SE2d 865) (1972); Arnold v. State, 155 Ga.App. 782 (272 SE2d 751) (1980); see Bates v. United States, 405 F2d 1104 (D.C.Cir.1968)." Weathers v. State, 202 Ga.App. 849, 851(2), 415 S.E.2d 690.

In the case sub judice, the victim had only a brief interval to observe his attacker. The victim testified that after he was struck the first time and spun around, he was able to observe his attacker for five or six seconds before he was hit again and that the second blow affected his vision. Having just been struck and spun around without warning, it would seem reasonable to infer that the victim's attention was riveted on his attacker for this brief time. The description of the attacker given to police was not detailed and consisted of the attacker's race, height, hair length, and color of shirt. In the context of the circumstances in the case sub judice, it is significant that the victim regained his vision in time to acquire a detailed and accurate description of the car in which the attacker left the scene of the crime. And the victim's identification of defendant at the showup was immediate and certain.

We reject defendant's contention that the victim's description was inaccurate and insufficiently detailed. If defendant's shirt was aquamarine rather than blue and displayed an athletic team logo not mentioned by the victim, this distinction presented a factual issue but does not require suppression of the pretrial identification. The reliability of the victim's perceptions was also questioned because he had been drinking, but this concern was rebutted by the testimony of both the victim and the police officer whom he flagged down shortly after the crime.

Under the totality of the circumstances presented in the case sub judice, we find no error in the denial of defendant's motion predicated on the pretrial identification procedure. It appears that the showup was reasonably and fairly conducted soon after commission of the crime. Rogers v. State, 205 Ga.App. 739, 740(1), 741, 423 S.E.2d 435.

2. Defendant contends that the trial court erred in denying a motion in limine to exclude the testimony of T.H., a juvenile. This witness testified that he was in defendant's car on the night in question and observed defendant striking the victim. Defendant maintains that the testimony of this witness should have been excluded because his name was not on the original witness list, the witness was not newly discovered, and the new witness's name was provided to defendant via an amended witness list five days prior to trial (and two days prior to jury selection). The critical distinction is whether defendant has been allowed an opportunity to interview the witness. Here there was ample time to do this. Thrasher v. State, 265 Ga. 401, 402(3), 456 S.E.2d 578.

3. Defendant also questions the sufficiency of the evidence to authorize his conviction. But after reviewing the evidence presented at trial, we conclude that it was sufficient to authorize the jury to find...