Brown v. State
| Decision Date | 05 March 1982 |
| Docket Number | No. 63144,63144 |
| Parties | BROWN v. The STATE. |
| Court | Georgia Court of Appeals |
Kit Barron Bradshaw, Cartersville, for appellant.
Darrell Wilson, Dist. Atty., Cartersville, for appellee.
Appellant appeals from his conviction of armed robbery.
1. In related enumerations of error appellant asserts that the trial court erred in denying his motion to suppress photographic and line-up identification evidence and testimony concerning that identification.
Dodd v. State, 236 Ga. 572, 574, 224 S.E.2d 408 (1976). Likewise, Key v. State, 146 Ga.App. 536, 537(5), 246 S.E.2d 723 (1978). We find no error for any reason urged on appeal in the manner in which the identification procedures were conducted in the absence of counsel. See Reese v. The State, 145 Ga.App. 453, 243 S.E.2d 650 (1978).
On the night of the robbery, the victim was shown a photographic display containing approximately 125 or 130 photographs. Appellant's photograph was not among those shown to the victim and she was unable to identify any one in the photographs as the perpetrator of the crime. Subsequently however, appellant's photograph was added to the display and the victim was asked to look at the photographs again and was told that they weren't "the same" as when she had viewed them previously. On this occasion the victim picked out appellant's photograph as being that of the robber. Appellant does not assert that the broad ranged display itself was "impermissibly suggestive" but contends that the mere addition of his photograph and the advice to the victim that the display was not "the same" constituted an impermissibly suggestive procedure. However, the victim herself testified that when she was shown the display for the second time "there were a bunch of pictures in it that weren't in it the night" she had first viewed the display. It is thus clear that the inclusion of appellant's photograph in the display and the officer's statement that it was "not the same" as when she had viewed it earlier did not render the otherwise proper identification procedure impermissibly suggestive. See Caylor v. The State, 155 Ga.App. 489, 490(1), 270 S.E.2d 924 (1980).
Furthermore, even assuming that the pre-trial identification procedures were impermissibly suggestive, under the "totality of the circumstances" the trial court did not err in admitting the victim's identification testimony at trial. See Eiland v. State, 246 Ga. 112, 113(1), 268 S.E.2d 922 (1980); Smith v. State, 239 Ga. 744, 238 S.E.2d 884 (1977); Lynch v. State, 158 Ga.App. 643, 281 S.E.2d 640 (1981); Glass v. State, 158 Ga.App. 475, 280 S.E.2d 883.
2. Appellant enumerates as error the failure to grant his motions for a continuance and mistrial under the following circumstances: On the morning of jury selection, after the voir dire of the first panel but before the voir dire of the second, defense counsel was served with an amended list of state's witnesses which contained a new name. The assistant district attorney stated that he had been unaware of the newly listed witness until that very morning. Defense counsel moved for a continuance. The trial court instructed the assistant district attorney to have the newly listed witness brought to the courthouse in order that he could be interviewed by defense counsel. Defense counsel was in fact afforded the opportunity to interview the new witness and, on the following day, the trial commenced. Defense counsel did not renew the motion for a continuance at that time and the witness testified during the trial without objection. We find no error in this procedure. See Legare v. State, 243 Ga. 744, 749(8), 257 S.E.2d 247 (1979); Lakes v. State, 244 Ga. 217, 259 S.E.2d 469 (1979); Cates v. State, 245 Ga. 30, 34(3), 262 S.E.2d 796 (1980); Butler v. State, 139 Ga. 92(1), 227 S.E.2d 889 (1976). If defense counsel felt...
To continue reading
Request your trial
-
Taylor v. The State
...a valid basis for reversal. See id. See also McPherson v. State, 274 Ga. 444, 449(7), 553 S.E.2d 569 (2001); Brown v. State, 161 Ga.App. 729, 730(2), 288 S.E.2d 866 (1982); Griffeth v. State, 154 Ga.App. 643, 643-645(1), 269 S.E.2d 501 (1980). 6 3. Prior to trial, the state filed a notice o......
-
Perry v. State, 69009
...In the total circumstances of the case, as set out in Division 1, these contentions are wholly without merit. See Brown v. State, 161 Ga.App. 729(1), 288 S.E.2d 866 (1982); Reese v. State, 145 Ga.App. 453(2), 243 S.E.2d 650 3. Perry argues the trial court erred in not severing his trial fro......
-
Skrine v. State, 68465
...procedure used to identify appellant. That being so, there was no error in permitting the identification testimony. Brown v. State, 161 Ga.App. 729(1), 288 S.E.2d 866 (1982). 3. Appellant's final enumeration of error deals with two witnesses who were permitted to testify even though their n......
-
Cornell v. State, 65223
...Appellant's complaint that counsel was not present at the pre-indictment lineup is controlled adversely to him by Brown v. State, 161 Ga.App. 729(1), 288 S.E.2d 866. Nor does the fact that the victim was shown a photographic display at sometime prior to the lineup require suppression of the......