Carmichael v. State, 27047

• Decision Date: 09 March 1972
• Docket Number: No. 27047,27047
• Citation: 228 Ga. 834,188 S.E.2d 495
• Parties: Horace W. CARMICHAEL v. The STATE.
• Court: Georgia Supreme Court

Page 495

188 S.E.2d 495

228 Ga. 834

Horace W. CARMICHAEL v. The STATE.

No. 27047.

Supreme Court of Georgia.

March 9, 1972.

Rehearing Denied March 23, 1972.

Syllabus by the Court

1. Any possible illegality in the line-up procedure did not invalidate the in-court identification of the two witnesses who attended the line-up, since their in-court identification had an independent origin.

2. It was not erroneous to charge the jury that it was the contention of the State that the appellant committed the crime charged 'at or about the time alleged in the indictment or within seven years prior to its return, . . .'

Walter M. Henritze, Jr., Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joel M. Feldman, Carter Goode, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, W. Hensell Harris, Jr., Asst. Attys. Gen., Atlanta, for appellee.

MOBLEY, Presiding Justice.

Horace W. Carmichael appeals from his conviction of armed robbery, and assigns error on the denial of his motion for new trial, and on each of the grounds of the amended motion. No contention is made that there is merit in the general grounds of the motion for new trial.

The indictment charged the appellant and Robert Glover with the offense of armed robbery on February 1, 1970, by taking $50 from Catherine Heard, as bailee, by the use of a pistol and a shotgun. Mrs. Heard was an employee of The Quick Shop, located in Fulton County. Shortly before midnight on January 31, 1970, Robert Glover (known by several witnesses), with a pistol, and another man, with a gun, came into the store. The man with the gun demanded that Mrs. Heard give him her money, which she did. The appellant was identified as being the man with the gun by Mrs. Heard, Mr. Shy, another employee of the store, and Larry White, a customer in the store at the time of the robbery.

1. It is asserted that the trial court erred in overruling the appellant's motion for a hearing outside the presence of the jury on the validity of the identification procedures in a pre-trial line-up, after evidence was adduced that no attorney was present at the line-up. The appellant relies on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178.

No evidence of line-up identification was introduced by the State. Counsel for the appellant, on cross-examination of Mrs. Heard, asked her if she had attended a line-up, and she replied that she did. Counsel asked her if the defendant had a lawyer present, and she replied: 'I don't know.' Counsel then requested the court to have a hearing outside the presence of the jury. After colloquy between the court and counsel for the appellant and the State, in regard to the line-up, the jury returned, and counsel for the appellant continued his cross-examination of Mrs. Heard. She stated that some men were there, that someone asked her if she was sure the appellant was the man, but she did not know whether this was an attorney.

Mr. Shy testified on cross-examination that he attended the line-up, that he thought the appellant had a lawyer, who asked the witness if he was sure that this was the right fellow, but that he did not think the man identified himself as a lawyer. Mr. White testified that he did not attend the line-up.

The record has not other information about the line-up procedure. At the time of the colloquy between the trial judge and counsel for the State and the appellant, outside of the presence of the jury, no evidence was produced by either side as to whether the appellant had counsel at the line-up.

The cases of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, supra, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, supra, hold that it is a denial of the Constitutional right of representation by counsel to conduct a line-up in the absence of counsel for the accused, but neither of these cases require the reversal of a criminal case because there was a line-up conducted without counsel for the accused, where the evidence shows that the in-court identification of witnesses had an independent origin.

Both witnesses who attended the line-up, Mrs. Heard and Mr. Shy, testified that the appellant and his co-indictee were in the store on two occasions during the night of the robbery prior to their return to commit the robbery, and that the appellant bought a Chapstick the second time they came in. Their testimony shows that their identification of the appellant had an independent origin and was not based on any identification they had made at the line-up.

The record therefore fails to show error harmful to the appellant, even if he had no lawyer during the line-up procedure. Compare: Butler v. State, 226 Ga. 56(1), 172 S.E.2d 399; Aiken v. State, 226 Ga. 840(3), 846, 178 S.E.2d 202; Ford v. State, 227 Ga. 279(4-b), 180 S.E.2d 545.

2. It is next contended that the court erred...