Clark v. State
| Decision Date | 13 April 1979 |
| Docket Number | No. 57433,57433 |
| Citation | 255 S.E.2d 110,149 Ga.App. 641 |
| Parties | CLARK v. The STATE. |
| Court | Georgia Court of Appeals |
Charles L. Burris, C. Richardson Cook, Macon, for appellant.
W. Donald Thompson, Dist. Atty., Thomas J. Matthews, Asst. Dist. Atty., for appellee.
This is an appeal from a conviction for armed robbery and aggravated assault. Mr. Odell Still, a pre-med student at Mercer University, went to a local Church's Fried Chicken restaurant to pick up food ordered by fellow employees working the night shift in the operating room. After working his way to the head of the line to place his order, an individual asked him if he could place his order next to get an order of french fries he had forgotten to order earlier. Mr. Still permitted the individual to place his order ahead of him. After receiving his order Still went to his car to return to the hospital. The same individual asked him if he could ride back toward the hospital with him. Still said yes. After riding some distance, the man "came up with a gun." Still was told to keep driving. Still testified: "I thought that I might have to identify him later, so I tried to look at him a little closer." When he stopped the car, the person demanded and received Still's wallet, and started to get out of the car. At that point he appeared to change his mind, "turned around and leaned back into the car and pointed the gun at (Still) again and he pulled the trigger." Still retained consciousness and drove his car to the nearest hospital and blew the horn until someone came out and found him. He identified the defendant as his attacker. Defendant appeals his conviction. Held :
1. The defendant contends the "pre-trial identification procedure was impermissibly suggestive and tainted the line-up and in-court identification." We do not agree.
Mr. Still stated that the area in Church's was "brightly lit" and he had "a good opportunity at that point to observe him and to observe his facial features." He also observed the defendant when he approached him in the parking lot and asked for a ride, while he was in the car during the ride, when he pulled the gun on him, more closely after he had pulled the gun, and finally when he was facing him as he was shot. Mr. Still stated there was no doubt in his mind that the defendant was the man.
On cross examination Mr. Still remembered that in Church's he observed that "his eyes were strange." The defendant's left eye "is crossed." He did not tell the police that the defendant had crossed eyes but did tell them "the eye was funny." This was confirmed by the police. He was shown a "composite drawing" made by the police and said "that looks like him." He was also shown a photographic lineup on two different occasions by the police. In the last photographic lineup, there were two pictures of the defendant along with a total of 16 pictures in all. He did not identify the defendant. The detective who presented the photographs testified that Mr. Still told him that he could identify the defendant In person but doubted he could identify anyone from a picture. A physical lineup was arranged as the defendant "stated that he would gladly stand in a lineup." Just before the lineup was held the defendant informed the police "he'd changed his mind . . . He said he wasn't standing in a lineup with or without a lawyer." The police proceeded with the lineup. All were black males, within a few years of the same age, as close as possible the same height, "the same build and set," and "as close the same hair style." When Mr. Still saw the defendant come in "(h)e got extremely nervous and started shaking all over . . . He was shaking so bad he would use try to use both hands to mark" his card with the number of the individual he selected. "There was no hesitation . . ." He selected the defendant. The photograph of the persons in the physical lineup was shown to the jury and was inserted in the record for our use.
An employee of Church's who made the sales to Mr. Still and to the person who broke into the line ahead of him (the defendant) described that person to the police and helped in the construction of the composite photograph. She identified the defendant in the lineup but placed a question mark by his number to show doubt. She also identified the defendant in the courtroom but continued to express "doubt." She also had been shown the photo lineup by the police but could not identify anyone.
Defendant contends that the use of the "composite" drawing and the photolineup with the defendant's photo included therein "was impermissibly suggestive of who the police suspected" and led to the witnesses' selection of the defendant from the physical lineup. We do not agree. The United States Supreme Court has held that the "primary evil to be avoided" is the " 'substantial likelihood of irreparable misidentification.' " Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387. There is a two-step inquiry: 1. the threshold inquiry is whether the identification procedure used was "impermissibly suggestive," and only if it was do we reach the second issue 2. whether there was a "substantial likelihood of irreparable misidentification." Gravitt v. State, 239 Ga. 709, 710, 239 S.E.2d 149.
We do not find the procedure employed to be impermissibly suggestive. See Heyward v. State, 236 Ga. 526(1), 224 S.E.2d 383. We find nothing suggestive to a witness when showing him a composite drawing of a suspect where the witnesses themselves provided the data from which the drawing was constructed. Use of a photo lineup per se is not suggestive. Dodd v. State, 236 Ga. 572, 224 S.E.2d 408. "(C)onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247). There was no showing in the instant case that the photographic lineup was suggestive. Thornton v. State, 238 Ga. 160(1), 231 S.E.2d 729.
The critical question in all pre-trial identification issues is whether the identification during the trial is based on the witness' observation during the incident, or his identification at trial was based on procedures used by the police after the incident e. g. composite drawings, photo lineup, one man showup, or a multiple person physical lineup. It appears that both the prosecution and the defense studiously avoid this issue as the question is never asked of the witness by anyone. The issue is always fought out by innuendo, inference, insinuation and implication. If either party would ask this question of the only person who knows the answer the witness, it would aid the trial and appellate courts in resolving this issue. We find this enumeration to be without merit.
2. The defendant objected to the doctor's testimony concerning the operation on Mr. Still after he was shot. The objection was overruled. Defendant's contention is that the charge was "aggravated assault," and this offense is defined by the Code as: "A person commits aggravated assault when he assaults . . . (b) with a deadly weapon." Code Ann. § 26-1302 (CCG § 26-1302; Ga. L. 1968, pp. 1249, 1280; 1976, p. 543). Thus, they reason that there is no requirement that a victim be actually injured and the crime is complete without proof of injury. Counsel is correct. Scott v. State, 141 Ga.App. 848, 849, 234 S.E.2d 685.
It is also argued that evidence must relate to the issue being tried and irrelevant matter should be excluded. Again, counsel is correct. Code Ann. § 38-201 (Code § 38-201). Thus, they argue, as the nature and extent of the injury is not an element, the fact that the consummated assault was followed by actual harm is irrelevant. At this point, we diverge in opinion. It is not unheard of for a defendant to claim that the instrument he used was not a deadly weapon. See Watts v. State, 142 Ga.App. 857(4), 237 S.E.2d 231 (sawed-off shotgun). Proof that the weapon fired and the nature and extent of the injury can be admissible to prove that the weapon was a deadly weapon. Haygood v. State, 142 Ga.App. 627(3), 236 S.E.2d 696.
Furthermore, admission of evidence including the determination of relevancy rests largely within the sound discretion of the trial judge, and if it has a tendency to establish a fact in issue as here, the dangerous nature of the weapon used, that is sufficient to make such evidence relevant and admissible. Alexander v. State, 239 Ga. 108, 110, 236 S.E.2d 83. Accord, Patterson v. State, 233 Ga. 724(2), 213 S.E.2d 612.
Other grounds exist for lack of merit in this enumeration. Admission of irrelevant evidence is not a ground for reversal unless it can be shown the evidence was prejudicial. Southwest...
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Mulkey v. State
... ... offered and admitted solely for the purposes permitted under ... the Rule, there can be no concern that a defendant might face ... conviction for the 'other acts' encompassed in such ... evidence") ... [ 18 ] See Clark v. State , 149 ... Ga.App. 641, 645-46 (255 S.E.2d 110) (1979) (noting that ... Georgia appellate courts are not bound by the decisions of ... federal district courts); Allen v. State Pers. Bd. , ... 140 Ga.App. 747, 749 (231 S.E.2d 826) (1976) (same) ... [ 19 ] ... ...
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Mulkey v. State
...no concern that a defendant might face conviction for the ‘other acts’ encompassed in such evidence").18 See Clark v. State , 149 Ga. App. 641, 645-46 (4), 255 S.E.2d 110 (1979) (noting that Georgia appellate courts are not bound by the decisions of federal district courts); Allen v. State ......
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...irreparable misidentification.' [Cit.]" Thornton v. State, 238 Ga. 160, 161(1), 231 S.E.2d 729 (1977). See also Clark v. State, 149 Ga.App. 641, 643(1), 255 S.E.2d 110 (1979). "Thus, there is a 'two-step inquiry': (1) whether there was an impermissibly suggestive photographic identification......
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...of irreparable misidentification.' Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247." Clark v. State, 149 Ga.App. 641, 643(1), 255 S.E.2d 110. We do not find from the photographic lineup that the procedure employed was impermissibly suggestive as claimed by th......