Dagenhart v. State
| Decision Date | 02 September 1975 |
| Docket Number | No. 29841,29841 |
| Citation | 218 S.E.2d 607,234 Ga. 809 |
| Parties | Larry Thomas DAGENHART v. The STATE. |
| Court | Georgia Supreme Court |
Weiner & Bazemore, Paul S. Weiner, Jonesboro, for appellant.
William H. Ison, Dist. Atty., Clarence L. Leathers, Jr., Asst. Dist. Atty., Jonesboro, Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Deputy Asst. Atty. Gen., Atlanta, for appellee.
Larry Thomas Dagenhart appeals his conviction for armed robbery and aggravated assault in Clayton Superior Court, and sentences of 20 and 10 years respectively to be served concurrently.
The state's evidence shows that two white males, armed with handguns, entered a convenience food store on Highway 138 in Clayton County, Georgia at approximately 10:00 p.m. on the night of July 9, 1972. The cashier was robbed and during the course of the robbery three customers came in and were ordered to 'hit the floor.' Upon completion of the robbery one of the men fired one shot into the cashier's chest, critically wounding him.
At the trial the appellant was identified by the cashier as the man who robbed and shot him. Four other eyewitnesses, the three customers in the store plus the wife of one of the customers who was outside in a parked automobile, identified the appellant as one of the perpetrators of the crime. One of these witnesses saw the appellant and his accomplice leaving the store in a car described as a 'goldish-tan' Mustang. Another state witness testified that within minutes after the crime she saw a strange car parked near her house on Highway 138 in Clayton County. She noted it to be a tan Plymouth and secured its tag number. She and another state witness testified that in the vicinity of this car they saw another car burst into flames and the tan Plymouth pull off traveling south on Taylor Road. The police were notified and found the burning car to be a 1965 gold Mustang. The tag number of the tan Plymouth in the vicinity of the burning car was found to be registered to the appellant.
1. The appellant contends that the in-court identification was tainted in that the photographic identification procedure was 'impermissibly suggestive.' Shortly after the robbery the police showed the witnesses and the victim a set of 16 photographs, which included a photograph of the appellant. Most of the witnesses, including the victim, were unable to give a definite identification from these photographs but indicated that the assailant was shown on the photograph identified as A-2, which was a photograph of the appellant's brother. Some ten days later the same witnesses were shown a set of six photographs, including that of the appellant and two of his brothers. At this time the witnesses identified the photograph of the appellant as being the assailant.
Examining the entire record and looking to the totality of the circumstances we conclude that the positive in-court identification by the state's witnesses was not tainted by the photographic displays. We conclude that there was positive, sufficient, independent evidence upon which each of the state's witnesses premised the in-court identification of the appellant. This conclusion has been reached by applying the applicable standards set forth in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247; Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, and our recent cases of Yancey v. State, 232 Ga. 167, 205 S.E.2d 282 and Payne v. Stae, 233 Ga. 294, 210 S.E.2d 775.
2. Enumeration of error No. 3 contends that the trial court erred in overruling the appellant's motion for mistrial on the...
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Fleming v. State
...1247 (1968). See Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) (show-up). See also Dagenhart v. State, 234 Ga. 809, 810, 218 S.E.2d 607 (1975), and Payne v. State, 233 Ga. 294, 299, 210 S.E.2d 775 (1974). On the facts of this case, we hold that the photographic dis......
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