Giddens v. State
| Decision Date | 09 February 1989 |
| Docket Number | No. 77761,77761 |
| Citation | 190 Ga.App. 723,380 S.E.2d 274 |
| Parties | GIDDENS v. The STATE. |
| Court | Georgia Court of Appeals |
Glen Galbauth, Jason M. Braswell, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Keith L. Lindsay, Nancy A. Grace, Asst. Dist. Attys., for appellee.
Giddens appeals his convictions of armed robbery (OCGA § 16-8-41(a)), theft by taking (OCGA § 16-8-2), unlawful possession of a firearm during commission of a felony (OCGA § 16-11-106(b)), and kidnapping (OCGA § 16-5-40(a)).
Early in the morning of Thursday, October 2, victim Carver and Jeff, a friend, left a bar and headed for Carver's car on a nearby street. As the two men approached the car, they saw Giddens sitting on the car and co-defendant Ryan leaning against a wall. Giddens apologized for sitting on the car and got up, and he and Ryan started to walk away. As Carver was opening his car door, Jeff yelled that the two men had a gun, at which point defendant stuck a gun in Carver's ribs and threatened to kill him. Jeff ran, pursued by Ryan, who chased him a short way and returned to the car. Ryan went through the glove compartment as Carver continued to struggle with defendant. Carver stood up and defendant pushed him back into the driver's seat. The two men told Carver he was going with them and they were going to kill him. Carver gave defendant his car keys and his cash and asked them to leave.
Jeff returned and yelled that he had called the police, although he had been unable to find a working phone. Defendant kept trying to get Carver into the car and shut the door. Ryan again chased Jeff off and returned. As Carver tried to exit from the passenger side of the car, Ryan grabbed his legs but lost his grip, allowing Carver to run to a bar, where he encountered a policeman who had responded to a call reporting screams. Carver described the assailants to the police.
Carver got his spare set of keys and retrieved his car, but it was stolen the next evening from the street near his apartment.
Early on Sunday, October 5, a Fayette County deputy observed Carver's car weaving and tried to pull it over. A chase resulted in the car skidding onto an embankment. Three men were in the car and two ran, leaving one Bedingfield. In the car were found a long black wig, which matched the description given by Carter of Ryan's hair during the incident, and a pistol of the type used in the robbery. A sawed-off shotgun wrapped in a sheet was tossed from the car before the stop. The arresting officer recognized Ryan and defendant as the two men who ran. Bedingfield identified Ryan as one of the two men in the car, and said he knew the other only by "Tony." He said that Ryan and Tony had picked him up in the car on Saturday night, October 4.
The next day, Carver was shown two photo spreads, one including Ryan's photo and the other including Bedingfield's. He immediately picked Ryan as the assailant without a gun. He chose Bedingfield as the assailant with the gun, based primarily on the length, styling and color of his hair, as shown in a photo taken in 1981. At no time was he shown a picture of defendant. Carver was later shown a second photo of Bedingfield, taken on the night of the arrest. He identified him as the same individual whose picture he had seen earlier but expressed hesitancy as to a positive identification.
In court on a day prior to trial, Carver was present in the hallway with the district attorney's investigator. They again discussed the second individual and Carver said he needed to see the man in person. The investigator told him to go to the door of the courtroom and see if he could identify the man. Defendant was in the courtroom, along with his attorney and other people, and Carver positively identified defendant.
A motion to suppress Carver's in-court identification of defendant was made on the ground that asking Carver to identify someone else other than the first-identified individual, in effect, told Carver that he identified the wrong man and impermissibly tainted any in-court identification. After a hearing, the court denied that motion.
During trial, Carver acknowledged that he initially chose the photo of Bedingfield, then related the in-court encounter and said he was sure defendant was the second man. After cross-examining Carver as well as after Ryan's cross and the State's redirect exams, defendant moved for a mistrial on the ground that the identification at the prior court date was an impermissible showup conducted without assistance of counsel, violating his Federal, Sixth Amendment, right. It was denied.
1. Defendant enumerates the trial court's failure to grant the mistrial because of alleged prosecutorial misconduct in conducting the showup. This ground, however, was not asserted in the motion for mistrial and will not be considered here for the first time. Stokely v. State, 188 Ga.App. 489, 490(2), 373 S.E.2d 230 (1988).
2. Defendant also objects that evidence of a showup conducted after indictment is inadmissible when conducted without benefit of counsel, based on the Sixth Amendment and ...
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...moved victim “a little” and victim took “a single step” toward vehicle before victim broke away from defendant); Giddens v. State, 190 Ga.App. 723, 725(3), 380 S.E.2d 274 (1989) (defendant pushed victim into car).(b) Intent. Ashley argues that there was insufficient evidence to show that he......
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...sufficient for the jury to find, beyond a reasonable doubt, that Austin committed the offense of kidnapping. See Giddens v. State, 190 Ga.App. 723, 725(3), 380 S.E.2d 274 (1989) (evidence sufficient to support kidnapping when defendant pushed the victim, who was standing in front of a car d......
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...bumps, and bruises suffered by the victim when she was pushed inside the apartment and prevented from leaving. See Giddens v. State, 190 Ga.App. 723, 380 S.E.2d 274 (1989). On the other hand, the offenses of rape and sodomy were proved by testimony concerning subsequent events. Because the ......
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