Hall v. State

• Decision Date: 13 July 2007
• Docket Number: No. S07A0826.,S07A0826.
• Citation: 282 Ga. 294,647 S.E.2d 585
• Parties: HALL v. The STATE.
• Court: Georgia Supreme Court

282 Ga. 294

647 S.E.2d 585

HALL v. The STATE.

No. S07A0826.

Supreme Court of Georgia.

July 13, 2007.

Stanley W. Schoolcraft III, Stockbridge, for Appellant.

Jewel Charmain Scott, Dist. Atty., Billy J. Dixon, Asst. Dist. Atty., David Allan Zisook, Asst. Atty. Gen., Thurbert E. Baker, Atty. Gen., for Appellee.

THOMPSON, Justice.

Defendant DeAngelo Rodrell Hall was convicted of felony murder, aggravated assault, and possession of a weapon during the commission of a crime.¹ On appeal, Hall challenges the admissibility of testimony regarding a witness' out-of-court identification, as well as the sufficiency of the evidence. Finding no error, we affirm.

1. An appellate court has a duty to question its jurisdiction in any case in which its jurisdiction is in doubt. Livingston v. State, 221 Ga.App. 563(1), 472 S.E.2d 317 (1996). In this case, Hall filed a timely notice of appeal after he was sentenced. The next day, while still within the appropriate time period, Hall filed a timely motion for new trial. Under these circumstances, Hall should have filed a request to stay the appeal until such time as the trial court ruled upon the new trial motion. Shirley v. State, 188 Ga.App. 357, 373 S.E.2d 257 (1988). That he did not do so does not render this appeal jurisdictionally defective. We treat the notice of appeal as being premature but effectively filed upon entry of the order denying the motion for new trial. Livingston v. State, supra at 564, 472 S.E.2d 317; Shirley, supra; Atkinson v. State, 170 Ga.App. 260, 316 S.E.2d 592 (1984).

2. Two men approached three Hispanic men, Hugo Chavez, Jesus Perez Soto and Antonio Ibarra Amador in 2001. One of the two assailants brandished a pistol, demanded money and pistol whipped Chavez. Following a struggle, the assailants fled. Nine months later, in 2002, two men approached Soto and Apolinar Escorza Dimas. Again, one of the two men brandished a pistol. However, this time, when Soto reached for the gun, the assailant fired, hitting and killing Dimas.

At trial, Chavez and Amador testified that Hall was the assailant who hit Chavez with the pistol in 2001. Soto was unable to identify Hall in court as the assailant. He testified, however, that the same man who assaulted Chavez in 2001, shot and killed Dimas in 2002. ²

A police detective testified that Soto picked Hall's photograph out of a photographic lineup after the shooting. The detective did not specify whether Soto identified Hall as the assailant in the 2001 or the 2002 crimes.

Hall asserts the trial court erred in permitting the detective to testify that Soto identified Hall's photograph out-of-court. In this regard, he points out that Soto was unable to identify Hall at trial, that he was not questioned about his out-of-court identification, and that he was excused as a witness before the detective testified.

The trial court did not err in admitting the detective's testimony.

Evidence of an extrajudicial identification is admissible, not only to corroborate an identification made at the trial, but as independent evidence of identity. Unlike other testimony that cannot be corroborated by proof of prior consistent statements unless it is first impeached, evidence of an extrajudicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind. The failure of the witness to repeat the extrajudicial identification in court does not destroy its probative value, for such failure may be explained by loss of memory or other circumstances. The extrajudicial identification tends to connect the defendant with the crime, and the principal danger of admitting hearsay evidence is not present since the witness is available at the trial for cross-examination. The fact that the victim was excused as a witness before his pre-hearing statements were offered through [a police officer's] testimony does not in any way require their exclusion.

(Citations and punctuation omitted.) In the Interest of L.J.P., 277 Ga. 135, 136-137, 587 S.E.2d 15 (2003).

3. The State presented eyewitness testimony showing that Hall committed the 2001 crimes; and that the assailant who committed the 2001, crimes, i.e., Hall, committed the 2002 crimes. It also introduced similar crime evidence showing that in 2003 Hall assaulted...