Hamilton v. State, s. 43013
| Decision Date | 25 February 1986 |
| Docket Number | Nos. 43013,43014,s. 43013 |
| Parties | HAMILTON v. The STATE. FORTSON v. The STATE. |
| Court | Georgia Supreme Court |
Frank L. Derrickson, Atlanta, for Henry Hamilton.
Lewis R. Slaton, Dist. Atty., Benjamin H. Oehlert III, Asst. Dist. Atty., Atlanta, Michael J. Bowers, Atty. Gen., Dennis R. Dunn, Staff Asst. Atty. Gen., for State.
August F. Seimon III, Atlanta, for Michael Fortson.
The appellants, Henry Albert Hamilton and Michael Fortson, were indicted for the criminal attempt to commit armed robbery and for the murder of Stephen L. Hynes. Following a joint trial by jury, they were convicted of felony murder, and received sentences of life imprisonment. They appeal from these convictions. We affirm. 1
On the evening of May 28, 1983, the victim and his fiancee, Catherine Moore, were preparing to have dinner on the sidewalk outside her apartment door which she used as a patio, the couple having been talking and drinking beer and champagne there for about 45 minutes. Catherine testified that, when she heard a "soft creeping sound," she turned to see a male crouching down with a silver revolver, who stated, "Don't look at me; don't look at me." He then said, "You can come on down, buddy," whereupon a second male emerged from the bushes in a few seconds. Stephen and Catherine stood up when the armed intruder gave instructions that "we are going to enter the apartment now." Stephen held Catherine's arm, and they ran for about 10 yards, at which time two or three gunshots were fired, and they both fell. Catherine testified that she got up and, when she looked back, saw the assailant shoot her fiance, who was facing him.
There was evidence that appellant Fortson sustained gunshot injuries to his leg which he explained to a witness as having happened accidentally while appellant Hamilton was shooting victim Hynes. Expert testimony confirmed other evidence that the victim was killed by a .38 caliber bullet entering the chest from the rear. Another bullet recovered from the victim's body was also .38 caliber, but had been fired from a different revolver. Identification of the appellants as the assailants was made by Miss Moore from a police lineup, as well as from a hat and samples of hair, blood and saliva from the crime scene.
1. The appellants' first enumeration of error argues that their due-process guarantee of a fair trial was violated by the admission of highly unreliable eyewitness testimony produced by impermissibly suggestive identification procedures utilized by the state. This argument rests upon the assertion that witness Moore was shown photographic displays or arrays containing photographs of the appellants (driver's license photos, as contrasted with mug shots of the other subjects) and was unable to identify the appellants, and that a week or ten days later, she identified the appellants (who were the only subjects whose photographs had been included in the photographic array) out of a police corporal lineup. By itself, this procedure was not impermissibly suggestive. See Thornton v. State, 238 Ga. 160(1), 231 S.E.2d 729 (1977) and cits.
Nor were the identifications unreliable under the totality of the circumstances. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Miss Moore's uncertainty as to the assailants' descriptions on the night of the crime is understandable in view of her having just experienced the trauma of the murder of her fiance. Her identification at the corporal lineup was immediate and definite and, she testified, based upon her independent recollection. The lineup was only a month after the murder. There was evidence that she had had about five minutes to view both assailants at the well-lighted crime scene. Although she had been drinking, she had consumed only a half a glass of champagne. There was evidence that one of the assailants was wearing a hat (rather than a mask or hood as the appellants contend, which would have covered his face). Whatever conflicts in the evidence on the identity of the appellants as the murderers existed were resolved by the jury against the appellants. The evidence authorized the finding that they were the perpetrators, and shows that there is no likelihood of irreparable misidentification. It was not error to deny the motion to suppress the identification.
2. The appellants' second enumeration of error contends that, by having been required improperly to proceed with joint representation at trial, over timely objection, they were deprived of their constitutional right to effective assistance of counsel. They argue that whenever a trial court improperly requires joint representation over timely defense objection, reversal is automatic, citing Holloway v. Arkansas, 435 U.S. 475, 478, 98 S.Ct. 1173, 1175, 55 L.Ed.2d 426 (1978); Dean v. State, 247 Ga. 724, 279 S.E.2d 217 (1981); Brown v. State, 247 Ga. 298(2), 275 S.E.2d 52 (1981). They urge that, because of divided loyalties, counsel failed to cross-examine as to questionable testimony that implicated one or the other appellant.
A claim of denial of effective assistance of trial counsel may not be raised for the first time on direct appeal. Williams v. State, 254 Ga. 6, 10(6), 326 S.E.2d 444 (1985) and cit. Brown v. State, 247 Ga. supra (2), 275 S.E.2d 52. Single representation of multiple defendants raises no per se presumption of conflict of interest or prejudice. Cuyler v. Sullivan, 446 U.S. supra, p. 348, 100 S.Ct. p. 1718.
In the case under review, prior to the trial, the appellants desired single trial counsel; separate trial counsel was not requested until the day of the trial; the assistance of the public defender's office was provided at the trial; and the appellants fully and adequately presented and supported their alibi defenses. No material prejudice has been demonstrated. This enumeration of error is without merit.
3. The appellants' third enumeration of error contends that they were improperly convicted of felony murder, as they were indicted only for the offenses of malice murder and attempted armed robbery, and thereby allegedly received...
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