Heyward v. State
| Decision Date | 06 April 1976 |
| Docket Number | No. 30517,30517 |
| Parties | Earl HEYWARD v. The STATE. |
| Court | Georgia Supreme Court |
Gerald H. Cohen, Savannah, for appellant.
Andrew J. Ryan, Jr., Dist. Atty., Joseph D. Newman, Asst. Dist. Atty., Savannah, Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Asst. Atty. Gen., Atlanta, for appellee.
This is another lineup identification case. It rises like the mountain, because it is there.
Earl Heyward was tried by jury in November 1974 for the offense of armed robbery. He was convicted and the jury fixed his sentence at twenty years. He appeals.
The evidence introduced by the State showed that four female employees of a mortgage company were in the office on March 1, 1974, when two black men entered. The taller man held a pistol. They left after taking about $12,000 in checks and $2,500 in cash. The defendant is six feet, four inches tall.
Police showed photographs to the four witnesses and conducted a lineup within a week of the robbery. One of the witnesses identified the defendant from the photographs but was unable to identify him in the lineup. Two other witnesses were unable to identify the defendant from the photographs but separately identified him in the lineup. All three of these witnesses identified the defendant at trial. The fourth witness was unable to identify the defendant from the photographs, in the lineup, or at trial.
The defendant's motions to strike the identification testimony and for directed verdict based upon lack of admissible identification evidence, were overruled.
Three alibi witnesses for the defendant testified that he was with them at the time of the robbery. The defendant took the stand and denied involvement in the robbery.
After the jury found the defendant guilty, the jury sentenced him to twenty years. The defendant's motion for a new trial was denied and he appeals.
1. Defendant argues that his motion to strike the identification testimony by three of the four eyewitnesses and their testimony concerning identification of him from the photographs and at a lineup should have been granted on the ground that the lineup was impermissibly suggestive.
The lineup was held six days after the robbery. It consisted of the defendant and five others-all black males. The defendant contends that it was overly suggestive in that he is 6 4 tall. One of the other men in the lineup was 6 1 and the rest were shorter.
A police detective testified that the lineup consisted of males of approximately the same age and weight as the defendant. He stated that at the time the lineup was conducted this was as close as the police could come to getting a group with the same general description, including height, as the defendant.
Regarding tall defendants, see the methods used by police to overcome this feature in Payne v. State, 233 Ga. 294, 297, 210 S.E.2d 775 (1974).
Pre-trial identification procedures are subject to the due process guarantee of fair trial. The most recent decision by the United States Supreme Court on this point is Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In Neil the Court reviewed its four prior decisions in this area and noted that in only one of these, Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), was the identification procedure found to violate due process. In Neil, the Court summarized Foster, supra, 409 U.S. p. 197, 93 S.Ct. p. 381, as follows: As Mr. Justice Fortas had pointed out in Foster,supra, 394 U.S. p. 443, 89 S.Ct. p. 1129 'In effect, the police repeatedly said to the witness, 'This is the man. " See also Baier v. State,124 Ga.App. 334, 183 S.E.2d 622 (1971).
Although it is true that the display of photographs to these witnesses may have suggested to them the identity of the defendant when they saw him in the lineup, it should be noted that one of these witnesses identified the defendant from the photographs. Moreover, here the first lineup consisted of six men whereas in Foster the first lineup consisted of three men, and there was no showup here as there was in Foster. Here three of these witnesses identified the defendant whereas in Foster only one witness was involved. We find that the case before us does not rise to the Foster or Baier level of the police saying to these witnesses, 'This is the man.'
Neil v. Biggers, supra (409 U.S. p. 199, 93 S.Ct. p. 382) provides the test: 'We turn, then, to the central question, whether under the
In order to raise the question of suggestiveness, the defendant, as he must, points to particularities of the circumstances, namely his height. He does not go forward to point out the 'totality of the circumstances' as he must in order to prevail. The state, however, relies on the 'totality of the circumstances' as it is authorized to do.
(1) The witnesses had opportunity to view the criminal at the time of the crime, considering both the amounts of time involved and light available. Cf. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct....
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Clark v. State
...of the defendant as the perpetrator (Brewer v. State, 219 Ga.App. 16(6), 463 S.E.2d 906 (1995)) or, as was held in Heyward v. State, 236 Ga. 526, 224 S.E.2d 383 (1976), is the equivalent of the authorities telling the witness, "This is our suspect." See also Hodnett v. State, 269 Ga. 115(4)......
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Thornton v. State
...the appellant as the criminal from his photograph. By itself, this procedure was not impermissibly suggestive. Cf. Heyward v. State, 236 Ga. 526, 224 S.E.2d 383 (1976), and Bennett v. State, 530 S.W.2d 511 (Tenn., 1975). The second allegation is that the lineup itself was suggestive. The tr......
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Grant v. State
...suspect.'" (Citations and punctuation omitted.) Miller v. State, 270 Ga. 741, 743(2), 512 S.E.2d 272 (1999). See Heyward v. State, 236 Ga. 526, 527-528(1), 224 S.E.2d 383 (1976). If the trial court determines that the identification procedure was in fact impermissibly suggestive, then the c......
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Garlington v. State
...punctuation omitted.) Hood v. State, 216 Ga.App. 106, 107(2), 453 S.E.2d 128 (1995). 13. (Punctuation omitted.) Heyward v. State, 236 Ga. 526, 528(1), 224 S.E.2d 383 (1976), citing Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Accord Rogers v. State, 265 Ga.Ap......