Holcomb v. State
| Decision Date | 19 February 1973 |
| Docket Number | No. 47762,No. 1,47762,1 |
| Citation | 196 S.E.2d 330,128 Ga.App. 238 |
| Parties | Bryan HOLCOMB v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. (a) A timely written motion to quash the in-court identification of the defendant by eye witnesses to the crime on the ground that such identification has been tainted by impermissible pre-trial procedures should be heard outside the presence of the jury.
(b) It was error to admit testimony identifying the defendant when the same was based on impermissible prior identifications of suggestive photographs and viewings of the prisoner after indictment not in the presence of his counsel.
2. The charge on alibi did not put an unconstitutional burden on the defendant.
3. Under the facts of this case the trial court erred in charging that flight may be considered as a circumstance pointing to guilt.
Following the robbery of a grocery store and a police investigation, an arrest warrant was taken out for the defendant in Huntsville, Alabama, where he was operating a trailer court. The state relied on the identification of three eyewitnesses who were in the store at the time of the robbery. The defendant relied on the defense of alibi, contending that he had not been in Georgia at all during the year in which the robbery took place. A jury trial resulted in conviction, the defendant's motion for new trial was overruled, and he appeals.
Joe Salem, Atlanta, for appellant.
Richard Bell, Dist. Atty., Decatur, for appellee.
1. The conviction of the defendant for robbery of a Kroger supermarket depends entirely upon the testimony of three eyewitnesses. Defendant's counsel moved to quash the in-court identification on the ground that it was tainted by prior and impermissible procedures including the following: (1) the witnesses were shown a group of photographs in which the pictures of other people appeared only once but the defendant was represented by two pictures, which suggested his identification to those questioned; (2) one of the pictures was a mug shot showing the prison number; (3) the witnesses in a body were allowed to look at the prisoner through a one-way mirror window in Huntsville, Alabama, for purposes of identification; (4) the witnesses in a body saw the defendant in the office of the Governor of Alabama on an extradition hearing associated with this trial. The defendant's counsel several times requested that the hearing on the motion to suppress the in-court identification not be held in the presence of the jury, and the trial judge in each instance refused.
Faced with a choice between abandoning his motion or allowing the jury to hear damaging testimony regarding the extradition hearing and an Alabama habeas corpus action and in particular allowing to be introduced in evidence the various photographs, including the mug shot, the attorney chose the latter course. The result of this was that lengthy examinations were conducted in the presence of the jury on matters not directly involving the guilt or innocence of the accused but which informed them of two other hearings, with all the trouble and expense involved therein in another state, and also informed them of the fact that the defendant had a previous arrest record which was impermissible, irrelevant, and prejudicial. Bacon v. State, 209 Ga. 261, 71 S.E.2d 615. That this was error is indubitable, and the only remaining question is whether the defendant's counsel by proceeding with the motion in the jury's presence and introducing the photographs in evidence waived his right to object to the ruling. This is not a case where counsel needs first to cross-examine a witness to decide whether or not he wishes to go into the question in mid-trial, nor is it a case where other evidence outside the identification by eyewitnesses strongly supported conviction. The motion was in writing and filed several days prior to the trial, and there was no reason not to go into it in the same manner that a motion to suppress evidence would be heard, for the same due process reasons. Counsel forced to conduct his motion to quash before the jury is frequently put in the position noticed by the Supreme Court in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, 'realizing that possible unfairness at the lineup may be the sole means of attack upon the unequivocal courtroom identification, and having to probe in the dark in an attempt to discover and reveal unfairness, while bolstering the government witness' courtroom identification by bringing out and dwelling upon his prior identification.' 'Due process determinations should, in most cases, be conducted before a judge without the presence of the jury.' Sera-Leyva v. United States, 133 U.S.App.D.C. 125, 409 F.2d 160, 163.
While failure to excuse the jury during such examination may under some circumstances constitute harmless error (see Taylor v. United States, 134 U.S.App.D.C. 246, 414 F.2d 1142) the record of the Alabama proceedings as it transpired could not but be prejudicial to the defendant's case. In so fundamental a...
To continue reading
Request your trial
-
Gomez v. The State
...recognized the two men, and she explained what each man had done. The court allowed the testimony. Gomez relies on Holcomb v. State, 128 Ga.App. 238, 196 S.E.2d 330 (1973), for the proposition that it is error, after the filing of a timely motion to suppress identification, to force the def......
-
Lloyd v. State, 52181
...out of the presence of the jury on any issue of fact necessary to determine the motion . . .' As pointed out in Holcomb v. State, 128 Ga.App. 238, 240, 196 S.E.2d 330, where the trial judge in effect compels that the hearing be held before a jury, then error results. However, in this case t......
-
Coats v. State, 29525
...out of the presence of the jury on the question of admissibility is often appropriate and sometimes required. Holcomb v. State, 128 Ga.App. 238, 196 S.E.2d 330 (1973); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). It is not, however, always required. Woolfolk v. Stat......
-
Heard v. State
...as the one to be identified by the witnesses as was the case in Baier v. State, 124 Ga.App. 334(1), 183 S.E.2d 622, and Holcomb v. State, 128 Ga.App. 238, 196 S.E.2d 330. 2. Defendant contends that testimony elicited by the state alluded to other offenses and acts (thus injecting his charac......