Jacobs v. State
| Decision Date | 22 February 1993 |
| Docket Number | No. A92A2438,A92A2438 |
| Citation | 429 S.E.2d 256,207 Ga.App. 714 |
| Parties | JACOBS v. The STATE. |
| Court | Georgia Court of Appeals |
Jeanne M. Canavan, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Barry I. Mortge, Asst. Dist. Atty., for appellee.
Ricky Jacobs was convicted of rape, aggravated sodomy, and armed robbery, and his motion for new trial was denied.
Three separate identifications of Jacobs were made by the victim. Several days after the crime, she selected his photograph as depicting her attacker, from a spread containing photographs of five other men of similar appearance. This effort was prompted by the victim's having seen a person in her neighborhood resembling the attacker.
The second identification was made at the preliminary hearing. At the request of Jacobs' attorney, the victim was brought to the hearing to determine whether she could identify Jacobs in person. Before the hearing, outside the courtroom, a police officer showed her a photocopy of the original photographic lineup, and presented her with her statement indicating which photograph she had identified as that of her attacker. She entered the courtroom and was told to look around and see if she could pick out the attacker. Jacobs was present, along with numerous other men of similar size and appearance. Although she stood approximately eight or nine feet from Jacobs, the victim selected no one. Jacobs was then brought to the bench by himself directly across the counsel table from where the victim had been placed. No other men of similar appearance were present nearby. She identified him as her attacker.
The third identification was the in-court identification at trial.
Jacobs moved in limine to exclude the in-court identification. At a pretrial hearing on the motion immediately before trial, the trial court found that: the photo lineup was properly conducted and was admissible; the second identification was impermissibly suggestive and excluded from offer by the State; an in-court identification would be allowed, based on the victim's testimony at the hearing that her in-court identification was based on her view of the assailant at the time of the crime, rather than on her previous identification of him from the photographic lineup or the preliminary hearing.
Applying the rule of Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972), we find no error. Nothing in the record, either in the procedure used or in the composition of the spread of photographs, suggests that the first identification was impermissibly suggestive.
In contrast, the second identification was clearly impermissibly suggestive, and based on the factors set forth in Neil, gave rise to a substantial likelihood of irreparable misidentification. See Bradley v. State, 148 Ga.App. 722, 723-724(2), 252 S.E.2d 648 (1979). However, the trial court ruled it admissible if the defense "opened the door" by bringing up the victim's initial inability to identify Jacobs at the preliminary hearing. That is exactly what occurred at trial. The defense went even further and elicited testimony regarding the one-on-one identification. Subsequently, on rebuttal, the victim was permitted to explain her initial inability to identify Jacobs, which she attributed to problems she was experiencing with her vision because of a torn contact lens. Since Jacobs' own trial strategy was responsible for admission, he has forfeited his right to complain. Dobbs v. State, 200 Ga.App. 300, 301, 407 S.E.2d 782 (1991).
As to the in-court identification, even where a pretrial identification has been found to be tainted, a subsequent in-court identification is admissible if it does not depend upon the prior, tainted identification but has some other, independent basis. Arnold v. State, 198 Ga.App. 449, 450(1), 402 S.E.2d 69 (1991). The victim testified that her in-court identification of Jacobs was based on her opportunity to view him at the time of the crime, and thus it was not error to allow it.
of a xerox copy of the original photographic lineup. At the time of trial, the State could not locate the original photographic lineup, which contained color photographs. A black and white xerox copy of that lineup was in the State's possession, however, having been used at the preliminary hearing. Jacobs objected to the admission of this exhibit, citing Daniel v. State, 185 Ga.App. 228, 230-231(2), 363 S.E.2d 634 (1987), on the ground that loss of the original gave rise to a presumption, which the State had not rebutted, that the original display was impermissibly suggestive.
We find no support for this argument, in...
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Johnson v. State, A98A0292
...bill after the transaction. Therefore, the photocopy was primary evidence supporting the officer's testimony. See Jacobs v. State, 207 Ga.App. 714, 429 S.E.2d 256 (1993). The fact that the officer did not also submit as evidence the original $20 bill found in the defendant's possession affe......
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Waddell v. State, A05A1961.
...is admissible if it does not depend on the prior, tainted identification but has some other, independent basis. Jacobs v. State, 207 Ga.App. 714, 715, 429 S.E.2d 256 [(1993)], citing Arnold v. State, 198 Ga.App. 449, 450(1), 402 S.E.2d 69 [(1991)]. Tiller v. State, 222 Ga.App. 840, 841, 476......
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Johnson v. State
...by this chance encounter. "A witness's in-court identification is admissible if it has an independent origin." Doublette v. State.26 See Jacobs v. State.27 Here, as discussed in Division 3, supra, Morton had an independent basis for her identification of Johnson through her witnessing him t......
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Baugher v. State
...of irreparable misidentification and the trial court did not err in allowing these identifications. See also Jacobs v. State, 207 Ga.App. 714(1), 429 S.E.2d 256 (1993). 4. Montgomery Baugher next contends that the court erred in admitting the hearsay testimony of William LeCroy regarding st......