Lowe v. State

• Decision Date: 07 February 1977
• Docket Number: No. 53256,No. 2,53256,2
• Citation: 141 Ga.App. 433,233 S.E.2d 807
• Parties: W. L. LOWE v. The STATE
• Court: Georgia Court of Appeals

Page 807

233 S.E.2d 807

141 Ga.App. 433

W. L. LOWE v. The STATE.

No. 53256.

Court of Appeals of Georgia, Division No. 2.

Feb. 7, 1977.

Jack V. Dorsey, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, H. Allen Moye, Asst. Dist. Attys., Atlanta, for appellee.

QUILLIAN, Presiding Judge.

This is the third appearance of this case before us. See, Lowe v. State, 133 Ga.App 420, 210 S.E.2d 869, and Lowe v. State, 136 Ga.App. 631, 222 S.E.2d 50. Defendant again appeals his conviction of the offense of aggravated battery. The state's evidence showed defendant and another person attempted to rob Thomas Thompson and Marvin Carter who were making monthly collections due a furniture store. Defendant inserted a pistol into the car and stated something which was unintelligible. Mr. Thompson thought he mentioned money and reached for his wallet. Defendant fired his pistol. The bullet went through Mr. Thompson's hat and hit Mr. Carter in the neck. He is now paralyzed from the neck down.

Defendant contended Mr. Thompson should not have been permitted to identify defendant in court as pretrial identification procedures were impermissibly tainted. Secondly, he asserts that he was denied a "public trial" because the "court erred in excluding the public from the courtroom" over his objection. He appeals. Held :

1. A police detective took "six or seven" photographs to the home of Mr. Thompson. He ultimately identified defendant's photograph. The detective then advised him defendant "had been arrested before for the same offense and also . . . for murder, killing a boy in a holdup . . . had committed several robberies in that area and they just never had been able to pin anything on him and that he also killed a boy a few nights before." Later a lineup was held in the courtroom during the preliminary hearing and defendant was again identified.

C)onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247; Dodd v. State, 236 Ga. 572, 573, 224 S.E.2d 408. However, even though pre-trial identification procedures may be "impermissibly suggestive," if the witness' identification is based upon "observations at the time of the assault," and the court is satisfied by "the totality of the circumstances" that the identification was reliable even though the identification procedure was suggestive a new trial is not required. Heyward v. State, 236 Ga. 526, 529, 224 S.E.2d 383; Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387; Neil v. Biggers, 409 U.S. 188(2), 93 S.Ct. 375, 34 L.Ed.2d 401.

We find no prejudice for several reasons. First, defendant was clearly observed by the witness at a distance of "12 to 18 inches" during the incident. He testified that he "saw his face . . . saw it clearly . . . He made an indelible impression on me that night when he came to the window of the car. I am identifying him on that basis." We are convinced that the witness' identification of defendant had a source independent of the photographic display.

Secondly, the defendant was identified by a witness who saw defendant shoot the victim and had known defendant for "eight or nine years." Thus, even if the procedure followed had been error, no harm was done to defendant who was identified conclusively by other witnesses as the person who shot the victim. While we do not approve of the method used in this case, we find no merit to this enumeration. See Dodd v. State, 236 Ga. 572 at 573, 224 S.E.2d 408, supra, for condemnation of a similar practice.

2. The judge announced that he had been advised by the district attorney that the next state's witness "was afraid to testify because of the fear of possible bodily harm if the witness testified in open court in the presence of certain persons who lived in the same neighborhood where some of the parties in this case live." He announced that "it would be in the interest of justice that the spectators be temporarily excluded from the courtroom for the next few minutes . . . (and then) all the spectators might come back . . ." The defendant objected on the ground that "sufficient cause has not been shown to exclude the public . . . (which) would deny the defendant on trial his right to an open and public trial."

The Sixth Amendment to the United States Constitution and Article I, Section I, Paragraph V of the Georgia Constitution of 1945 guarantees, inter alia, that "(e)very person charged with an offense against the laws of this State . . . shall have a public and speedy trial by an impartial jury." The purpose of the requirement for a "public trial was to guarantee that the accused would be fairly dealt with and not unjustly condemned." Estes v. Texas, 381 U.S. 532, 538, 85 S.Ct. 1628, 1631, 14 L.Ed.2d 543).

The right to a public trial is deeply rooted in the history and jurisprudence of our nation. We distrust secret inquisitions and star chamber proceedings. Presence of the press, the bar, and spectators guard against possible abuse of the judicial process (In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 92 L.Ed. 682), and tend to assure trustworthy testimony. Tanksley v. United States, 145 F.2d 58 (9th Cir. 1944). The "public trial" concept has however "never been viewed as imposing a rigid, inflexible straitjacket on the courts. It has uniformly been held to be subject to the inherent power of the court to preserve order and decorum in the courtroom, to protect the rights of parties and witnesses, and generally to further the administration of justice. See Bowers, Judicial Discretion of Trial Courts (1931), § 262, pp. 296-297; 6 Wigmore (on Evidence (3d Ed. 1940)) p. 338; 1 Bentham, (Rationale of Judicial Evidence), p. 541 et seq." People v. Jelke, 308 N.Y. 56, 123 N.E.2d 769; 23 C.J.S. Criminal Law § 963(3) p. 856.

"(I)t is a well-recognized principle of our law that the judges of . . . (our) courts are invested with a wide discretion in the management of the business before them, and this discretion will not be controlled unless it is shown to have been manifestly abused." Perryman v. State, 114 Ga. 545, 546, 40 S.E. 746; Atlanta Newspapers, Inc. v. Grimes, 216 Ga. 74, 79(...