Martin v. State

• Decision Date: 17 November 1989
• Docket Number: No. A89A0897,A89A0897
• Citation: 388 S.E.2d 420,193 Ga.App. 581
• Parties: MARTIN v. The STATE.
• Court: Georgia Court of Appeals

Page 420

388 S.E.2d 420

193 Ga.App. 581

MARTIN v. The STATE.

No. A89A0897.

Court of Appeals of Georgia.

Nov. 17, 1989.

Henry G. Bozeman, Dublin, for appellant.

Ralph M. Walke, Dist. Atty., Tyson Blue, Asst. Dist. Atty., for appellee.

BIRDSONG, Judge.

Appellant Matthew Martin appeals his conviction of armed robbery and burglary.

During the night of October 15-16, 1986, someone gained entry to the Easter Seal Center in Dublin, Georgia, by breaking a window. There were no witnesses, but appellant's fingerprints were found on both sides of the broken glass. On the afternoon of October 16, 1986, a man armed with a pistol robbed an insurance office in Dublin. Later that day, an insurance company employee identified Martin as the robber.

Martin was convicted of both crimes. Upon his motion, however, Martin was granted a new trial. He was retried and was again convicted. He now appeals alleging that his identification by the victim was tainted, asserting that he was erroneously denied a mistrial on various grounds and contending that he was denied his right to effective assistance of counsel. Held:

1. Martin asserts that the trial court erred by denying his motion in limine to exclude his identification by the insurance company employee. The employee was called to the police station to see if she could identify a robbery suspect. She first looked at two "mug books" and could not find the man. (Martin's photograph was not included in the books of photographs.) Thereafter, the victim was twice requested to look at the same man (Martin) to see if she could identify him, but she could not. Finally, after Martin put a white piece of paper over the lower part of his face like the man who robbed her, and after she heard him talk, she identified Martin as the man who robbed her.

Martin argues these procedures were extremely suggestive, and that the employee identified him only after the police twice suggested that Martin was the man who robbed her. Thus, he asserts, the show-up was impermissibly suggestive, see Towns v. State, 136 Ga.App. 467, 221 S.E.2d 631, and created a substantial likelihood of an irreparable misidentification. Further, Martin argues that his in-court identification was tainted by the earlier show-up. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401. Therefore, he asserts that his motion in limine to exclude testimony concerning the show-up and the in-court identification should have been granted.

The test for determining whether a due process violation occurred in cases such as this "is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." McCoy v. State, 190 Ga.App. 258(3), 378 S.E.2d 888. The considerations in evaluating the likelihood of misidentification include: (a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness' degree of attention, (c) the accuracy of the witness' prior description of the criminal, (d) the level of certainty demonstrated by the witness at the confrontation, and (e) the length of time between the crime and the confrontation. Neil v. Biggers, supra.

Considering these factors, we conclude that under the "totality of the circumstances," Neil v. Biggers, supra, the procedures used in this case to identify Martin were not so impermissibly suggestive as to cause a very substantial likelihood of irreparable misidentification. (a) Although the victim only saw the man who robbed her for a short time, the robbery took place in the middle of the day, indoors, and in a well-lighted office. The victim also testified that she could see well, and that she and the robber were very close together. The robber's face was partially masked, but except for that, the victim had an excellent opportunity to see the man who robbed her. (b) Her attention was focused entirely on the robber, and she was not distracted by other events occurring at the time. (c) The description of the robber given to the police by the victim shortly after the crime accurately described Martin. Although Martin argues that the description given the police was so general that it could include large numbers of black men, the description given closely described Martin's physical characteristics. (d) The victim displayed a high degree of certainty in her identification of Martin. Although she did not pick anyone from the two mug books, the books did not include Martin's photograph. Further, although she did not identify Martin when she saw him brought to the police station or when she first saw him in the interview room, she made no misidentifications and she explained that she could not identify the man when he entered the police station because she could not see him very well. When she next saw the man in the interview room, she thought that the voice "sounded very much the same," but she did not identify him at first because she was looking at the full face of the man and that was not how she saw him at the time of the robbery. When she saw him with a handkerchief covering part of his face, however, "there was no question in [her] mind that it was the same man." She testified that the eyes were the same and that there was something about the way the man tilted his head. (e) Finally, we note that there was only about a two-hour interval between the robbery and the show-up at the police station, and that there is no indication in the record that the victim suffered any lapse of memory in the interval. Considering these factors in light of the totality of the circumstances, we find there is no substantial likelihood of an irreparable misidentification, and accordingly, it was not error for the trial court to deny Martin's motion in limine to exclude the evidence of the out-of-court identification.

Assuming arguendo that some taint occurred in the pretrial identification, a witness' in-court identification may be admitted if it has an "independent origin." McCoy v. State, supra. See Jones v. State, 258 Ga. 25(3), 365 S.E.2d 263. Again, considering the totality of the circumstances discussed above as well as the witness' ability to identify appellant notwithstanding the passage of time until trial, appellant's change in appearance, and appellant's efforts to make the in-court identification difficult, we find that the employee's in-court identification had an independent origin.

2. Appellant's second and sixth enumerations of error concern the conduct of one of the State's witnesses, the investigating police officer. The officer, who was allowed to stay in the courtroom to assist the prosecutor, is alleged to have violated the witness sequestration rule by discussing the case with the victimized employee before her testimony and by placing appellant's character in question by referring to the witness' testimony in appellant's first trial. Appellant asserts that either of these events warranted the granting of his motion for mistrial.

Appellant argues in support of enumeration 2 that a mistrial was required because the officer told the employee that he believed appellant might have people in the courtroom who looked like him. This conversation did not violate the sequestration rule. The purpose of the rule is to keep the testimony of one witness from influencing the testimony of other witnesses. Rogers v. State, 257 Ga. 590(4), 361 S.E.2d 814. The discussion did not concern the testimony of the officer, and thus the officer's testimony could not have influenced the employee's testimony. Accordingly, the sequestration rule was not violated. It was not error to deny any motion for mistrial specifically grounded on a sequestration rule violation.

The sixth enumeration of error asserts that it was error to deny appellant's motion for a mistrial when the same officer allegedly introduced appellant's character in question and prejudiced him in front of the jury by referring to testimony in appellant's first trial. The officer's answer was made in the context of questions asked by appellant's counsel concerning responses made by the witness at appellant's first trial. Although appellant's attorney carefully referred to the first trial as a previous hearing, the witness at one point answered a question about his previous testimony by saying "at the time of the last trial when I was asked that question...." This apparently inadvertent comment in the course of cross-examination designed to impeach him does not rise to the level of misconduct condemned in Boyd v. State, 146 Ga.App. 359, 246 S.E.2d 396. Although the comment was contrary to the agreement reached on how to describe the first trial, we do not find from the context of the comment that it was made with the intention of prejudicing the jury against appellant. Further, the response was to a question by appellant's trial defense counsel who had earlier introduced the subject of the testimony given at the first trial. Assuming without deciding that the officer's testimony could be construed to have placed appellant's character in issue, it appears that the responsibility for this rests with appellant's counsel since the answer was to his questioning. "Trial counsel may not take chances in propounding questions which may elicit damaging answers and then demand a mistrial on the basis of the answer. Felker v. State, 252 Ga. 351 (314 SE2d 621) (1984). Furthermore, the decision of whether to grant a mistrial is within the sound discretion of the trial court and his ruling will not be disturbed absent an abuse of discretion. Ladson v. State, 248 Ga. 470 (285 SE2d 508) (1981)." Buxton v. State, 253 Ga. 137(3), 317 S.E.2d 538. There was no error in denying appellant's motion for mistrial. Accordingly, enumerations of error 2 and 6 are without merit.

3. Appellant asserts that the trial court erred by failing to grant a mistrial because the State allegedly used its peremptory strikes in a racially prejudicial manner....