McCoy v. State

• Decision Date: 10 February 1989
• Docket Number: No. 77494,77494
• Citation: 378 S.E.2d 888,190 Ga.App. 258
• Parties: McCOY v. The STATE.
• Court: Georgia Court of Appeals

Page 888

378 S.E.2d 888

190 Ga.App. 258

McCOY v. The STATE.

No. 77494.

Court of Appeals of Georgia.

Feb. 10, 1989.

Randolph H. Phillips, Albany, for appellant.

Hobart M. Hind, Dist. Atty., John L. Tracy, Asst. Dist. Atty., for appellee.

BIRDSONG, Judge.

Appellant Leon McCoy appeals his conviction of armed robbery.

On October 28, 1987, at approximately 3:15 or 3:20 p.m., a black male later identified as the appellant, entered the Video Junction store. The clerk on duty saw him enter. At that time other customers were in the store, and appellant walked around and inquired about store membership. He was told that it required three forms of identification and he informed the clerk that he did not have it. Appellant said that he had a friend who was a member, but he declined to give the clerk his friend's name. Appellant then walked around the store some more, picked up a movie, and talked about it. When he came to the adult movie section, appellant asked the clerk for a piece of paper on which to jot the names of movies. The clerk gave him a piece of cash register tape. The appellant appeared to be writing movie names on the tape. Only one other customer remained in the store. When that customer left, appellant walked behind the counter carrying a butcher knife, and demanded that the clerk give him the store's money. Upon seeing the knife the clerk momentarily froze, whereupon the appellant knocked her to the floor. The clerk then arose and gave the appellant the money from the cash register. The appellant lifted up the cash register tray and removed a $5 bill from among the checks which were underneath the tray. The appellant took over $100, according to the clerk, including loose change in quarters, dimes, and nickels. He also took rolls of coins, which the clerk believed to be rolls of pennies; and, the bills taken were in denominations of 20s, 10s, 5s, and 1s. The appellant grabbed the clerk by the arm and ordered her to go into the back room; however, she declined to go apparently for fear of being hurt. Appellant then struck the clerk again, knocking her underneath the counter. At this point the clerk feigned unconsciousness, and appellant departed the store. After the lapse of a few minutes, the clerk arose and called the police. She gave a description of appellant to the police over the phone. Patrolman Weaver responded to the call and entered the store. He found the clerk "very upset," and he talked to her, "calmed her down," obtained more information from her, and "put it over the radio." The clerk described the offender as being a black male with a straggly beard who was wearing blue jeans, a light blue shirt, a blue jacket, and grey shoes.

A short time after 3:26 p.m., Detective Faulk observed a black male standing in front of a trailer at the Cozy Court Trailer Park. When the subject spotted the police car, he began to run. Detective Faulk and Patrolman Rachels pursued the fleeing subject; Faulk fired a warning shot. The appellant stopped and was apprehended by the two officers. The appellant was wearing a blue shirt, blue jeans and grey shoes when apprehended; he did not have a blue jacket in his possession. A subsequent search of appellant revealed that he was carrying about $128. After appellant was taken to the station, a roll of nickels and a roll of pennies were found underneath the patrol car seat in which appellant had been sitting. The total money found included a roll of pennies, a roll of dimes, a roll of nickels, $41 in $1 bills, loose change, and approximately $70 in $5 and $10 bills.

After his apprehension, and approximately ten minutes after the incident was reported, appellant was driven to the Video Junction store. A police officer entered the store and informed the clerk that they "had a gentleman out in the car and could [she] come outside to see if it was [the perpetrator of the crime], and to identify him." The clerk also was asked "[i]s this the one that could have robbed you." Although the car window was rolled up, the clerk saw the appellant and did not "exhibit any hesitation in her identification" of him as the perpetrator of the robbery. The clerk observed that, except for the blue jacket, appellant was wearing the same clothing he had worn during the robbery, including the grey shoes.

The appellant testified that he did not commit the robbery and asserted an alibi defense. His sister and her son testified in corroboration of his alibi claim. Appellant's alibi was that he was at home in his sister's house doing his ironing and other personal chores at the time of the robbery. Appellant claims he subsequently left the apartment to go to the grocery store and was arrested, and that he was carrying cash as he had recently cashed his paycheck. Held:

1. Review of the transcript "reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [the offense] charged." Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

2. Appellant asserts that the trial court erred in denying his motion for directed verdict, as his conviction of armed robbery (using a knife) and his acquittal of aggravated assault (with a knife) constituted an inconsistent verdict.

The inconsistent verdict rule in criminal cases has been abolished in this state. Milam v. State, 255 Ga. 560(2), 341 S.E.2d 216; Robinson v. State, 257 Ga. 194(3), 357 S.E.2d 74. This assertion is without merit.

3. Appellant asserts that the trial court erred in refusing to grant a mistrial or to strike the eyewitness testimony from the record, as the eyewitness' testimony, in which she identified appellant as the perpetrator of the offense, was impermissibly tainted by suggestive and improper police conduct. We disagree.

In determining whether a due process violation occurred in the conduct of the pretrial confrontation between the eyewitness and the appellant, the test is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Selbo v. State, 186 Ga.App. 779, 781, 368 S.E.2d 548; compare Pack v. State, 182 Ga.App. 618, 619, 356 S.E.2d 557. In this determination, the following factors will be considered: (a) opportunity to view the defendant at the time of the offense (the witness had a substantial period of time in which not only to view but also to converse with appellant, and the offense occurred in the afternoon); (b) the witness' degree of attention (the witness exhibited an extremely high degree of attention as reflected by her detailed testimony as to the appellant's conduct in the store); (c) the accuracy of the witness' prior description (the description of appellant particularly in regard to his clothing was very accurate); (d) the level of certainty demonstrated (the witness made her pretrial identification of appellant without exhibiting any hesitation, and at trial witness testified that there was no doubt in her mind that it was appellant in the store); and, (e) the length of time between the crime and the identification (in this case an unusually short period of time elapsed before identification). See generally Pack, supra. Thus, we find that there exists no substantial likelihood of irreparable pretrial misidentification of appellant.

Moreover, notwithstanding any taint in pretrial identification procedures, the witness' in-court identification may still be admitted if it has an "independent origin" from the illegal identification procedures involved. Selbo, supra, 186 Ga.App. at 780, 368 S.E.2d 548; Foster v. State, 156 Ga.App. 672(2), 275 S.E.2d 745. Considering the totality of the circumstances, we find the eyewitness' identification had such an independent origin.

4. In questioning the eyewitness regarding the type of weapon used by the assailant, the prosecutor used and openly displayed in the jury's presence a knife which was neither used in nor similar to the knife used in the robbery. The knife was not introduced in evidence. Appellant asserts that the trial court erred in allowing this procedure, as the risk of prejudice outweighed the probative value, if any, that the knife displayed would have.

The facts of this case differ from those in Walker v. State, 186 Ga.App. 61(2), 366 S.E.2d 400. However, the resulting error was harmless, as the evidence of guilt was so overwhelming "it is 'highly probable that the error did not contribute to the judgment.' " Johnson v. State, 238 Ga. 59, 61, 230 S.E.2d 869.

5. Appellant asserts that the trial court erred when it refused to grant a mistrial in view of alleged improper questioning and comments by the prosecutor regarding appellant's right to remain silent.

The argument of counsel is not contained in the trial record, neither has any apparent attempt been made, under OCGA § 5-6-41, to supplement or otherwise preserve the dialogue at issue. Normally, such a deficiency could preclude review of this enumeration of error. However, the record does disclose the following comment by the prosecutor, "[appellant]...