Miller v. State

• Decision Date: 08 February 1999
• Docket Number: No. S98A1910.,S98A1910.
• Citation: 512 S.E.2d 272,270 Ga. 741
• Parties: MILLER v. The STATE.
• Court: Georgia Supreme Court

512 S.E.2d 272

270 Ga. 741

MILLER v. The STATE.

No. S98A1910.

Supreme Court of Georgia.

February 8, 1999.

Reconsideration Denied April 1, 1999.

Billy M. Grantham, Donalsonville, for Paul Miller.

J. Brown Moseley, Dist. Atty., John A. Warr, Asst. Dist. Atty., Bainbridge, Thurbert E. Baker, Atty. Gen., Angelica M. Woo, Asst. Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, Robert Ray Auman, Chief Asst. Dist. Atty., Cairo, for the State.

BENHAM, Chief Justice.

Paul Miller was convicted of felony murder, with the underlying felony being burglary, in connection with the death of Riley Lashley. ¹

On February 9, 1990, a masked man armed with a gun entered the Lashley home through a bedroom window and pointed the gun at the homeowners. Mr. Lashley escaped and ran to the home of a neighbor who called police. Before the police arrived, Mr. Lashley suffered a fatal heart attack and the intruder left the Lashley premises. Mrs. Lashley described the intruder's clothing to police and said he walked with a limp. She also stated that the intruder had repeatedly pulled at his mask, thereby permitting her to see his face. The officer responding to the emergency call recalled he had seen a man matching Mrs. Lashley's description a short distance from the Lashley home as he had driven there that evening, and informed another officer to look out for the man. The other officer stopped appellant as matching the description given, patted him down, and found a green leafy substance that later tested positive for marijuana. Appellant told the officer he had been at a friend's home. The friend, who lived directly behind the Lashleys, testified that appellant had been at his home, that the witness had left for a short period, and returned to hear a commotion at the Lashleys and see appellant climb over the fence from the Lashley property into the witness' backyard. When the witness refused to drive appellant away from the area, appellant left on foot. The neighbor to whose house Mr. Lashley ran testified that Mr. Lashley told her the intruder was a man who had a limp and who had stopped by the house earlier in the week looking for yard work. A forensic microanalyst testified that a facial hair found in a white mask found in the Lashleys' backyard could have come from appellant. The medical examiner testified that Mr. Lashley's heart had been in bad condition and that the heart attack had been caused by the stress placed upon it by the emotional reaction to an armed intruder and the physical exertion of running over one hundred feet to the neighbor's home. Another witness testified that, thirty months earlier, appellant had entered his home through a window and taken jewelry after having done yard work for the witness. Appellant's employer testified that appellant had one leg.

1. The evidence summarized above was sufficient to authorize a rational trier of fact to convict appellant of felony murder, with the underlying felony being burglary, and possession of less than an ounce of marijuana. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Durden v. State, 250 Ga. 325(5), 297 S.E.2d 237 (1982); Hicks v. State, 228 Ga.App. 235(2), 494 S.E.2d 342 (1997). Because the same standard of review is applicable to an assertion that a motion for directed verdict of acquittal was wrongfully denied, it was not error to deny the motion for directed verdict. Smith v. State, 267 Ga. 502(3), 480 S.E.2d 838 (1997).

2. Appellant next contends that his right to due process required the suppression of trial testimony concerning the surviving victim's selection of appellant as the perpetrator because the surviving victim's identification of appellant was the result of an allegedly impermissibly suggestive pretrial lineup identification procedure.²

It is error to allow testimony concerning a pre-trial identification of the defendant if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Reid v. State, 210 Ga.App. 783(2), 437 S.E.2d 646 (1993). A court need not consider whether there was a substantial likelihood of misidentification if it determines that the identification procedure was not impermissibly suggestive. Whatley v. State, 266 Ga. 568(2), 468 S.E.2d 751 (1996). An identification procedure is impermissibly suggestive when it leads the witness to an "all but inevitable identification" of the defendant as the perpetrator (Brewer v. State, 219 Ga. App. 16(6), 463 S.E.2d 906 (1995)) or, as was held in Heyward v. State, 236 Ga. 526, 224 S.E.2d 383 (1976), is the equivalent of the authorities telling the witness, "This is our suspect."

At the pre-trial motion to suppress, appellant argued that the lineup was constitutionally infirm because appellant was the shortest participant in the six-man lineup and the only one with a full beard. The GBI agent who assembled the lineup testified that it consisted of six men, all of whom generally had the same body build and complexion as appellant. Photos of the participants depict appellant as being, at the most, an inch or two shorter than the others, and show at least one other participant with facial hair. Neither the difference in height nor the lack of facial hair on most of the lineup participants made the lineup impermissibly suggestive. See Payne v. State, 233 Ga. 294, 297-98, 210 S.E.2d 775 (1974); Marshall v. State, 233 Ga.App. 573(2)(a), 504 S.E.2d 764 (1998); Manning v. State, 207 Ga.App. 181(5), 427 S.E.2d 521 (1993); Truelove v. State, 198 Ga.App. 14(1), 400 S.E.2d 396 (1990). The fact that the victim initially identified another lineup participant as the assailant does not make the lineup impermissibly suggestive. See McKenzie v. State, 162 Ga.App. 522(1), 292 S.E.2d 722 (1982). The trial court did not err when it denied the motion to suppress.

3. When appellant was stopped, the officer, knowing that a weapon had been used in the crime of which appellant was suspected, conducted a protective "pat-down" of appellant and found less than an ounce of marijuana in appellant's pocket. The drug charge was tried in the murder/burglary trial, and appellant contends that the trial court's refusal to sever the marijuana charge from the felonies constitutes reversible error.

Where, as here, the joinder of charges is based on the fact that the charges comprise a series of connected acts, whether to sever the charges for trial is a matter for the trial court's discretion. Bland v. State, 264 Ga. 610(2), 449 S.E.2d 116 (1994). The trial court does not abuse its discretion in denying a severance motion where evidence of one charge would be admissible in the trial of the other. Catchings v. State, 256 Ga. 241(4), 347 S.E.2d 572 (1986). Evidence of the circumstances of a defendant's arrest is admissible in the trial of the charge for which he was arrested. State v. Luke, 232 Ga. 815, 816, 209 S.E.2d 165 (1974). When the...