Myers v. State
| Decision Date | 20 April 1976 |
| Docket Number | No. 30806,30806 |
| Citation | 225 S.E.2d 53,236 Ga. 677 |
| Parties | Jimmy Larry MYERS v. The STATE. |
| Court | Georgia Supreme Court |
John Wright Jones, Savannah, for appellant.
Andrew J. Ryan, Jr., Dist. Atty., Michael K. Gardner, Asst. Dist. Atty., Savannah, Arthur K. Bolton, Atty. Gen., Harrison Kohler, Staff Asst. Atty. Gen., Atlanta, for appellee.
Appellant, Jimmy Larry Myers, was convicted after a jury trial in Chatham County of armed robbery and two counts of aggravated assault. He received one 12-year and two 5-year sentences, all to run concurrently. After his motion for a new trial was denied by the trial judge, appellant filed the present appeal. The four enumerations of error asserted in this appeal have been considered and found to be without merit.
The evidence shows that appellant entered the Montgomery Street Dairy Queen in Savannah and, at gunpoint, demanded the receipts in two cash registers from three women employees. He then ordered the women into a back room and demanded they undress. One employee began screaming and a struggle ensued. Appellant's gun was fired when one employee tried to grab the pistol from appellant. Two rounds misfired, but the third round fired and caused powder burns on the employee struggling over the gun. The discharged bullet also struck one of the other women and wounded her. Appellant fled out the back door after the gun was fired.
A fourth witness had seen appellant enter the Dairy Queen as she was leaving it earlier. She waited in her car and saw appellant in the establishment with the gun. She wrote down part of his automobile tag number and called the police. On the basis of the automobile tag number, the police went to appellant's apartment where he gave them two contradictory stories of his activities that evening. His wife signed a consent to search and a gun was found under a mattress at appellant's residence. All four women witnesses identified appellant as the robber at his subsequent trial.
Appellant's first enumeration of error is that the trial court erred in refusing to grant a new trial on the general grounds. There was sufficient evidence in this case to support the finding of the jury. See Proveaux v. State, 233 Ga. 456, 211 S.E.2d 747 (1974), and Proctor v. State, 235 Ga. 720, 721, 221 S.E.2d 556 (1975). This enumeration is without merit.
The next enumeration of error is that the trial court erred in permitting each of the witnesses to identify appellant at trial. Appellant argues the pre-trail photographic displays seen by each of the witnesses were so suggestive that their subsequent at-trial identification was tainted. Whether a subsequent in-court identification is impermissibly tainted depends on the circumstances of each case. '. . . (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 (1968). See also Dodd v. State, 236 Ga. 572, 224...
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