Nicholson v. State
| Decision Date | 02 October 1995 |
| Docket Number | No. S95A1406,S95A1406 |
| Citation | 265 Ga. 711,462 S.E.2d 144 |
| Parties | NICHOLSON v. The STATE. |
| Court | Georgia Supreme Court |
W. Edward Nethery, DeKalb County, Decatur, for Neville Nicholson.
J. Tom Morgan, Dist. Atty., Decatur, Robert M. Coker, Asst. Dist. Atty., Decatur, Michael J. Bowers, Atty. Gen., Department of Law, Atlanta, Thomas S. Clegg, Asst. Dist. Atty., Decatur, for the State.
Susan V. Boleyn, Sr. Asst. Atty. Gen., Department of Law, Atlanta.
Richard J. Warren, Asst. Atty. Gen., Atlanta.
Neville Nicholson and co-defendant Lebert Francis were tried before a jury and found guilty of two offenses: felony murder while in the commission of an aggravated assault; and, armed robbery. They filed separate notices of appeal and this is Nicholson's appeal from the judgment of conviction and life sentences entered by the trial court on the jury's guilty verdicts. 1
1. The victim was a drug dealer from whom Francis arranged to purchase marijuana. Nicholson and Francis borrowed a white Chevrolet to drive to the meeting with the victim. Both were armed. Later that evening, residents of an apartment complex heard gunshots in the parking lot and observed two men, one of whom was carrying a gun and a cellular phone, run to a white Chevrolet and drive away. One of these witnesses identified Nicholson from a photographic display and, at trial, identified Nicholson and Francis as the two men she saw fleeing the scene. Although the victim was armed and apparently shot at his assailants, he was fatally struck by three bullets. The bullets which killed the victim were identified as having been fired from a gun which was in Francis' possession on the night of the crimes. When Nicholson and Francis returned the borrowed white Chevrolet, it contained bullet holes and its back window was shot out. They had the victim's cellular phone in their possession and acknowledged to friends that they had been in a shootout. When Nicholson was arrested on an unrelated charge, he was in possession of a pager belonging to the victim. Nicholson offered an alibi defense. However, the State showed that there were fallacies and discrepancies in that defense.
Construing the evidence most strongly in favor of the State, it was sufficient to authorize a rational trier of fact to find proof of Nicholson's guilt of felony murder and armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Nicholson urges that it was error to admit the identification testimony of the witness who saw the two fleeing men on the night of the crimes, the specific contention being that this testimony was the product of an impermissibly suggestive photographic display.
The witness identified one of the men as having braided hair and, of the six photographs shown to her, only Nicholson's was of an individual with braided hair. Assuming, without deciding, that this rendered the photographic display "suggestive," the suggestiveness of the identification procedure alone will not render the witness' pre-trial identification of Nicholson inadmissible. If, under the totality of the circumstances, there was no substantial likelihood of irreparable misidentification, the witness' pre-trial identification would be admissible notwithstanding any suggestiveness in the procedure itself. Gravitt v. State, 239 Ga. 709, 710(4), 239 S.E.2d 149 (1977); State v. Frye, 205 Ga.App. 508, 509(2), 422 S.E.2d 915 (1992). The factors to be considered in evaluating the substantial likelihood of irreparable misidentification include: the opportunity of the witness to view the perpetrator at the time of the crime; the witness' degree of attention; the accuracy of the witness' prior description of the perpetrator; the level of certainty demonstrated by the witness at the time of identification; and, the length of time between the crime and the identification. Gravitt v. State, supra at 711(4), 239 S.E.2d 149.
Here, the witness saw the two men for only a short time before they fled, but the area was well lit. She was standing no more than 6 to 9 feet from them as they passed by her. The witness not only described the two men generally by height and age, she also gave a detailed description of their clothing and a specific description of their vehicle as being a white Chevrolet. When shown the photographic display, she unhesitatingly chose Nicholson's photograph within seconds. The identification procedure was conducted within 19 days of the crimes. Under the totality of these circumstances, there was no substantial likelihood of irreparable misidentification and testimony regarding the witness' pre-trial identification of Nicholson was properly admitted. Yancey v. State, 232 Ga. 167, 205 S.E.2d 282 (1974).
Since there was no substantial likelihood of irreparable misidentification resulting from the pre-trial identification procedure, it follows that the witness' in-court identification testimony was not tainted thereby and likewise was admissible. Pittman v. State, 149 Ga.App. 729(4), 256 S.E.2d 67 (1979).
3. The trial court's charge contains mixed references to the "defendant" and to the "defendants." Citing the plural references to the "defendants," Nicholson urges that it was error for the trial court to fail to include an unrequested instruction that the conviction of one "defendant" would not necessarily require the conviction of the other "defendant." Lanzo v. State, 187 Ga.App. 616, 618(4), 371 S.E.2d 119 (1988).
Since Nicholson and Francis were being tried jointly as parties to the crimes, it is understandable that the charge would contain references to the "defendants." In determining whether those references could have had the harmful effect that Nicholson ascribes to them, it is necessary to consider the entirety of the trial court's charge. George v. State, 260 Ga. 809, 810(5)(a), 400 S.E.2d 911 (1991); Coggeshall v. State, 161 Ga. 259, 268(8), 131 S.E. 57 (1925). Here, the trial court otherwise charged that it was for the jury to determine whether the evidence was sufficient to show beyond a reasonable doubt that "the defendant or either of them " was a party to the crimes. (Emphasis supplied.) The trial court then gave an extensive charge on "parties to a crime," which included a specific instruction that "mere association by one with other persons involved in the commission of a crime, without more," would not authorize the jury "to find such person guilty" unless the evidence showed "beyond a reasonable doubt that such person aided or abetted in the actual perpetration of the crime or participated in a criminal endeavor." (Emphasis supplied.) If the jury followed these instructions, it could not have found Francis guilty and then found Nicholson guilty simply because of his...
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