Redd v. State

• Decision Date: 18 April 1980
• Docket Number: No. 59450,59450
• Citation: Redd v. State, 268 S.E.2d 423, 154 Ga.App. 373 (Ga. App. 1980)
• Parties: REDD v. The STATE.
• Court: Georgia Court of Appeals

Page 423

268 S.E.2d 423

154 Ga.App. 373

REDD v.The STATE.

No. 59450.

Court of Appeals of Georgia.

Submitted Feb. 14, 1980.

Decided April 18, 1980.

Michael E. Hancock, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Asst. Dist. Atty., for appellee.

CARLEY, Judge.

Appellant was convicted of armed robbery.He now appeals the denial of his motion for a new trial.

1.In asserting on appeal the general grounds, appellant contends that the verdict finding him guilty of armed robbery is contrary to the evidence and decidedly against the weight of the evidence because of the inconsistent testimony of two of the eyewitnesses and because of alibi testimony of five witnesses all stating that appellant was with them on the day of the robbery.The state's evidence in this case consisted of three eyewitness identifications of appellant as perpetrator of the crime in question.

Issues regarding credibility of witnesses must be resolved solely by the jury.Young v. State, 232 Ga. 176, 205 S.E.2d 307(1974);Devlin v. State, 147 Ga.App. 703, 250 S.E.2d 6(1978).In this instance the jury, obviously, chose to believe the state's witnesses.

While the jury can and must weigh and analyze the evidence, an appellate court is restricted to a determination of the sufficiency of the evidence.Davis v. State, 151 Ga.App. 222, 223, 259 S.E.2d 207(1979).The evidence here is clearly sufficient to support the verdict and our review of the entire record compels our conclusion that a rational trior of fact could reasonably have found from the evidence proof of the guilt of appellant beyond a reasonable doubt.Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979);Green v. State, 152 Ga.App. 387, 262 S.E.2d 639(1979).

2.Appellant's second enumeration of error complains of the denial by the trial court of a defense motion to suppress the in-court identification of appellant by state's witnesses.Appellant argues that the pretrial identification procedures were so impermissibly suggestive that his due process guarantee of a fair trial was violated.This argument rests on two assertions.The first is that the perpetrator of the crime was described by eyewitnesses as having on a wide brim hat.A photographic array of several individuals which was prepared and shown to the eyewitnesses depicted only one person, appellant, wearing a hat.Secondly, appellant was wearing the same shirt at the lineup from which he was identified that he was wearing in the photographic array which was or may have been shown to eyewitnesses before reviewing the lineup.

Each case involving a photographic identification procedure must be considered on its own facts and "(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, 19 L.Ed.2d 1247(1968).We believe that in the instant case there is no doubt that the photographic array utilized is impermissibly suggestive.Thus, we must next determine whether under the "totality of the circumstances" the in-court identification was sufficiently reliable even though the pretrial procedure was suggestive.Payne v. State, 233 Ga. 294, 297, 210 S.E.2d 775(1974);Goswick v. State, 150 Ga.App. 279, 257 S.E.2d 303(1979).Here, only two of the eyewitnesses identified appellant from the photographic array in which he was depicted wearing a hat.However, prior to being shown the aforesaid photos, both of these witnesses had already informed the authorities they recognized one of the perpetrators of the crime as a man they had seen on different occasions and knew him by the name "Redd."Furthermore, one of the aforesaid...