Selbo v. State, 75895
| Decision Date | 05 April 1988 |
| Docket Number | No. 75895,75895 |
| Citation | 368 S.E.2d 548,186 Ga.App. 779 |
| Parties | SELBO v. The STATE. |
| Court | Georgia Court of Appeals |
Kevin E. Perry, Savannah, for appellant.
Spencer Lawton, Jr., Dist. Atty., John E. Morse, Jr., Asst. Dist. Atty., for appellee.
Appellant was convicted of burglary and he appeals. Appellant contends the trial court erred by overruling his plea in bar of trial and his motion to suppress identification testimony.
Although appellant titled his pretrial motion a PLEA IN BAR AND MOTION TO SUPPRESS IDENTIFICATION TESTIMONY it was, in fact, a motion to dismiss the indictment because a pretrial photographic spread was allegedly tainted, and any testimony about the pretrial identification would deny him his right to due process of law. On appeal, appellant presents no argument as to dismissal of the indictment, but confines his argument to denial of his motion to suppress testimony relating to any pretrial identification. Accordingly, we will confine our discussion to that issue.
Evidence presented at a hearing on appellant's motion disclosed that Billy Shuman, the victims' grandson, went to his grandparents' home to rake the lawn. On arrival he went to the back of the house to pick up tools and saw appellant on the back porch. Shuman asked appellant what he was doing in the house, and when appellant could not get out the back door, he locked the screen door, ran into the house and locked a glass window door. Shuman ran to the front of the house but could not get in; as he was going back around the house appellant came out a rear bedroom window and started running. Shuman chased appellant about a mile or more but could not catch him. Shuman returned to his grandparents' house and used a neighbor's telephone to call the police. After the police checked the house Shuman accompanied them to the police station, and about three hours after the incident, assisted a police artist in making a composite sketch of appellant. One week later Shuman was called to the police station and was shown a photo spread of six persons, and asked if he could identify anyone. When Shuman got to the third photograph, which was a picture of appellant, he immediately identified appellant as the person he had seen at his grandparents' home. The police did not tell Shuman that appellant's photograph was in the group of six photos, nor did they tell Shuman that a suspect was in the group of photographs. When Shuman saw appellant's picture he stated without hesitation: Shuman remained at the police station and shortly after lunch was asked to step into a room where the police had brought appellant; Shuman walked into the room, occupied only by appellant and one other man, and identified appellant.
Appellant argues that viewing the photo spread, followed a short time later by the in-person identification, created the likelihood of irreparable misidentification. We do not agree. First, the trial court excluded testimony about the in-person identification, which was subsequent to the photo spread identification. Thus, the in-person identification could not have tainted a...
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