Snider v. State

• Decision Date: 10 June 1991
• Docket Number: No. A91A0458,A91A0458
• Citation: 200 Ga.App. 12,406 S.E.2d 542
• Parties: SNIDER v. The STATE.
• Court: Georgia Court of Appeals

Page 542

406 S.E.2d 542

200 Ga.App. 12

SNIDER v. The STATE.

No. A91A0458.

Court of Appeals of Georgia.

June 10, 1991.

Amy A. Petulla, for appellant.

Ralph Van Pelt, Jr., Dist. Atty., Mary Jane R. Palumbo, Asst. Dist. Atty., for appellee.

BANKE, Presiding Judge.

The appellant, Candace Snider, was convicted of selling the drug alprazolam in violation of the Georgia Controlled Substances Act. She brings this appeal from the denial of her motion for new trial.

GBI Agent Scott Whitley testified that he purchased the drug in question from the appellant on the night of November 18, 1989. He stated that he did not know the appellant at the time but dealt with her directly during the transaction and was able to observe her for a period of approximately two minutes under "good" lighting conditions. He wrote a description of her in his field notes approximately 30 minutes later in which he characterized her as a white female, 25 to 30 years of age, weighing 145 to 155 pounds, with medium length, blond curly hair.

Agent Whitley testified that soon after the transaction was completed, he observed the appellant "getting into the passenger side of a gray Mustang GT with a wrecked front end bearing Georgia license THE 949." He stated that later that night, he saw this same vehicle parked outside a Huddle House in which the appellant could be observed dining. He testified that approximately a week-and-a-half to two weeks after the sale, he observed this vehicle parked outside an apartment building from which he later saw her emerge and that, approximately a month after that, he saw it parked outside a convenience store where she was working. The appellant was arrested on March 8, 1990, at which time Agent Whitley confirmed her identity during a one-on-one showup at the jail. Held:

1. The appellant enumerates as error the denial of her pre-trial motion to suppress Agent Whitley's identification testimony, arguing that the showup at the jail was both impermissibly suggestive and violative of her right to counsel and that it irreparably tainted Whitley's ability to identify her as the person who had sold him the controlled substance. We find these contentions to be without merit.

"[T]he Sixth Amendment right to counsel clearly does not attach simply because the accused is in custody, or has been arrested. [Cit.] Rather, the Sixth Amendment right to counsel exists to protect the accused 'during trial-type confrontations with the prosecutor' and thereafter." Ross v. State, 254 Ga. 22, 27, 326 S.E.2d 194 (1985). "There is no right to counsel at a pre-indictment lineup, even when held subsequent to an arrest, because the adversary judicial criminal proceedings have not yet begun. [Cits.]" Davis v. State, 176 Ga.App. 650, 651, 337 S.E.2d 431 (1985).

With regard to the suggestiveness of the showup, the trial court was authorized to conclude that the agent's numerous prior viewings of the appellant established an independent basis for his in-court identification of her. "Even if the pretrial identification is tainted, the in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin. [Cits.]" Hamilton v. State, 180 Ga.App. 284, 285, 349 S.E.2d 230 (1986). The fact that the appellant's name was supplied to the agent by other law enforcement officers would not affect the integrity of his identification testimony, absent a showing that his in-court identification was based upon an impermissible suggestion by another that she was the seller. See Smith v. State, 192 Ga.App. 144(2), 384 S.E.2d 677 (1989). Finally, assuming arguendo that the agent should not have been allowed to testify concerning his identification of the appellant during the showup itself, we hold that the admission of his testimony in this regard was harmless in the context of his remaining identification testimony. See generally Johnson v. State, 238 Ga. 59, 230 S.E.2d 869 (1976).

2. The evidence, construed in the light most favorable to the verdict, was sufficient to enable a rational trier of fact to find the appellant guilty of the offense charged beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Accordingly, the trial court did not err in denying her motion for directed verdict.

3. The trial court did not err in refusing to give the appellant's requested charges concerning the factors to be considered in weighing identification testimony. The court gave the charge on this issue which appears in the Suggested Pattern Jury Instructions prepared by the Council of Superior Court Judges of Georgia (Vol. II, Criminal Cases, pp. 52-53, Nov. 1984). Inter alia, this lengthy charge enumerates the following factors as being among those which may be considered in assessing the reliability of identification testimony: "a. The opportunity of the witness to view the alleged perpetrator at the time of the alleged incident; b. The witness' degree of attention toward the perpetrator at the time of the alleged incident; c. The level of certainty demonstrated by the witness as to his or her identification; d. The possibility of mistaken identity; e. Whether the witness' identification may have been influenced by factors other than the view had by the witness, if any, at the time of the alleged incident; f. Whether the witness, on any prior occasion, has failed to identify the defendant in this case as the alleged perpetrator." Id.

The appellant does not contend that any portion of this charge was erroneous or inappropriate but contends that she was also entitled to instructions emphasizing, among other things, the possibility of human error or mistake and the fact that an identification made by picking an individual out of a group generally is more reliable than one which results from a one-on-one showup. We hold that to the extent the additional instructions sought by the appellant were not covered by the court's charge, they were unduly argumentative. See generally Camp v. State, 181 Ga.App. 714, 716, 353 S.E.2d 832 (1987).

4. For the purpose of demonstrating that her hair had not been curly on November 18, 1989, the appellant was allowed to play a videotape to the jury depicting her presence at a family gathering which had purportedly taken place during Thanksgiving of 1989. Sh...