Sparks v. State

• Decision Date: 04 December 1987
• Docket Number: No. 75620,75620
• Citation: Sparks v. State, 363 S.E.2d 631, 185 Ga.App. 225 (Ga. App. 1987)
• Parties: SPARKS v. The STATE.
• Court: Georgia Court of Appeals

Page 631

363 S.E.2d 631

185 Ga.App. 225

SPARKS v. The STATE.

No. 75620.

Court of Appeals of Georgia.

Dec. 4, 1987.

Bentley C. Adams III, Thomaston, for appellant.

Johnnie L. Caldwell, Jr., Dist. Atty., for appellee.

DEEN, Presiding Judge.

This case concerns the armed robbery of a neighborhood "beer store." The sole clerk on duty was stocking the shelves when he was surprised by a man who pointed a pistol at him and ordered him to give him the contents of the cash drawer. During the transaction the clerk fell to the floor, striking his head on a sharp corner and sustaining an injury. The robber escaped with $302 in cash. A young man sitting in a car parked nearby saw the robber emerge from the store and subsequently made positive identification of appellant as the perpetrator.

Only a few minutes after the incident was reported, police picked up a person in the neighborhood, one Stewart, who in a general way fit the description the clerk/victim had given of his assailant. The victim, still somewhat dizzy from the blow to his head, tentatively identified the captive as the robber. Some half-hour later, one of the investigating officers, who had had his memory jogged by the victim's description of the assailant's "bumpy" cheeks, returned to the store carrying a photograph of appellant and those of four other persons of generally similar appearance. The officer took appellant's photograph from his pocket and laid it on the counter and was in the process of removing the other four from his pocket when the victim positively identified the photograph of appellant as his assailant. The next day the victim picked appellant's photograph from a folder containing pictures of five different males of generally similar appearance and again made a positive identification, emphasizing the distinctiveness of the "bumpy" cheeks.

After trial and conviction on counts of aggravated assault, possession of a firearm by a felon, and armed robbery, the case was appealed to this court in 1986, appellant enumerating as error the denial of his motion to suppress the pretrial identification of his photograph; the imposition of separate sentences for armed robbery and the allegedly lesser included offense of aggravated assault; and the denial of his motion for mistrial based on the prosecutor's use of peremptory challenges for the alleged purpose of excluding blacks from the jury, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed. 2d 69 (1986). The record showed that the trial court had overruled defense counsel's objections to the exclusion of blacks without first requiring the prosecuting attorney to give an explanation for his exercise of peremptory challenges. This court therefore remanded the case for proceedings consistent with the mandate of Batson and did not address the remaining enumerations of error.

On remand the prosecutor stated specific "racially neutral" reasons (in each instance, that the prospective juror was somehow related to the defendant or was in some way involved with the criminal justice system) for having rejected each of the black persons eliminated by peremptory challege, and the trial court held that there had been no violation of appellant's constitutionally guaranteed rights to due process, equal protection, and trial by an impartial jury. Sparks then appealed to this court for review of the remaining enumerations of error. Held:

1. The State concedes that, in the fact situation of the instant case, appellant is correct in contending that aggravated assault (here, assault with a deadly weapon) was a lesser offense included in armed robbery; that the aggravated assault charge therefore merged with that of armed robbery; and that the trial court erred in imposing separate, consecutive sentences for each offense. We agree that, under OCGA § 16-1-7, this was error and that the case must once again be remanded, so that the conviction and sentence on the aggravated assault charge may be vacated. See OCGA § 16-1-6 (1); Hambrick v. State, 256 Ga. 148, 150, 344 S.E.2d 639 (1986); Young v. State, 177 Ga.App. 756, 341 S.E.2d 286 (1986).

2. Appellant contends that the victim's pretrial identification of his photograph violated the protections mandated in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and related cases. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Supreme Court held, at 384, 88 S.Ct. at 971, that "convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside ... only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Thus there is "a two-step inquiry": (1) whether there was an impermissibly suggestive photographic identification procedure, and (2) if so, whether this resulted in a substantial likelihood of irreparable misidentification. Clark v. State, 149 Ga.App. 641, 643, 255 S.E.2d 110 (1979). "It is...