State v. Glass, S05A1206.
| Decision Date | 03 October 2005 |
| Docket Number | No. S05A1206.,S05A1206. |
| Citation | 279 Ga. 696,620 S.E.2d 371 |
| Parties | The STATE v. GLASS et al. |
| Court | Georgia Supreme Court |
Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Deputy Dist. Atty., Ronald Steve Boyter Jr., Asst. Dist. Atty., Anne Elizabeth Green, Hon. Thurbert E. Baker, Atty. Gen., for Appellant.
Jonathan Reuven Melnick, Jonathan R. Melnick, P.C., Kimberly A. Dymecki, Theodore Johnson, Atlanta, for Appellee.
The State appeals the trial court's grant of a motion to exclude certain evidence in the prosecution of Ernest Glass, Jr. See OCGA § 5-7-1. Finding that the grant of the motion was improper, we reverse.
Lisa Mosby was shot and killed in a drive-by shooting. Based on a photographic line-up, witnesses identified Earnest Glass, Jr. and co-indictees John Philpot and Lizzie Philpot as the occupants of the automobile from which the shots were fired, and Glass as the shooter. Glass moved to exclude evidence of his identity derived from the photographic line-up from use at trial. The trial court granted the motion as to witness Anthony Floyd, denying the motion as to other witnesses.
The line-up was conducted three days after the shooting.1 A detective went to the area of the crime carrying photographs of Glass and five others, and separately showed the photographs to two witnesses, Brown and Mitchell. Each identified Glass as one of the persons in the car. Floyd was shown the photographs close to an hour later. Floyd testified that before he saw the photographic array, Mitchell told him that the line-up contained a photograph of "Man," an alias of Glass's. Although Floyd's testimony was at times contradictory, and Mitchell denied telling Floyd that a photograph of "Man" was in the line-up, there was testimony supporting the court's factual determination that Mitchell had told Floyd that Glass's photograph was in the line-up.
If an out-of-court identification by a witness is suggestive and conducive to a "`very substantial likelihood'" of misidentification, evidence of that out-of-court identification violates due process and is inadmissible at trial. Similarly, if the same suggestive out-of-court identification can be said to lead to "`a very substantial likelihood of irreparable misidentification,'" an in-court identification of the defendant would also violate due process and would be inadmissible. With regard to evidence of either the out-of-court or in-court identification, "[i]t is the likelihood of misidentification which violates a defendant's right to due process." In determining whether there is a substantial likelihood of misidentification, the "totality of the circumstances" is to be considered. Under this test, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Moreover, whether the witness knows the defendant is a critical factor in determining the reliability of an identification.
State v. Hattney, 279 Ga. 88, 89, 610 S.E.2d 44 (2005) (Citations and punctuation omitted). "A court need not consider whether there was a substantial likelihood of misidentification if it finds that the identification procedure was not impermissibly suggestive." Williams v. State, 272 Ga. 828, 829(2), 537 S.E.2d 39 (2000).
The trial court ruled that the length of time that passed after Mitchell and Brown viewed the line-up and before Floyd viewed it, the fact that the three men were not "sequester[ed]" during that time, and the fact that the State could not "quantify" any contact Floyd had with the two men during that time, prevented the State from proving that Floyd's identification of Glass in the...
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Small v. State
...that "both of th[e] witnesses knew [the defendant] and had seen him on multiple occasions before the shooting."); State v. Glass , 279 Ga. 696, 620 S.E.2d 371, 373–74 (2005) (holding that identification of defendant who killed the witness's neighbor in a drive-by shooting was reliable becau......
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Small v. State
...was that "both of th[e] witnesses knew [the defendant] and had seen him on multiple occasions before the shooting."); State v. Glass, 620 S.E.2d 371, 373-74 (Ga. 2005) (holding that identification of defendant who killed the witness's neighbor in a drive-by shooting was reliable because the......
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Glass v. the State., S11A1031.
...appealed the trial court's grant of a motion to suppress a photo identification of appellant by a witness ( State v. Glass, 279 Ga. 696, 620 S.E.2d 371 (2005)), appellant and his co-indictees faced a jury trial in December 2006. The jury found appellant guilty on all counts and, in January ......
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Burdett v. State
...or waived. Discerning no error, we affirm. This appeal presents a question of law, which we review de novo. State v. Glass, 279 Ga. 696, 697, 620 S.E.2d 371 (2005). The record shows that Burdett was indicted in the Superior Court of Gwinnett County during the May 2005 term of court on charg......