Thornton v. State

• Decision Date: 06 January 1977
• Docket Number: No. 31524,31524
• Citation: 238 Ga. 160,231 S.E.2d 729
• Parties: Sammie THORNTON v. The STATE.
• Court: Georgia Supreme Court

Page 729

231 S.E.2d 729

238 Ga. 160

Sammie THORNTON v. The STATE.

No. 31524.

Supreme Court of Georgia.

Jan. 6, 1977.

Word, Nicholson & Cook, R. H. Nicholson, Carrollton, for appellant.

William F. Lee, Jr., Dist. Atty., Newnan, Arthur K. Bolton, Atty. Gen., for appellee.

PER CURIAM.

This appeal is from appellant's conviction for armed robbery in the Superior Court of Carroll County for which he received a sentence of 20 years imprisonment. Some of the facts in the case are in dispute. However, the basic chronology of what happened is as follows: On October 3, 1975, a black male, armed with a shotgun, entered the Northside branch of the Carrollton State Bank and proceeded to rob it. The robber put the shotgun to the head of a bank employee, Wanda Williams, and instructed the branch manager, Charles White, to come out of his office. After threatening to shoot Ms. Williams if an alarm were sounded, he tossed a sack to the floor and told a bank customer to take it to the teller's window and fill it with money. The teller put approximately $4,000 in the bag and it was returned to the robber. The robber then fled from the scene in a 1962 or 1963 light blue or light green Pontiac.

On October 5, 1975, the police received a tip from an informer which identified the appellant as the bank robber. The appellant was arrested on October 7, and the two bank employees identified him as the robber at a lineup on the same day. Appellant was indicted by the Carroll County grand jury for armed robbery on October 8, 1975, and counsel was appointed to represent the appellant the next day.

1. Appellant's first two enumerations complain of the denial by the trial court of a defense motion to suppress the pretrial identification of appellant made by the two bank employees. Appellant bases his argument for suppression on two theories: First, that he was denied his right to counsel at the lineup contrary to the Sixth and Fourteenth Amendments of the United States Constitution and Art. I, § I, Par. 5 of the Georgia Constitution, Ga.Code Ann. § 2-105 (Rev.1973); and second, that the identification procedures used were so impermissibly suggestive that they constituted a denial of due process of law.

Appellant's initial argument is that, because he was the only suspect in the case, adversary judicial proceedings had been initiated and the failure to provide him with counsel at the lineup was error. Generally, a pre-indictment lineup does not trigger the right to counsel. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Painter v. State, 237 Ga. 30, 31, 226 S.E.2d 578 (1976). However, see Hicks v. State, 232 Ga. 393, 401, 207 S.E.2d 30 (1974). We need not decide whether the circumstances of this preindictment lineup would require counsel because appellant was offered counsel prior to his lineup and consented, in writing, to participate without the presence of an attorney. No error is shown here.

The appellant argues further that the pre-trial 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 two eyewitnesses were shown photographic displays immediately prior to the lineup. Appellant urges that this procedure so tainted the identification that the in-court identification must be set aside. The test of a photographic array is whether the 'procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' identification.' Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). A photographic array can be suggestive when used close in time to a lineup. However, we cannot conclude that the procedure used in this case satisfies the Simmons test and offended due process. The record is devoid of specifics which would substantiate a claim of misidentification. Conversely, it should be noted that both witnesses testified that they were able to identify the appellant as the criminal from his photograph. By itself, this procedure was not impermissibly suggestive. Cf. Heyward v. State, 236 Ga. 526, 224 S.E.2d 383 (1976), and Bennett v. State, 530 S.W.2d 511 (Tenn., 1975).

The second allegation is that the lineup itself was suggestive. The transcript does not establish that the lineup was impermissibly suggestive. Cf. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), and Payne v. State, 233 Ga. 294, 210 S.E.2d 775 (1974). The decisive question is whether the identifications were reliable under the totality of the circumstances. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). See also, Heyward, supra, 236 Ga. at p. 528, 224 S.E.2d 383. The transcript does contain conflicts in the evidence on the identity of appellant as the robber. However, we cannot conclude, as a matter of law, that there was such a substantial likelihood of misidentification that appellant was denied a fair trial. It all comes down to questions of credibility presented by the identification testimony of the two eyewitnesses which were resolved by the jury against the appellant. We hold that the totality of the circumstances shown here does not establish that appellant was denied a fair trial. The evidence authorized, but did not require, the jury to conclude that appellant was the perpetrator of the bank robbery. These enumerations of error are, therefore, without merit.

2. Appellant next contends that it was error for the trial court to refuse to order disclosure of the identity of the informer whose tip led to his arrest. A Brady motion was made prior to trial requesting this information. At the hearing, the prosecutor asserted the so-called informer's privilege on behalf of the State. The State argued that the tipster in this case was a mere informer and that identity was absolutely privileged. Counsel for the appellant presented the theory that another individual committed the robbery and that the informer could possibly be part of a conspiracy to frame the appellant. The argument was that this other person lived in the same trailer park as appellant, that he lived there with his mother and girl friend, that he disappeared the day after the robbery and was still missing, that the informer was rumored to be female, and that the missing person closely resembled the appellant. The trial judge accepted the prosecutor's argument and declined to grant the motion without hearing evidence by deciding that the identity of the informer was absolutely privileged.

The question before us is novel because disclosure was sought pursuant to a Brady motion. Usually the privilege is invoked during a hearing on the exigency of a search warrant or an arrest warrant. See, e.g., Keith v. State, 238 Ga. 157, 231 S.E.2d 727 (1977); Scull v. State, 122 Ga.App. 696, 178 S.E.2d 720 (1970). In this case, however, the Brady motion brings the basic issue inherent in the informer's privilege into sharp focus. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1962), held that 'the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment . . ..' Brady, therefore, requires the disclosure of evidence favorable to a defendant if the evidence is material to guilt or punishment. Moore v. Illinois, 408 U.S. 786, 794, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). The evidence is material if it 'is of sufficient significance to result in the denial of the defendant's right to a fair trial' if not disclosed. United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976). Accord, Hicks v. State, 232 Ga. 393, 396, 207 S.E.2d 30 (1974). Considered from this perspective, an absolute privilege against disclosure in every case involving an informer is impermissible where a Brady motion is made.

The informer's privilege is grounded in Code Ann. § 38-1102 (Rev.1974) which states that no official shall be 'called on to disclose any State matters of which the policy of the State and the interest of the community require concealment.' The public policy underlying this privilege is to protect and encourage the flow of information to law enforcement officials.

The privilege was first judicially recognized in Georgia in Anderson v. State, 72 Ga.App. 487, 493, 34 S.E.2d 110 (1945), where cross-examination as to the identity of an informer was held properly denied. Subsequently, Crosby v. State, 90 Ga.App 63, 64, 82 S.E.2d 38 (1954), distinguished between a 'decoy'-a person used to obtain evidence (the informer-participant) or to establish facts (the informer-witness) upon which to base a prosecution and an informer (the mere tipster)-one who provides information about criminal activity. Crosby held that the identity of a decoy was not privileged and must be revealed, and in Hodges v. State, 98 Ga.App. 97, 105, 104 S.E.2d 704 (1958), the identity of an informer was held to be absolutely privileged. These absolute rules had generally been followed (Pass v. State, 227 Ga. 730(4), 182 S.E.2d 779 (1971); Morgan v. State, 211 Ga. 172, 177, 84 S.E.2d 365 (1954); Stanford v. State, 134 Ga.App. 61(1), 213 S.E.2d 519 (1975); Thomas v. State, 134 Ga.App. 18(1), 213 S.E.2d 129 (1975); Welch v. State, 130 Ga.App. 18, 19(3), 202 S.E.2d 223 (1973); Morrison v. State, 129 Ga.App. 558(5), 200 S.E,2d 286 (1973); Butler v. State, 127 Ga.App. 539(2), 194 S.E.2d 261 (1972); Staggers v. State, 101 Ga.App. 463, 465, 114 S.E.2d 142 (1960); Smallwood v. State, 95 Ga.App. 766(1), 98 S.E.2d 602 (1957); Roddenberry v. State, 90 Ga.App. 66, 82 S.E.2d 40 (1954)), until the United States Supreme Court held, in a case involving a decoy, that the due process concept of fundamental fairness required that the public interest in protecting the flow of...