Webb v. State
| Decision Date | 29 August 2001 |
| Docket Number | No. A01A1020.,A01A1020. |
| Citation | 251 Ga. App. 414,554 S.E.2d 563 |
| Court | Georgia Court of Appeals |
| Parties | WEBB v. The STATE. |
OPINION TEXT STARTS HERE
Virginia W. Tinkler, Decatur, for appellant.
J. Tom Morgan, Dist. Atty., Robert M. Coker, Gregory K. Schwartz, Asst. Dist. Attys., for appellees.
Omar Webb was found guilty by a jury of two counts of armed robbery and three counts of aggravated assault which occurred when he and two accomplices invaded a residence and assaulted and robbed the occupants at gunpoint. Webb claims the trial court erroneously admitted identification testimony that was tainted by a suggestive pretrial photographic display, and that the properly admitted evidence was insufficient to support the guilty verdicts. We find no error and affirm the convictions.
In support of the charges, the State produced testimony from the occupants of an apartment that three men wearing black ski-type masks over their faces and tape on their fingers forced their way into the apartment and held three of the occupants at gunpoint while stealing money from two of them. One of the occupants called 911 when the men entered the apartment, and police responded to the call while the robberies and assaults were in progress. All three men attempted to escape from police by jumping out of the second floor window of the apartment, but they were spotted by police as they jumped. One of the men, Gregory Miller, was captured by police at the scene, but the other two escaped on foot. Miller was indicted and convicted of the same offenses at a separate trial and called as a witness by the State at Webb's trial.
Miller testified that he drove to the apartment complex in Webb's car with three other men, but he denied any involvement in the robbery and refused to name the other men. At the time of the robbery, a car registered to Webb was found backed into a no-parking zone at the apartment complex with the license tag concealed, the doors unlocked, and the keys in the ignition. Inside the car, police found masking tape shaped as though it had been taped around a person's finger, and a receipt from Wal-Mart dated the day of the robbery showing the purchase of three items denoted as "face mask bl."
The occupants gave police a description of the robbers, including information that they were African-American males wearing ski masks over their faces and tape on their fingers, and that one of them had a scar over his left eye that was visible through the eye opening of the ski mask. Webb, who is African-American and has a scar over his left eye and otherwise matched the description given by the occupants, was arrested and charged with the assaults and robberies. Although the occupants never identified Webb as one of the men who robbed them, they testified that Webb's scar looked like the scar visible through the ski mask of one of the robbers, and that he was about the same size as the robber with the scar.
1. Webb moved to suppress all testimony from the occupants that his scar looked like the robber's scar on the basis that the testimony was derived from an unnecessarily suggestive photographic display by police which resulted in a substantial likelihood of misidentification under the procedures set forth in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). He claims the trial court erred by denying his motion.
Webb pointed to the fact that, prior to trial, the prosecutor showed the occupants a single photograph of him without a mask, which showed the scar over his left eye, and asked the occupants if they recognized the scar. The occupants said that the scar looked like the scar they had seen on the masked robber, but none of them was able to identify Webb as the masked robber from the appearance of the scar or on any other basis.
We agree that, if the State had derived testimony identifying Webb as the robber from the display of the lone photograph, then due process would require that the procedural safeguards of Neil v. Biggers be satisfied before the identification testimony could be admitted. However, we find no basis for applying the Neil v. Biggers procedures in this case because no testimony identifying Webb as the robber was derived by the State from the photographic display. This is not a case where the scar visible on the masked robber was so unique that the occupants could identify Webb as the robber by testifying it was the same scar. Rather, the occupants could only say Webb's scar looked like or was similar to the scar they saw on the robber. Thus, the scar in this case was not the basis for an eyewitness identification of Webb as the robber, but was simply one...
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...1. See Cockrell v. State, 248 Ga.App. 359(1), 545 S.E.2d 600 (2001). 2. See id. 3. OCGA § 16-8-41(a). 4. See Webb v. State, 251 Ga.App. 414, 416(2), 554 S.E.2d 563 (2001). 5. See State v. Epps, 267 Ga. 175, 176-177, 476 S.E.2d 579 (1996). 6. Cockrell, supra at 361(1)(a), 545 S.E.2d 600. 7. ......
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