Yancey v. State

• Decision Date: 23 April 1974
• Docket Number: No. 28766,28766
• Citation: 205 S.E.2d 282,232 Ga. 167
• Parties: Benjamin YANCEY v. The STATE.
• Court: Georgia Supreme Court

Page 282

205 S.E.2d 282

232 Ga. 167

Benjamin YANCEY v. The STATE.

No. 28766.

Supreme Court of Georgia.

April 23, 1974.

Saul, Blount, & Avrett, Percy J. Blount, Augusta, for appellant.

Richard E. Allen, Dist. Atty., Augusta, Arthur K. Bolton, Atty. Gen., Robert S. Stubbs, II, Executive Asst. Atty. Gen., Richard L. Chambers, William F. Bartee, Jr., Asst. Attys. Gen., G. Stephen Parker, Deputy Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

HALL, Justice.

The sole question presented here by Benjamin J. Yancey's appeal from an armed robbery conviction carrying a 20-year sentence, is whether the in-court identification of Yancey by the victim of the crime was properly admitted or whether, as Yancey contends, the in-court identification was fatally tainted by an illegal pre-trial showup at which Yancey was displayed by the police to the victim at the police station, without an attorney.

Yancey was convicted of the November 27, 1972 armed robbery of the Sturkie Furniture Store. Mr. Carlisle, the store manager, testified that earlier that morning a Negro wearing a white hard hat came into the store, saw Carlisle's pistol, and looked around selecting furniture. He said he would be paid on Friday and would be back then with $100. Instead, he came back about 45 minutes or an hour later with Yancey who, he said, had let him borrow $50 for a down payment. Yancey spent some time with his back to a heater facing Carlisle under fluorescent lights while the first man maneuvered Carlisle into turning his back on Yancey. Yancey then put a gun to Carlisle's back and initiated the robbery. Carlisle's gun, watch and billford were taken, as was money from the cash register, during a perior of about 20 minutes. Carlisle testified that while he faced Yancey, Yancey fired a shot at him from about tive feet making a small hole in his shirt but not wounding him.

Yancey was arrested on December 29, 1972. The record does not make it possible to determine the date, but at some time between the arrest and the indictment, January 15, 1973 Carlisle was asked by police to come to the police station for an unspecified reason. While there he saw and identified Yancey, apparently through the glass door of a room in which Yancey was alone. Carlisle identified Yancey in court as the assailant, and also testified that 'they didn't tell me there was a man coming out that was suspicious of robbing me. When they brought the man out they said 'Have you ever seen that man before?' and I said 'I sure have. I seen that man holding a gun on me. No doubt about it' and my stomach drew up in knots when I glanced out and saw him there just like it did when he had that gun on me.'

The admission of the in-court identification is contended by Yancey in his sole enumeration to be reversible error.

United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, cited by Yancey, all concerned defendants' rights at a post-indictment identification confrontation. Those cases established that where an illegal post-indictment pretrial confrontation was made, the witness' trial testimony about the identification confrontation itself was to be excluded, and the witness' in-court identification was also inadmissible unless the state successfully carried the burden of showing that the in-court identification sprang from an independent and untainted source. Prior to these three cases, the test applicable to out-of-court identifications was one of due...