626 S.E.2d 611 | Ga. Ct. App. | 2006
A jury found Gregory Hall guilty of armed robbery, aggravated assault with intent to rob, and possessing a firearm during the commission of a felony.
1. On appeal from a criminal conviction, Hall no longer enjoys a presumption of innocence.
Viewed in this manner, the evidence shows that at around 1:00 p.m. on February 4, 2003, Robin Howell drove her white Yukon SUV to the parking garage next to the Galyan’s store in Buckhead. Howell exited the truck, walked to the back, and opened the trunk. A man then walked toward her, pulled out a gun, and said, “give me the keys to that car.” Howell dropped the keys, and the man picked them up and drove away in her car.
After her assailant drove away, Howell screamed. She was immediately approached by another woman who called 911 on her cell phone. Police Officer Crane responded to the call, and Howell gave him a description of her attacker, including that he had a very distinctive hairstyle. Specifically, the man had “braided [his] hair into two buns that were fairly large on either side ... [of] the crown of bis head.”
According to Howell, shortly after her Yukon was stolen, she recalled that it was equipped with “OnStar,” and she called the toll free number and reported that her vehicle had been stolen at gunpoint. Officer Crane also spoke with the OnStar operator, and he was told the vehicle was in Stone Mountain and was still moving. OnStar continued to monitor the location of the vehicle and to relay the information to law enforcement. At approximately 2:00 or 2:30 in the afternoon, Officer Poteet saw the stolen car and followed it to a house in DeKalb County. After Poteet arrived, he heard the sound of people fleeing through woods near the house, and he gave chase. Four
John Boykin, who was initially apprehended with Hall, testified at trial. According to Boykin, between 1:00 and 3:00 p.m., Hall picked him up while driving a white Yukon. At some point near Hall’s house, they exited the vehicle. Boykin saw DeKalb police officers make a U-turn as if to approach them, and Hall told him to “go.” Boykin interpreted Hall’s comment as meaning that the Yukon had been stolen.
Hall contends the evidence of his guilt was insufficient. However, given that Hall was found mere hours after the crime was committed, in possession of the stolen vehicle, and matched the description of the perpetrator, we find the evidence more than ample to sustain his convictions.
2. After Hall was apprehended, Howell was shown a photographic lineup from which she identified Hall as her assailant. Prior to trial, Hall made an oral motion to suppress the lineup, arguing that it was impermissibly suggestive. Specifically, he argued that he was the only suspect in the lineup with the unusual hairstyle described by Howell. Initially, the trial court overruled the motion. During trial, however, the court determined that, “out of an abundance of caution,” it was not going to admit the photographic lineup. The court nevertheless concluded that Howell’s identification of Hall was not tainted by having seen the array.
On appeal, Hall argues that the trial court erred in admitting the lineup. It does not appear, however, that the lineup was actually admitted. And even had the lineup been admitted, we would find no basis for reversal.
We will set aside convictions that are based on a pretrial identification by photograph and a subsequent identification at trial only if the photographic lineup was so impermissibly suggestive that there exists a very substantial likelihood of irreparable misidentification.
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*415 confrontation [;] and the length of time between the crime and the confrontation.7
Here, the record shows that Howell saw Hall in daylight conditions. She was able to give a very detailed description of her assailant, including his general age, height, coloring, clothing, and his distinctive hairstyle. When Hall was apprehended shortly thereafter, he matched the description given. Under these circumstances, we find it extremely unlikely that Hall was misidentified.
Judgment affirmed.
For sentencing, the trial court merged the aggravated assault charge with the armed robbery conviction.
See Mullins v. State, 267 Ga. App. 393 (1) (599 SE2d 340) (2004).
See id.
Id.
See Johnson v. State, 265 Ga. App. 777, 777-779 (1) (595 SE2d 625) (2004); Davis v. State, 244 Ga. App. 670, 670-671 (536 SE2d 563) (2000); Mitchell v. State, 242 Ga. App. 177, 178 (1) (529 SE2d 169) (2000).
See Pace v. State, 272 Ga. App. 16, 18 (3) (611 SE2d 694) (2005).
(Punctuation omitted.) State v. Glass, 279 Ga. 696, 697 (620 SE2d 371) (2005).
See Williams v. State, 269 Ga. App. 673, 676-677 (3) (a) (605 SE2d 83) (2004); see also Manning v. State, 250 Ga. App. 187, 190 (1) (550 SE2d 762) (2001); Cantrell v. State, 201 Ga. App. 93, 96 (2) (410 SE2d 193) (1991).
