An indiсtment was returned against Charlie Perkins and Stanley Stewart charging them with the commission of armed robbery and aggravated assault upon Zimbrick and aggravated assault upon Fagler.
Perkins was found guilty of all three counts. The trial court ordered the Zimbrick assault merged with the armed robbery and sentenced Perkins to life imprisonment on it plus 20 years’ imprisonment on the Fagler assault. On motion for new trial, the court merged the Fagler assault with the armed robbery and imposed sentences of 20 years’ imprisonment on the armed robbery and the Zimbrick assault.
Fagler and Zimbrick are two undercover narcotics officers employed by the City of Atlanta Police Depаrtment. Between 8:00 and 9:00 p.m. on December 2, 1992, they drove a truck to an apartment complex on Bankhead Highway to make a street-level drug buy. Fagler was driving and Zimbrick was sitting in the passenger seat. When they entered the driveway, the lights of the truck illuminated three blaсk males leaning into the driver’s window of another vehicle. The area was also illuminated by street lights and apartment porch lights. It аppeared that the driver of the other vehicle had just made a drug buy.
After the other vehicle left, the black males apрroached the driver’s side of the officers’ truck. Defendant asked “how many you want?” The officers gave him $20 and told him they wanted two dime *119 bags. Defendant grabbed the money and stepped away from the vehicle. He brandished a large handgun, shoved it back in the window, pointed it at Fagler’s head, and told them to “give it up.” After Zimbrick turned over $180, Stewart started shouting “shoot him, shoot him.” Fagler grabbed defendant’s gun, аnd a struggle ensued in which Fagler would push the gun out of the truck and defendant would push it back in. During this struggle, defendant pointed the gun at Zimbrick and attеmpted to shoot him, but the gun would not discharge. While this was happening, Fagler retrieved his gun and fired it twice, and defendant fled. Afterward, Zimbrick found Stewart on the ground. He identified defendant as the gunman, as did a resident of a nearby apartment who observed the robbery. The rеsident testified that defendant passed by her apartment and spoke to her as he was fleeing the scene.
Between one-and-one-half and two hours after the robbery, Zimbrick and Fagler viewed photographs of defendant’s brother Cedric and defendаnt. They first looked at the photograph of Cedric and determined he was not the gunman. When they looked at defendant’s photоgraph, they immediately identified him as the gunman.
1. Defendant contends that the officers’ in-court identification should have been supрressed in that it was tainted by an impermissibly suggestive photographic identification procedure.
The display of a single photograph is impermissibly suggestive.
Bradley v. State,
Both Fagler and Zimbrick testified that they got a good look at defendant for several minutes in ample lighting; that they are undercover police officers who focused their attention on the suspects, pаrticularly the defendant, because the officers knew from the outset *120 that they would later be required to make an identification; that they were 100 percent sure of their identification of him; and that their in-court identification was based upon their recollеction of the robbery rather than their viewing of his photograph shortly after the robbery. This evidence established an independent basis for the officers’ in-court identification. Id. at 621 (2).
Perkins argues that, under the component of the “totality of the circumstances” test concerning the accuracy of the witness’ description of the criminal, there was a substantial likelihood of misidentificаtion, in that the officers’ prior description of defendant was inaccurate. Fagler stated in his police report that dеfendant was 511" to 61" and weighed approximately 200 pounds, and Zimbrick stated in his report that defendant weighed approximately 195 to 215 pounds, whereas defendant testified that he is 5'9" tall and weighs 159 pounds. However, Fagler testified that it was winter and defendant was wearing bulky сlothing in order to make himself look larger and thus more intimidating and that this could very easily make a 170 or 180-pound man look like he weighed 200 pounds.
Given this explanation, we cannot say that under the totality of the circumstances there was substantial likelihood of irreparable misidentification. “Short of that point, such evidence is for the jury to weigh.”
Manson v. Brathwaite,
2. Defendant contends that the court improperly sentenced him by not merging the sentences for both convictions of aggravated assault with the conviction of armed robbery.
A defendant may not be convicted of more than one crime if one crime is included in the other. OCGA § 16-1-7 (a) (1). Aggravated assault is not includеd in armed robbery as a matter of law, but it may be included as a matter of fact.
Hambrick v. State,
Judgment affirmed.