491 S.E.2d 836 | Ga. Ct. App. | 1997
Jason John Piefer was convicted of one count of armed robbery. Enumerating two errors, Piefer challenges the in-court identification procedure and a jury instruction.
On appellate review, the evidence which follows must be viewed in a light most favorable to the verdict. Cline v. State, 221 Ga. App. 175 (471 SE2d 24) (1996). At gunpoint, Piefer and his co-defendant, Michael Dodge, robbed a convenience store clerk. Piefer placed a weapon on the end of the victim’s nose and demanded cash. A juvenile, who remained outside as the getaway driver, testified that he overheard Piefer yell, “Give me the f-king money.” During their escape, Piefer and Dodge tossed some of their clothing out a car window. Investigators subsequently recovered a hat, a sweatshirt, and a flannel shirt, which the victim recognized as being worn by the perpetrators. The victim was not able to identify either assailant but remembered their attire and mannerisms.
According to the juvenile, Piefer was wearing the blue checked, long sleeve flannel shirt and a Mighty Ducks hat, and Dodge was wearing a pullover sweater and an Atlanta Braves hat. He further testified that Piefer had the gun in his hand when he entered and when he exited the store. Dodge, who pleaded guilty to robbery by intimidation, identified Piefer as both the instigator and the gunman. The testimony of Dodge and the juvenile was corroborated by several other witnesses, including the detective who initially solved the case when interviewing the juvenile for unrelated crimes. According to Dodge’s mother, on the night of the robbery, she overheard the young men on the porch of her home discussing the details of what transpired. A mutual friend of the perpetrators testified that when they visited his home, they bragged about committing the armed robbery. During their visit, Piefer reenacted how he had held the gun on the victim. Over objection, the prosecutor had Piefer try on the Mighty Ducks hat and the flannel shirt. At that point, the victim still was unable to identify Piefer as one of the robbers, testifying only that his appearance seemed “in the ballpark.” The victim readily conceded that “a thousand or a million other people” could be in that ballpark. Later, at the request of defense counsel, the juvenile tried on the same clothes, and Dodge tried on the shirt. Held:
1. Piefer contends that his constitutional protection against self-
2. Piefer contends that the trial court erred in its instruction by requiring the jury to reach a unanimous verdict as to the offense of armed robbery before considering the lesser included offense. Although it is error to require a jury to unanimously agree on the greater offense before considering a lesser offense, the trial court imposed no such requirement in this case. Cantrell v. State, 266 Ga. 700, 703 (469 SE2d 660) (1996); Brewer v. State, 224 Ga. App. 656, 658 (3) (481 SE2d 608) (1997). The record shows that the trial court did not insist on unanimous agreement by the jury before it could proceed to the lesser included offense of robbery by intimidation. Cantrell, 266 Ga. at 703. Having examined the instruction as a whole, we find no error.
Judgment affirmed.