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Larceny. Fulton Superior Court. Before Judge Etheridge.
1. The in-court identification of defendant adduced at the trial of this case was not, under all the facts relating to identification, constitutionally inadmissible.
2. Under the holding in Cummings v. State, 226 Ga. 46, 50 (172 SE2d 395), there is no constitutional infirmity in the procedure whereby the same jury determines the defendant's innocence or guilt as well as recommends his punishment.
James N. Moye was indicted, tried, convicted and sentenced for motor vehicle and credit card theft. He appeals, enumerating as error the allowing over objection of a witness' in-court identification of him in alleged violation of his constitutional rights, and the submitting to the one jury the question of his guilt or innocence as well as the question of the punishment to be given him.
With regard to the indictment for credit card theft, Ruth Ann Davis, an employee of Rich's, Inc. at its Belvedere store, testified that she sold a Schick 2200 electric razor on credit to a person who, representing himself to be Dan Holiday, handed her a Rich's credit card with the name Dan Holiday on it. When asked if she saw the person in the courtroom who signed the sales ticket, defendant's counsel objected and the jury was excused. The basis of the objection was that the in-court identification being attempted was a violation of due process in that it did not appear that a prior out-of-court lineup had been conducted; that it was a violation of due process to allow the witness to make an in-court identification when she realized the person on trial must be the one sitting at the defense table with no coat and tie on; and that in order to satisfy due process requirements the witness should have picked the defendant out of a pre-trial line-up and then have testified at the trial that he was the person she had previously identified.
An examination of the witness by the court and counsel out of hearing of the jury ensued, at which the witness testified that she had never been asked by the authorities to identify the defendant. On the first day of the trial, however, before these proceedings began, she was seated in the courtroom and saw the defendant come in the door. He was not in handcuffs and not in the custody or company of anyone as far as she noticed. Upon seeing him she had no question that he was the defendant because she recognized him as the man to whom she sold the razor. As she stated, "Yesterday when he came in, when I saw him, whenever that was, it was the man from Belvedere. There is no doubt in my mind who I sold the razor to." It was not until the second day of the trial, when the present testimony was given, that she saw the defendant in the anteroom in handcuffs in the company of a Mr. Bailey.
The objection to the in-court identification was overruled, and the jury returned. The witness testified on direct and cross examination that she was recalled from a break to assist a customer; that when she came out of the lounge he met her one department up and she walked back with him to her department; that the man did not examine the merchandise closely or try it out but pointed to a razor and stated that he would like one; that it was quite out of the ordinary for a man to know what razor he wanted to buy, as "most people like for you to describe the razor and show them exactly how it works and compare it with other razors"; that she spent about five minutes with him and observed that he was dressed in black-black T-shirt, black trousers, black socks, black shoes and that he was approximately 5'6" tall, weighed approximately 175 pounds, and had brown hair combed straight back; that at the time she was "impressed by the fact that he was all dressed in black and that he did not require any assistance in the selection of a razor"; that approximately one-half hour after the sale of the razor she received a call from security officers at Rich's North DeKalb store and described to them the man to whom she sold the razor; that approximately a week before the actual trial (apparently when defendant obtained a continuance) the witness came into the courtroom and saw the defendant seated in the jury box, without handcuffs and in no one's custody to her knowledge, but she "knew who it was"; that prior to this trial she had not been to a line-up, nor had photographs been shown to her, nor had she been asked by the authorities to identify anyone. When asked if she saw the person in the courtroom to whom she sold the razor, she identified the defendant and testified that the identification was made solely on the basis of the incident at Rich's Belvedere store.
The jury found defendant guilty of motor vehicle theft and credit card theft, and the same jury also recommended sentences of four years and three years for the respective offenses. The trial court sentenced accordingly and ordered that the two sentences would run consecutively.
1. In his brief defendant argues that an identification procedure which involves only a face-to-face confrontation in the courtroom after the witness had observed the accused in situations indicating that he was the man on trial, with no opportunity for comparison or selection of the accused from a group, is so unnecessarily suggestive and conducive to irreparable mistaken identification as to constitute a denial of due process of law; that there was ample time prior to trial in which the prosecution could have arranged an adequate line-up; that independent recollection is a relevant factor in determining whether an identification is accurate, but that the facts of this case indicate that there was no opportunity for the recollection of the eyewitness to operate independently of the prejudice inherent in a situation where the accused is led into the courtroom wearing handcuffs, where he is the only person sitting in front of the railing at counsel table not wearing a coat and tie, and where he is paraded up and down the hallway leading to the courtroom in handcuffs and in custody of the sheriff.
This attack must fail. A line-up identification, or identification from a group of photographs, is not a prerequisite to every in-court identification. See, e.g., Stovall v. Denno, 388 U. S. 293 (87 SC 1967, 18 LE2d 1199); Simmons v. United States, 390 U. S. 377 (88 SC 967, 19 LE2d 1247); Biggers v. Tennessee, 390 U. S. 404 (88 SC 979, 19 LE2d 1267); United States v. Lipowitz, 407 F2d 597 (CA 3); United States v. Deegan, 406 F2d 217 (CA 2); Asber v. State, 253 A2d 204 (Sup. Ct. Del.); Laury v. State, 260 A2d 907 (Sup. Ct. Del.); People v. Gardner, 35 Ill. 2d 564 (221 NE2d 232); Steel v. State, 246 Ark. 74 (436 SW2d 800); People v. James, 269 Cal. App. 2d 360 (74 Cal. Rep. 856). The test is whether the identification confrontation staged by the law enforcement authorities, judged by the "totality of the circumstances surrounding it," is "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to constitute a denial of due process of law. See, e.g., Stovall v. Denno, supra; Foster v. California, 394 U. S. 440 (89 SC 1127, 22 LE2d 402). Stated conversely, a conviction based upon an in-court identification following a pre-trial identification will be set aside on that ground only if the pre-trial identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, supra. And, if the pre-trial confrontation is accidental and not so arranged by the authorities as to make a resulting identification virtually inevitable, there is no denial of due process (People v. James, supra; Spears v. State, 254 NE2d 196 (Sup. Ct. Ind.)), particularly where no identification is made to the authorities at the time of the confrontation. Steel v. State, supra. Even if the pre-trial identification is "tainted," the in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an "independent origin" (United States v. Wade, 388 U. S. 218 (87 SC 1926, 18 LE2d 1149); Gilbert v. California, 388 U. S. 263 (87 SC 1951, 18 LE2d 1178); People v. Brown, 102 Ill. App. 2d 382 (243 NE2d 341)), such as where the witness discussed with defendant the possible sale of an automobile for about ten minutes before the automobile was stolen. Fitts v. United States, 406 F2d 518 (CA 5). Finally, the principle is clear from the "one-man showup" cases cited above that undue suggestion does not arise merely from the fact that the authorities suspect and now accuse a certain individual. See also State v. Fields, 104 Ariz. 486 (455 P2d 964), where it was held that an in-court identification was not tainted by an identification at a preliminary hearing where the defendants were the only Negroes in the courtroom and appeared in handcuffs with a police officer, and United States v. Moss, 410 F2d 386 (CA 3), where it was held that an in-court identification of the accused was not rendered improper by the fact that he was the only member of his race present in the courtroom.
Under these circumstances, we know of no authority which would authorize a holding that this in-court identification was constitutionally inadmissible.
Enumeration of error 1 is without merit.
2. The second enumeration of error raises the issue of the constitutionality of the procedure whereby the same jury determines the defendant's innocence or guilt as well as recommends his punishment. "The question of whether or not this practice is a violation of rights guaranteed under the Fourteenth Amendment is now pending before the United States Supreme Court. See Maxwell v. Bishop, 385 U. S. 650 (87 SC 768, 17 LE2d 671)." Cummings v. State, 226 Ga. 46, 51, supra. Although the Supreme Court granted certiorari in the Maxwell case to consider, inter alia, the single-verdict procedure (393 U. S. 997), that case has been remanded to the District Court to consider a belatedly-raised Witherspoon issue. 38 U. S. L. Week 3475 (U. S., June 2, 1970). However, the Supreme Court will consider the single-verdict issue in No. 709, Misc., Crampton v. Ohio (38 U. S. L. Week 3478, supra) "at an early date in the 1970 term." Maxwell v. Bishop, 38 U. S. L. Week 3475, supra note 4. At the present time we are bound by Cummings v. State, supra, which decided this issue adversely to defendant's contentions. And see Giaccio v. Pennsylvania, 382 U. S. 399 (86 SC 518, 15 LE2d 447); Spencer v. Texas, 385 U. S. 554, 568 (87 SC 648, 17 LE2d 606).
Enumeration of error 2 is without merit.
Judgment affirmed. Jordan. P. J., and Pannell, J., concur.
Lewis R. Slaton, District Attorney, Tony H. Hight, for appellee.
Hester & Hester, Frank B. Hester, Alston, Miller & Gaines, Jerome Zivan, for appellant.
ARGUED JUNE 2, 1970 -- DECIDED JUNE 11, 1970.
Friday May 22 16:58 EDT

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