Thornton v. State

231 S.E.2d 729, 238 Ga. 160, 1977 Ga. LEXIS 940
CourtSupreme Court of Georgia
DecidedJanuary 6, 1977
Docket31524
StatusPublished
Cited by125 cases

This text of 231 S.E.2d 729 (Thornton v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thornton v. State, 231 S.E.2d 729, 238 Ga. 160, 1977 Ga. LEXIS 940 (Ga. 1977).

Opinions

Per curiam.

This appeal is from appellant’s conviction for armed robbery in the Superior Court of Carroll County for which he received a sentence of 20 years imprisonment. Some of the facts in the case are in dispute. However, the basic chronology of what happened is as follows: On October 3, 1975, a black male, armed with a shotgun, entered the Northside branch of the Carrollton State Bank and proceeded to rob it. The robber put the shotgun to the head of a bank employee, Wanda Williams, and instructed the branch manager, Charles White, to come out of his office. After threatening to shoot Ms. Williams if an alarm were sounded, he tossed a sack to the floor and told a bank customer to take it to the teller’s window and fill it with money. The teller put approximately $4,000 in the bag and it was returned to the robber. The robber then fled from the scene in a 1962 or 1963 light blue or light green Pontiac.

On October 5,1975, the police received a tip from an informer which identified the appellant as the bank robber. The appellant was arrested on October 7, and the two bank employees identified him as the robber at a lineup on the same day. Appellant was indicted by the Carroll County grand jury for armed robbery on October 8, 1975, and counsel was appointed to represent the appellant the next day.

1. Appellant’s first two enumerations complain of the denial by the trial court of a defense motion to suppress the pre-trial identification of appellant made by the two bank employees. Appellánt bases his argument for suppression on two theories: First, that he was denied his right to counsel at the lineup contrary to the Sixth and Fourteenth Amendments of the United States Constitution and Art. I, Sec. I, Par. V of the Georgia Constitution, Code Ann. § 2-105 (Rev. 1973); and second, that the identification procedures used were so impermissibly suggestive that they constituted a denial of due process of law.

Appellant’s initial argument is that, because he was the only suspect in the case, adversary judicial [161]*161proceedings had been initiated and the failure to provide him with counsel at the lineup was error. Generally, a preindictment lineup does not trigger the right to counsel. Kirby v. Illinois, 406 U. S. 682 (92 SC 1877, 32 LE2d 411) (1972); Painter v. State, 237 Ga. 30, 31 (226 SE2d 578) (1976). However, see Hicks v. State, 232 Ga. 393, 401 (207 SE2d 30) (1974). We need not decide whether the circumstances of this preindictment lineup would require counsel because appellant was offered counsel prior to his lineup and consented, in writing, to participate without the presence of an attorney. No error is shown here.

The appellant argues further that the pre-trial identification procedures were so impermissibly suggestive that his due process guarantee of a fair trial was violated. This argument rests on two assertions. The first is that the two eyewitnesses were shown photographic displays immediately prior to the lineup. Appellant urges that this procedure so tainted the identification that the in-court identification must be set aside. The test of a photographic array is whether the "procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U. S. 377, 384 (88 SC 967, 19 LE2d 1247) (1968). A photographic array can be suggestive when used close in time to a lineup. However, we cannot conclude that the procedure used in this case satisfies the Simmons test and offended due process. The record is devoid of specifics which would substantiate a claim of misidentification. Conversely, it should be noted that both witnesses testified that they were able to identify the appellant as the criminal from his photograph. By itself, this procedure was not impermissibly suggestive. Cf. Heyward v. State, 236 Ga. 526 (224 SE2d 383) (1976), and Bennett v. State, 530 SW2d 511 (Tenn., 1975).

The second allegation is that the lineup itself was suggestive. The transcript does not establish that the lineup was impermissibly suggestive. Cf. Foster v. California, 394 U. S. 440 (89 SC 1127, 22 LE2d 402) (1969), and Payne v. State, 233 Ga. 294 (210 SE2d 775) (1974). The decisive question is whether the identifications were reliable under the totality of the [162]*162circumstances. Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401). See also, Heyward, supra, at p. 528. The transcript does contain conflicts in the evidence on the identity of appellant as the robber. However, we cannot conclude, as a matter of law, that there was such a substantial likelihood of misidentification that appellant was denied a fair trial. It all comes down to questions of credibility presented by the identification testimony of the two eyewitnesses which were resolved by the jury against the appellant. We hold that the totality of the circumstances shown here does not establish that appellant was denied a fair trial. The evidence authorized, but did not require, the jury to conclude that appellant was the perpetrator of the bank robbery. These enumerations of error are, therefore, without merit.

2. Appellant next contends that it was error for the trial court to refuse to order disclosure of the identity of the informer whose tip led to his arrest. A Brady motion was made prior to trial requesting this information. At the hearing, the prosecutor asserted the so-called informer’s privilege on behalf of the state. The state argued that the tipster in this case was a mere informer and that identity was absolutely privileged. Counsel for the appellant presented the theory that another individual committed the robbery and that the informer could possibly be part of a conspiracy to frame the appellant. The argument was that this other person lived in the same trailer park as appellant, that he lived there with his mother and girl friend, that he disappeared the day after the robbery and was still missing, that the informer was rumored to be female, and that the missing person closely resembled the appellant. The trial judge accepted the prosecutor’s argument and declined to grant the motion without hearing evidence by deciding that the identity of the informer w'as absolutely privileged.

The question before us is novel because disclosure was sought pursuant to a Brady motion. Usually the privilege is invoked during a hearing on the exigency of a search warrant or an arrest warrant. See, e.g., Keith v. State, 238 Ga. 157; Scull v. State, 122 Ga. App. 696 (178 SE2d 720) (1970). In this case, however, the Brady motion brings the basic issue inherent in the informer’s privilege [163]*163into sharp focus. Brady v. Maryland, 373 U. S. 83, 87 (83 SC 1194, 10 LE2d 215) (1962), held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment. . .” Brady, therefore, requires the disclosure of evidence favorable to a defendant if the evidence is material to guilt or punishment. Moore v. Illinois, 408 U. S. 786, 794 (92 SC 2562, 33 LE2d 706) (1972).

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Bluebook (online)
231 S.E.2d 729, 238 Ga. 160, 1977 Ga. LEXIS 940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thornton-v-state-ga-1977.