White v. State

Court of Appeals of Georgia

White v. State

370 S.E.2d 50, 187 Ga. App. 301, 1988 Ga. App. LEXIS 622

CourtCourt of Appeals of Georgia

DecidedMay 31, 1988

Docket76582

StatusPublished

Cited by2 cases

This text of 370 S.E.2d 50 (White v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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White v. State, 370 S.E.2d 50, 187 Ga. App. 301, 1988 Ga. App. LEXIS 622 (Ga. Ct. App. 1988).

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Deen, Presiding Judge.

The appellant, Benny White, was convicted of burglary. On appeal, he contends that the trial court erred in denying his motion for a continuance and his motion to suppress both the pre-trial and in-court identification evidence. Held:

1. White moved for a continuance at the beginning of the trial, on the ground that a key defense witness, who would corroborate his alibi defense, was not present. This witness had been subpoenaed, but at the time of trial she was hospitalized in the psychiatric ward of Grady Hospital. The trial court did order the sheriff to pick up this witness at the hospital, unless she was medically unable to testify, [302]*302which turned out to be the case.

Concerning applications for continuances based on the absence of a witness, OCGA § 17-8-25 requires, among other things, a showing “that the applicant expects he will be able to procure the testimony of the witness at the next term of the court . . .” As noted by the state in objecting to the motion, and as found by the trial court, White did not even attempt to show that this witness would be able to testify by the next term of the court; accordingly, denial of the motion was not an abuse of discretion. Cf. Frost v. State, 91 Ga. App. 618 (86 SE2d 646) (1955).

2. In this case, the victim arrived home in the afternoon and discovered White backing out of his driveway; White’s car was filled with various appliances from the victim’s home. The victim held White in check with his pistol for a few minutes and called the police; White, however, fled on foot before the police arrived. A few days later, the police showed the victim a photo line-up, and the victim picked out White’s photo in approximately five seconds. At trial he also positively identified White as the burglar he stopped.

White contends that the photo line-up was impermissibly suggestive, thus tainting both the photo and the in-court identifications, because (1) there was a discrepancy between the testimony of the victim and the police officer as to whether the victim was standing or sitting at the time of the photo line-up; (2) White’s photo was in the front and center position in the photo array; and (3) the victim assumed that the photo array contained the photograph of a suspect. We find that these circumstances, either singly or in combination, did not render the photo line-up impermissibly suggestive.

Judgment affirmed.

Carley and Sognier, JJ., concur specially.

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Deen, Presiding Judge.

The appellant, Benny White, was convicted of burglary. On appeal, he contends that the trial court erred in denying his motion for a continuance and his motion to suppress both the pre-trial and in-court identification evidence. Held:

1. White moved for a continuance at the beginning of the trial, on the ground that a key defense witness, who would corroborate his alibi defense, was not present. This witness had been subpoenaed, but at the time of trial she was hospitalized in the psychiatric ward of Grady Hospital. The trial court did order the sheriff to pick up this witness at the hospital, unless she was medically unable to testify, [302]*302which turned out to be the case.

Concerning applications for continuances based on the absence of a witness, OCGA § 17-8-25 requires, among other things, a showing “that the applicant expects he will be able to procure the testimony of the witness at the next term of the court . . .” As noted by the state in objecting to the motion, and as found by the trial court, White did not even attempt to show that this witness would be able to testify by the next term of the court; accordingly, denial of the motion was not an abuse of discretion. Cf. Frost v. State, 91 Ga. App. 618 (86 SE2d 646) (1955).

2. In this case, the victim arrived home in the afternoon and discovered White backing out of his driveway; White’s car was filled with various appliances from the victim’s home. The victim held White in check with his pistol for a few minutes and called the police; White, however, fled on foot before the police arrived. A few days later, the police showed the victim a photo line-up, and the victim picked out White’s photo in approximately five seconds. At trial he also positively identified White as the burglar he stopped.

White contends that the photo line-up was impermissibly suggestive, thus tainting both the photo and the in-court identifications, because (1) there was a discrepancy between the testimony of the victim and the police officer as to whether the victim was standing or sitting at the time of the photo line-up; (2) White’s photo was in the front and center position in the photo array; and (3) the victim assumed that the photo array contained the photograph of a suspect. We find that these circumstances, either singly or in combination, did not render the photo line-up impermissibly suggestive.

Judgment affirmed.

Carley and Sognier, JJ., concur specially.

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370 S.E.2d 50, 187 Ga. App. 301, 1988 Ga. App. LEXIS 622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-state-gactapp-1988.

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