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Lawskills.com Georgia Caselaw
JOHNSON v. THE STATE.
67557.
QUILLIAN, Presiding Judge.
Armed robbery. Muscogee Superior Court. Before Judge McCombs.
Defendant appeals his conviction for armed robbery. Held:
1. Defendant asserts that the trial court erred by refusing to suppress his in-court identification by the victim and his wife because the identifications were tainted by impermissibly suggestive pretrial photographic identification procedures.
The detective spoke with the caller, an unidentified woman. The caller wanted to know if the store had been robbed and when told that it had been, she told the detective that defendant had done it and that he was hiding at his mother's house. The detective went to the address the caller had given, which was a few blocks away, and spoke with defendant's mother. The mother said that defendant was not there. At the detective's request for a picture of defendant the mother gave him a board with several family photographic pictures fastened to it and indicated one which was of defendant. The detective took the photo board directly to the scene of the crime and asked the victims if they could identify anyone in the photographs as the robber. Both identified the picture of defendant as the robber, but asked to view him in person and hear his voice. Eight days later, the victims were separately shown a head and shoulder front and side view photographic array of five males, who all had the same general description. Both victims identified the picture of defendant as the robber. Several months later, the victims separately viewed a lineup of five men of similar description which included defendant, listened to their voices and again identified defendant as the robber. They subsequently identified defendant at trial.
Applying the five factors of Neil v. Biggers, 409 U. S. 188, 199, supra, to the facts of this case, and considering the "totality of the circumstances," we find that there was not a "substantial likelihood of irreparable misidentification." The trial court did not err in admitting the in-court identification. Compare, Burrell v. State, 239 Ga. 792 (239 SE2d 11); Bradley v. State, 152 Ga. App. 902, supra; Morris v. State, 160 Ga. App. 505 (3) (287 SE2d 405).
2. Did the trial court err in permitting the detective to testify as to what the unidentified woman told him on the telephone?
"When, in a legal investigation, the conduct and motives of the actor are matters concerning which the truth must be found (i.e., are relevant to the issues on trial), then information, conversations . . . and similar evidence known to the actor are admissible to explain the actor's conduct. [Cits.] But where the conduct and motives of the actor are not matters concerning which the truth must be found (i.e., are irrelevant to the issues on trial) then information, etc., on which he or she acted shall not be admissible under Code Ann. 38-302 [now OCGA 24-3-2]." Momon v. State, 249 Ga. App. 865, 867 (294 SE2d 482).
Applying the standards of Momon to the facts of this case as set out in the foregoing division, there can be little question that the unidentified caller's statement that defendant was the robber and was at his mother's house was highly relevant to the issues on trial and was admissible to explain the detective's conduct in determining who had committed the robbery. Accordingly, there was no error in admitting the statement, and the jury was duly instructed as to its limited purpose.
William J. Smith, District Attorney, Michael D. Reynolds, Assistant District Attorney, for appellee.
William H. Hope II, H. Haywood Turner III, for appellant.
DECIDED FEBRUARY 23, 1984.
Saturday October 11 04:35 CDT


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