FOSTER v. THE STATE, 156 Ga. App. 672

Banke, Judge. The appellant was indicted for armed robbery and was convicted of robbery by intimidation as a lesser included offense. Three eyewitnesses testified against him: the victim and two bystanders. Neither of the bystanders had been asked to identify the appellant during the four months between the date of the offense and the date of trial, despite the fact that the appellant was in custody for three of those months.

However, shortly before the trial commenced, the state’s attorney asked both witnesses to identify the assailant from among a group of criminal defendants seated in the jury box; and each selected the appellant. Defense counsel objected at trial to the testimony of the first of these two witnesses and moved that she not be allowed to identify the appellant in court. However, he did not object to the testimony of the second witness. The basis for the objection was that the state had conducted a post-indictment lineup without honoring the appellant’s right to counsel.

On appeal, the state contends for the first time that appellant’s counsel was in fact present in the courtroom during the identification procedure and able to observe it. Although the record does not conclusively support this position, it does provide indirect support for it, for in making his objection, defense counsel demonstrated considerable familiarity with the appearance of the other members of the lineup, arguing that none of them were of the “same size, height, weight, or . . . characteristics” as the appellant. Held: 1. The general grounds of the motion for new trial were properly overruled.

Although the appellant attempted to prove that he could not have reached the crime scene between the time he clocked out of work and the time the robbery took place, his evidence on this issue was certainly not conclusive.

Indeed, appellant’s counsel admits as much, for following a preprinted discussion of the amount of evidence needed to sustain a conviction on appeal, he makes the following statement in his brief: “The testimony of the witnesses for the state and [for] the defense presents a definite question of fact as to whether it was possible for the appellant to have committed the crime charged.” We find that a rational trier of fact could reasonably have concluded that the appellant was guilty beyond a reasonable doubt. 2. “United States v. Wade, 388 U.

S. 218 [87 SC 1926,18 LE2d 1149] (1967), held that a pre-trial corporeal identification conducted after a suspect has been indicted is a critical stage in a criminal prosecution at which the Sixth Amendment entitles the accused to the presence of counsel. The court emphasized the dangers inherent in a pretrial identification conducted in the absence of counsel. Persons who conduct the identification procedure may suggest, intentionally or unintentionally, that they expect the witness to identify the accused.

Such a suggestion, coming from a police officer or prosecutor, can lead a witness to make a mistaken identification. The witness then will be predisposed to adhere to this identification in subsequent testimony at trial. Id. at 229, 235-236.” Moore v. Illinois, 434 U. S. 220, 224-225 (98 SC 458, 54 LE2d 424) (1977). The Wade decision went on to hold that notwithstanding any illegality in the pre-trial identification procedures, the witness’ in-court identification may nevertheless be admitted so long as it has an “independent origin” from the illegal identification procedure. United States v.

Wade, supra, at 242. “Application of this test. . . requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and lineup identification.

It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.” Id. at 241. While an illegality in the pre-trial identification procedure does not automatically prevent the witness from identifying the defendant during the trial, a per se rule of exclusion does apply to evidence of the illegal lineup identification itself. Gilbert v. California, 388 U. S. 263 (87 SC .1951, 18 LE2d 1178) (1967).

There is no question under the Wade decision that the appellant was entitled to counsel at the pre-trial identification procedure which was arranged and conducted by the assistant district attorney in this case. The state cites Prater v. State, 148 Ga. App. 831 (7) (253 SE2d 223) (1979) as authority to the contrary; however, that case is clearly distinguishable on its facts. There, neither the police, the district attorney, nor any other law enforcement official took any

part in arranging the setting for the pre-trial identification. The witnesses merely attended, at the suggestion of the prosecutor but on their own initiative, unrelated court proceedings at which the defendant was scheduled to be present, identifying him from among numerous other persons in the room. The circumstances were quite different from those in this case, as there was no opportunity for any law enforcement official to exercise any influence, direct or indirect, over the witnesses’ selection.

The state further argues that any error in admitting the witness’ testimony was harmless because both the victim and the other bystander independently identified the appellant as the person who had committed the robbery. A constitutional error may be held harmless only where it appears harmless “beyond a reasonable doubt.” Chapman v. California, 386 U. S. 18, 24 (87 SC 824, 17 LE2d 705) (1967).

The jury in this case deliberated for over a day, at one point requesting a city map, presumably so that they could better evaluate the appellant’s contention that he could not have reached the scene of the crime in time to have committed it. Given these factors, we cannot say beyond a reasonable doubt that the testimony of a third eyewitness did not contribute to the verdict. Thus, we hold that if the admission of the witness’ identification testimony was error, it was reversible error.

On the other hand, if the witness’ in-court identification was admissible, then any error in admitting testimony of the lineup identification itself would appear harmless beyond a reasonable doubt. As indicated previously, the transcript provides no clear basis for a determination as to whether the appellant’s attorney was present in the courtroom and able to observe the pre-trial lineup when it took place. We therefore remand the case for another hearing on the appellant’s motion to exclude the witness’ testimony, so that evidence may be presented on this issue.

In the event that the trial court determines that the appellant’s attorney was not in fact present at and able to observe the lineup, then the court may hear evidence on whether the witness’ in-court identification testimony had an independent origin from her lineup identification, based on the standards set forth in United States v. Wade, supra. The court shall then enter another ruling on the admissibility of the witness’ in-court identification testimony; after which, should the state again prevail, the appellant may again appeal the issue to this court.

Argued September 4, 1980 Decided December 3, 1980 Vernon S. Pitts, Jr., for appellant. Lewis R. Slaton, District Attorney, Benjamin H. Oehlert III, Joseph J. Drolet, A. Thomas Jones, Assistant District Attorneys, for appellee. Judgment vacated and case remanded with direction. Smith, Shulman, Birdsong and Carley, JJ., concur. Quillian, P. J., concurs specially. Deen, C. J., McMurray, P. J., and Sognier, J., dissent.