Cabral v. State

Beasley, Judge,

concurring specially.

Defendant challenges the admission of a photo spread used to obtain identification of the perpetrator on two grounds, raised below. One is that no nonjury hearing was conducted to test the non-suggestiveness of the procedure whereby witnesses picked out the photo of defendant. No request for a hearing was made, nor did defendant object to the lack of one. The trial court cannot be faulted for ruling erroneously when it is not called upon to rule at all. Nor was the court obligated to conduct such a hearing absent a request.

The second ground is that the spread was unduly suggestive because defendant’s photo in the group of six depicts a short-haired non-Hispanic with eyes closed partially, whereas the other five photos depict longer-haired Hispanics with eyes open and peering straight ahead.

The majority cites Knox v. State, 156 Ga. App. 777, 778 (4) (275 SE2d 371) (1980), as dispositive of the issue. It does not address the point. Knox held that testimony that certain monies were found obviated the challenge to the admission of the money itself. Knox, in turn, cites Carnes v. State, 115 Ga. App. 387 (154 SE2d 781) (1967), as authority. In Division 7 of Carnes, photos of a truck and oral testi*559mony regarding the photos were both ruled admissible because the proper foundation was laid, in that it was shown that the photos were properly identified as accurate representations of the truck involved. These two cases merely hold, in effect, that visual and oral descriptions of physical objects may both be admitted in evidence. Theoretically both forms of evidence complement each other, but if there is any discrepancy, the jury can detect it and decide which is most accurate.

Decided April 17, 1991. G. Wayne Lancaster, for appellant. Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

That is not the problem here. Defendant did not challenge the admission of the photographs because they pictured physical objects connected to the crime but rather because they constituted a spread of photos which was inherently defective as a test of identification in that it was unduly suggestive of defendant as the perpetrator of the crime. The use of the spread in the investigation for eyewitnesses to identify the perpetrator is the ground asserted. A non-neutral composition, which itself pointed to defendant, would also influence the jury to accept the identification of defendant as the offender.

Thus the issue is whether the spread was suggestive. A careful examination and consideration of it leads to the conclusion that it was not. It cannot be concluded that one of the photos, that being defendant’s, differed from the other five so as to lead to its choice.

I concur in the remaining divisions.