Partridge v. State

Beasley, Chief Judge,

concurring specially.

I agree that no reversible error occurred by way of the in-court identification of defendant by the victims, even though one of the two victims had never identified defendant prior to trial and was only asked to identify him when he was the sole black male in the courtroom and was sitting at counsel table. The other victim had picked *581defendant out of a six-person photo spread shown to her at her home six days after the event. She was told beforehand that she had to be 100 percent certain before she made such an identification, and she did it within a few seconds. Defendant’s photo was one of those in the spread shown to the two victims, independently, because the investigator had developed him as a suspect.

At trial, counsel asked the court to allow defendant to sit out in the courtroom with other black males who were available to be brought in and to have the female victim asked the question of identification under these circumstances. Counsel recognized her identification as crucial because she had earlier picked him out. In support of this request defendant cited United States v. Archibald, 734 F2d 938 (2nd Cir. 1984), which was clarified in an order in 756 F2d 223 (2nd Cir. 1984). Even if that court’s view were to be followed, it would not apply to this case because defendant did not move prior to trial for any such procedure, a condition enumerated in Archibald.

We are bound in this case by Ralston v. State, 251 Ga. 682 (309 SE2d 135) (1983), which I believe is not materially distinguishable. See also Yancey v. State, 232 Ga. 167 (205 SE2d 282) (1974), for the applicable principles of constitutional law.

Although showing defendant to victims at trial as the only possible perpetrator suggests the answer to each of those who are called to identify him, I do not conclude that this procedure tainted the identifications in this case. The victims had extensive opportunity to observe defendant in their separate encounters with him during the event culminating in the crime, they gave descriptions which led to his selection as the only suspect, and they were certain in the courtroom that defendant was the person who committed the robbery.

The male victim, who had not identified defendant from the photo spread, testified that when he came to the courthouse he “looked at [defendant] and [he] right away saw that was the person.” He explained that “sometime when you see somebody in person, you know, you can see somebody better than, you know, when you’re looking at, you know, pictures. And pictures may be very old. He has peculiar ears. Okay. And he has his particular skin which I — you know, I can identify — I can identify eyes . . . And looking at the person sometime it could revive you the memories at that time what happened to you, who you were — looking at the person at that time, and you can see that that was the person or not.” He was “sure, positive” that defendant was the person who robbed him. The female victim was also “sure.”

As in Ralston, the victims were subject to full cross-examination about the bases for their in-court identifications and their ability to observe defendant during his involvement with them. There is little, if any, likelihood in this case that the in-court identifications were *582based on, or tainted by, defendant being positioned where he was in the courtroom and being the only black male present. The circumstances do not establish a risk of “irreparable mistaken identification.” Kirby v. Illinois, 406 U. S. 682, 691 (92 SC 1877, 32 LE2d 411) (1972).