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finding slight differences between defendant's facial hair, hairstyle, and the darkness of the background in his photograph did not cause photographic array to be impermissibly suggestive
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S02A1504.
Decided October 15, 2002
Murder. Fulton Superior Court. Before Judge Langford, Senior Judge.
Brown Gill, Angela Y. Brown, for appellant.
Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Elizabeth A. Baker, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Adam M. Hames, Assistant Attorney General, for appellee.
After a jury trial, Courtney Williams was found guilty of felony murder, armed robbery, and aggravated assault. Merging the armed robbery and aggravated assault counts into the felony murder count, the trial court entered judgment of conviction and sentenced Williams to life imprisonment. A motion for new trial was denied, and he appeals. His co-indictee, Kenyama Smith, was tried separately and also convicted of felony murder, and this Court affirmed that conviction. Smith v. State, 273 Ga. 356 ( 541 S.E.2d 362) (2001).
The crime occurred on June 1, 1998. The grand jury returned its indictment on June 26, 1998. The jury found Williams guilty on September 20, 1999 and the trial court entered the judgment of conviction and sentence on September 24, 1999. Williams filed a motion for new trial on September 28, 1999, and the trial court denied that motion on March 29, 2002. Williams filed a notice of appeal on April 26, 2002. The case was docketed in this Court on June 19, 2002 and submitted for decision on August 12, 2002.
1. Construed in support of the verdict, the evidence shows that Michelle Russell drove the victim to an apartment to buy drugs. Smith and Appellant Williams followed the victim back to the car. Smith took something from the victim and shot him in the thigh, while Appellant hid behind a building. Smith and the victim continued to struggle. Williams then walked up to the victim and shot him in the back. Appellant and Smith went through the victim's pockets before fleeing the scene. Ms. Russell identified Williams in a pre-trial photographic lineup and again at trial. Two additional eyewitnesses also identified Appellant in court and testified that he followed the victim and Smith and subsequently shot the victim. The evidence was sufficient to prove the underlying felonies and to authorize a rational trier of fact to find Williams guilty of felony murder beyond a reasonable doubt.Jackson v. Virginia, 443 U.S. 307 ( 99 S.Ct. 2781, 61 L.E.2d 560) (1979);Scruggs v. State, 273 Ga. 752 (1) ( 545 S.E.2d 888) (2001); Smith v. State, supra at 356(1).
2. Williams contends that the trial court erroneously admitted Ms. Russell's pre-trial identification of him. According to Appellant, the photographic lineup was impermissibly suggestive because he was the only one without a goatee, he had more hair than the others, and his photograph had a darker background.
An identification procedure is impermissibly suggestive when it leads the witness to an "all but inevitable identification" of the defendant as the perpetrator ([cit.]) or . . . is the equivalent of the authorities telling the witness, "This is our suspect." [Cit.]
Clark v. State, 271 Ga. 6, 12(7)(b) ( 515 S.E.2d 155) (1999). Contrary to the assertion on appeal, each photograph in the lineup here displayed a young black male with a mustache and a goatee. Williams v. State, 272 Ga. 828, 829(2) ( 537 S.E.2d 39) (2000); Clark v. State, supra at 12 (7)(b). Williams had some chin hair, a similar hairstyle to the others, and an amount of hair and a dark background that was similar to some of the others. The slight differences in Appellant's facial hair, the hair on his head, and the darkness of the background did not cause the photographic line-up to be impermissibly suggestive. Williams v. State, supra at 829(2); Miller v. State, 270 Ga. 741, 743(2) ( 512 S.E.2d 272) (1999); Brodes v. State, 250 Ga. App. 323, 326(2)(a) ( 551 S.E.2d 757) (2001); Taylor v. State, 203 Ga. App. 210, 211(2) ( 416 S.E.2d 554) (1992). Appellant complains that the top of the lineup display read "Clayton County Sheriff's Office," but those words alone do not identify or suggest any particular photograph, and he does not argue that this label injected his character into evidence. See Clark v. State, 249 Ga. 18 ( 287 S.E.2d 523) (1982). Moreover, such an argument would be without merit. Harris v. State, 191 Ga. App. 399 ( 381 S.E.2d 602) (1989).
The photographic display has been included in the record and, based upon our review of it, we conclude that "the trial court was authorized to find that there was no impermissible suggestiveness. [Cits.]" Riley v. State, 268 Ga. 640, 643(3) ( 491 S.E.2d 802) (1997). Furthermore, Williams "did not object to the in-court identifications and has, therefore, waived objection to it on appeal. [Cits.]" Heng v. State, 251 Ga. App. 274, 278(2) ( 554 S.E.2d 243) (2001).
Judgment affirmed. All the Justices concur.