Johnson v. State

160 Ga. App. 590 (1981)

287 S.E.2d 629

JOHNSON v. THE STATE.

63033.

Court of Appeals of Georgia.

Decided December 3, 1981.

Carl Greenberg, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Margaret V. Lines, A. Thomas Jones, Assistant District Attorneys, for appellee.

BANKE, Judge.

The defendant appeals his conviction of criminal attempt to commit kidnapping. Among others, he enumerates as error the failure of the trial court to require the state to produce as evidence certain photographs used in a pre-trial photographic display. Held:

1. The display in question was the first of two such displays shown to the victim, who testified that he did not identify anyone from that display. It was established by undisputed testimony that the defendant's photograph was not included in the display. Defendant does not suggest what harm he may have suffered from the failure to introduce the display, and he does not contend, nor does the record suggest, that the display influenced the identification of his photograph from the second display shown to the victim. In any event, the issue was not raised below and thus cannot be reviewed on appeal. See Sherrod v. State, 157 Ga. App. 351 (1) (277 SE2d 335) (1981).

*591 2. In a separate enumeration of error, the defendant complains that the second photographic display was tainted and that testimony regarding it should have been excluded. The testimony in question was the subject of a pre-trial motion to suppress which was overruled. The photographic display, which is contained in the record on appeal, shows six males of similar age and appearance. We do not find it to be "unnecessarily suggestive and conducive to irreparable mistaken identification." Kirby v. Illinois, 406 U.S. 682, 691 (92 SC 1877, 32 LE2d 411) (1972). The victim's in-court identification of the defendant, admitted without objection, was positive and supported by testimony that he had ample opportunity to observe the defendant at the time of the crime. It was not error to admit the testimony. See Herron v. State, 155 Ga. App. 791 (3) (272 SE2d 756) (1980).

Judgment affirmed. Deen, P. J., and Carley, J., concur.