Hassan v. State

Pope, Presiding Judge. Defendant appeals his convictions of armed robbery and theft by receiving stolen property. In his sole enumeration of error on appeal, defendant contends the trial court erred in allowing, over his hearsay objection, a police officer to testify that one of the victims identified defendant as a perpetrator of the crimes from a photographic line-up. Although defendant acknowledges that our Supreme Court has held that such testimony is not subject to a hearsay objection, see Haralson v. State, 234 Ga. 406 (216 SE2d 304) (1975), he points to two recent decisions by this court in which we criticized the Supreme Court’s ruling in Haralson, see Neal v. State, 211 Ga. App. 829, 830 (1) (b) (440 SE2d 717) (1994) and Wade v. State, 208 Ga. App. 700 (1) (431 SE2d 398) (1993), and urges further that Haralson has been implicitly overruled by more recent Supreme Court cases. However, in both Neal and Wade we noted that we were bound to follow Haralson and nothing in the other Supreme Court cases cited by defendant suggests to the contrary. Moreover, in both Neal and Wade the identifying witness was not present at trial and thus was not subject to cross-examination by the defendant, and much of our criticism of Haralson in those cases was directed toward allowing testimony under these circumstances. As we stated in Neal, “[i]t may be time for the Supreme Court to reconsider Haralson or at least limit its application to cases in which the identifying witness is available for cross-examination.” (Emphasis supplied.) Neal, 211 Ga. App. at 830. In this case, the witness who identified the defendant did testify at trial, and presumably could have been cross-examined by the defendant following the of [485] fleer’s testimony had the defendant so requested. Accordingly, we find defendant’s sole enumeration of error on appeal to be without merit. Decided March 6, 1995 John O. Ellis, Jr., for appellant. J. Tom Morgan, District Attorney, Barbara B. Conroy, Desiree L. S. Peagler, Assistant District Attorneys, for appellee. Judgment affirmed. McMurray, P. J., and Smith, J., concur.