Nature of the Case
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Facts
D was indicted for robbery with a firearm. Two men robbed the Shoney's Restaurant. Thomas Avant testified that he and D agreed to rob the restaurant. They drove to the restaurant in Avant's girlfriend's car. They entered the restaurant, where a supervisor asked what they were doing. Avant testified that either he or D told the supervisor it was a 'stick up' and ordered him to go into the restaurant office. D was carrying a .22 caliber pistol. The manager was unable to open the safe and D hit him on the head two or three times with the pistol. Avant went to the cash register and took out all the money. He and D then put all the employees in a cold storage room and left. Avant was arrested several days after the robbery and later pled guilty to several robbery charges. Avant told a detective that D had been his partner in the Shoney's Restaurant robbery. Ralph Schultz testified that he was the manager present and in charge and unequivocally identified D as one of the men who held him at length and then robbed him at gunpoint early that morning. He corroborated Avant's testimony as to what occurred during the robbery. Schultz testified that during the robbery D hit him with a pistol and threatened to kill the employees. Two or three weeks before trial, Schultz had been shown a photographic lineup that contained a picture of D. He did not identify the photograph of D as being the second robber. Kenneth Baldwin and Earnest Hardy were also present and could not positively identify D as one of the robbers. The day after the robbery, Special Investigator Armfield used an 'Identi-kit' with four witnesses. The kit had hundreds of different facial features that he could place on clear plastic plates to construct a composite picture. He created the initial face and then asked the individuals what's wrong with it, . . . at this point we begin changing the features of the face until the individual is satisfied that what was created was as close as they can get to the person they are trying to identify. Armfield testified at trial. P contends that no out-of-court statements of the witnesses themselves were introduced through the testimony of Special Investigator Armfield. The composite pictures did not constitute 'statements' and, therefore, were not hearsay because they were produced by mechanical procedures essentially re-creating a picture and not producing a 'statement' or an 'assertion' within the meaning of our Rules of Evidence. D was found guilty and appealed.
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