Curry v. State, 305 Ga. 73

On May 4, 2010, during a marijuana transaction arranged by Chesry Mathis, Jarmond Curry emerged from a closet with a handgun, demanded money, and shot Byleem Moore; Curry and Mathis fled the scene. Mathis later confessed and identified Curry in a photo array.
Two nearby witnesses, sisters Ashley Berry and Allison Sides, saw two men run from the crime scene; each testified at trial identifying Curry as the first man they saw running within ~10 feet and in daylight.
During trial, it emerged that Berry saw a photograph in a newspaper and that both sisters had viewed photographs with the prosecutor before trial and identified the pictured men; the prosecutor produced those photos in discovery, but did not disclose the oral identifications in writing.
The trial court found the State’s showing of photographs to the witnesses was an impermissibly suggestive pretrial identification, ordered additional testimony, then denied Curry’s motion for mistrial, concluding there was not a substantial likelihood of irreparable misidentification.
Curry was convicted of felony murder (predicated on armed robbery), voluntary manslaughter (merged), armed robbery, and possession of a firearm; the Supreme Court of Georgia affirmed convictions but vacated the separate sentence for armed robbery because it merged into the felony-murder conviction.

Issue	Curry's Argument	State's Argument	Held
Admissibility of in-court IDs after suggestive pretrial procedure	Trial court erred; pretrial showing of photographs (including one in a paper and photos shown by prosecutor) was impermissibly suggestive and created substantial likelihood of misidentification	Although the showing was suggestive, totality of circumstances shows identifications were reliable and based on witnesses’ untainted memories	Court: trial court correctly applied Neil/Biggers factors; no substantial likelihood of irreparable misidentification; in-court IDs admissible
Motion for mistrial based on nondisclosure of pretrial identification procedure	Nondisclosure deprived defense of ability to retain expert and meaningfully challenge IDs; warranting mistrial	Photographs were produced in discovery; witnesses’ oral identifications were not required to be disclosed; no reciprocal discovery violation	Court: no discovery violation and trial court did not abuse discretion denying mistrial
Sentencing error for concurrent/consecutive sentences	Curry argued additional life sentence for armed robbery was improper because armed robbery merged into felony murder	State had imposed consecutive life sentences; trial court erred in imposing separate life for merged count	Court: vacated the separate life sentence for armed robbery because it merged into felony murder; otherwise affirmed convictions

Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of evidence)
Neil v. Biggers, 409 U.S. 188 (factors for reliability of identifications after suggestive procedures)
Jones v. State, 273 Ga. 213 (application of mixed question review to suggestive ID claims)
Thomason v. State, 268 Ga. 298 (enumerating Biggers factors)
Brown v. State, 302 Ga. 813 (merger of underlying felony into felony murder)
Mathis v. State, 291 Ga. 268 (discussing disclosure of witness statements)
Joncamlae v. State, 267 Ga. App. 214 (ineffective-assistance/remedy where pretrial photo viewing materially affected IDs)
Cikora v. Dugger, 840 F.2d 893 (11th Cir. treatment of mixed questions of law and fact)