Gandy v. State, 290 Ga. 166

Gandy was convicted after a jury trial of felony murder, armed robbery, burglary, and aggravated assault, with armed robbery merged into felony murder.
Victims James and Mary Moore hired Gandy and Cloud to assist at the Boggy Bayou Mullet Festival, then returned home with money earned at the festival.
Gandy and Cloud, with Joshua Peterson, robbed the Moores, broke in, and targeted a safe; the Moores were shot, Mary Moore killed, Kyle? no, Mrs. Moore killed, Mr. Moore wounded.
Gandy, Cloud, and Peterson fled with the safe and cash; they were later arrested; the safe was found in a ditch near Ms. Hernandez's house where Gandy had stayed.
Walker identified Gandy from a news photograph; the Moores identified Gandy as the gunman; Cloud testified against Gandy at trial.
Gandy filed a motion for new trial; the trial court denied, and the Supreme Court of Georgia affirmed the judgments.

Issue	Plaintiff's Argument	Defendant's Argument	Held
admissibility of eyewitness identifications	Gandy contends identifications were tainted by suggestive procedures	State claims no police suggestiveness; credibility is for jury	no error; credibility for jury; no suppression required
Confrontation clause and identification of Peterson	Identification violated Sixth Amendment by Cloud’s in-court identification of Peterson	Davis controls; Sixth Amendment not violated since Peterson invoked Fifth Amendment	Davis controls; no violation; harmless given procedural posture
Polygraph reference and potential mistrial	Cloud’s polygraph remark was prejudicial; mistrial warranted	Courts can cure with curative instruction; no prejudice	curative instruction sufficient; no mistrial
Ineffective assistance of trial counsel—identification evidence	Counsel should have moved to suppress identification evidence	No deficient performance; identification credibility was proper cross-examination material	no deficient performance; evidence properly admitted
Ineffective assistance re Eighth Amendment sentence consideration	Minimum 30-year parole-ineligibility for 20-year-old is cruel and unusual	Graham inapplicable; he was not a juvenile and not subject to LWOP; lawful	Graham/juvenile rule not applicable; sentence permissible

Davis v. State, 255 Ga. 598, 340 S.E.2d 869 (1986) (Ga. 1986) (identification in court where size/power is part of State’s case does not violate confrontation rights)
Crawford v. State, 256 Ga. 585, 351 S.E.2d 199 (1987) (Ga. 1987) (preponderance of evidence standard for eyewitness credibility; credibility for jury)
Semple v. State, 271 Ga. 416, 519 S.E.2d 912 (1999) (Ga. 1999) (identify credibility; no state actor suggestiveness required for admission)
Lyon s v. State, 247 Ga. 465, 277 S.E.2d 244 (1981) (Ga. 1981) (eyewitness credibility issue resolved by jury)
Durden v. State, 274 Ga. 868, 561 S.E.2d 91 (2002) (Ga. 2002) (curative instruction can mitigate prejudicial testimony)
Lance v. State, 275 Ga. 11, 560 S.E.2d 663 (2002) (Ga. 2002) (curative instructions and harmless error analysis)
Evans v. State, 256 Ga. 10, 342 S.E.2d 684 (1986) (Ga. 1986) (Polygraph mention not automatically prejudicial when curative instruction given)
Rogers v. State, 282 Ga. 659, 653 S.E.2d 31 (2007) (Ga. 2007) (age-based Eighth Amendment considerations; not controlling for above-age offenders)
Graham v. Florida, 130 S. Ct. 2011 (2010) (S. Ct. 2010) (juvenile sentencing restrictions do not apply to non-juvenile homicide offenders)
Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005) (U.S. 2005) (age 18 as line for death eligibility)
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979) (U.S. 1979) (standard for sufficiency of evidence to sustain conviction)