Graham v. the State
337 Ga. App. 193
Ga. Ct. App.2016Background
- Around 2:00 a.m. Rebecca and her son Bobby were approached in an apartment complex parking lot by two men; one man pressed what appeared to be a handgun to Bobby’s temple, took Bobby’s wallet, and both men forced Rebecca out of her car and drove away in it.
- About 10 minutes later a deputy stopped Rebecca’s car after a brief chase; the driver fled, Graham was found in the passenger seat with a dark shirt tied around his neck and several small items identified by Rebecca were found in his pants pocket; a gun (later identified as a pellet gun) was recovered from the car console.
- Rebecca positively identified Graham at trial as the man who stood at her driver’s side door holding a gun to her son’s head; Bobby gave descriptions but was not asked to identify Graham at trial and provided somewhat different clothing/race-related descriptions.
- Graham was acquitted of two counts of armed robbery and one aggravated assault count (Counts 1, 2, 5) but convicted of vehicle hijacking and aggravated assault of Rebecca (Counts 3 and 4).
- On appeal Graham argued (1) insufficient evidence (eyewitness ID problems), (2) trial court erred by instructing jurors that the State need not prove all acts listed in each count, and (3) trial court improperly commented on the evidence during jury instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence / eyewitness ID | State: Victim ID plus corroborating physical evidence supports convictions | Graham: IDs were unreliable (cross-racial, brief/dark encounter, inconsistent descriptions) | Affirmed — evidence (Rebecca’s ID + corroboration) was sufficient; credibility/weight for jury |
| Conjunctive vs. disjunctive acts in indictment | State: Jury may convict if it finds proof of any listed act (disjunctive proof suffices) | Graham: Instruction allowing proof of only some listed acts was erroneous | Affirmed — instruction accurately conveyed law that State need prove at least one manner of committing the crime |
| Trial judge’s comments on evidence | State: Comment warned jurors to avoid independent investigation | Graham: Comment implied judge’s view that venue/essential elements were proved, requiring reversal under OCGA § 17-8-57 | Affirmed — comment was not an explicit opinion on contested elements and did not require reversal given proper burden-of-proof instructions |
| Inconsistent verdicts | State: Inconsistent acquittals/convictions permissible | Graham: Convictions inconsistent given who victims named in counts | Rejected — Georgia abolished rule against inconsistent verdicts; appellate court will not revive it |
Key Cases Cited
- Greeson v. State, 287 Ga. 764 (identification credibility and appellate deference to jury on witness credibility)
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency review: evidence viewed in light most favorable to prosecution)
- Gipson v. State, 332 Ga. App. 309 (it is sufficient to prove one of multiple alleged means even when indictment uses conjunctive language)
- Jones v. State, 329 Ga. App. 478 (eyewitness ID credibility is for the jury, even when only limited features were seen)
- McCrary v. State, 310 Ga. App. 215 (inconsistencies among witness testimony go to weight, not sufficiency)
- Sherman v. State, 225 Ga. App. 869 (pre-trial vs. in-trial ID inconsistencies affect credibility)
- Milam v. State, 255 Ga. 560 (rule abolishing reversal for inconsistent verdicts)
- Rouse v. State, 296 Ga. 213 (trial judge may not comment to jury indicating an opinion about what has been proved)
- Atkins v. State, 253 Ga. App. 169 (certain inartful judicial comments did not constitute reversible expression of opinion when instructions on burden of proof were clear)