Harper v. the State
330 Ga. App. 561
| Ga. Ct. App. | 2015Background
- Harper convicted of two counts of armed robbery and one count of aggravated assault.
- Middleman initially identification Harper in a photographic lineup; later recanted at trial.
- State relied on prior cell phone data linking to Harper and on initial lineup ID to prove identity and bent of mind.
- Similar transaction evidence involved a prior robbery by Harper with a co-defendant; used to show bent of mind and possibly identity.
- Trial court allowed similar transaction evidence; after middleman recanted, limiting charges and purposes were clarified; Harper did not object to final ruling.
- Counsel’s strategic decisions challenged in several ineffective-assistance claims, including failure to present alibi and eyewitness testimony, and not suppressing identification or impeaching with prior conviction.
- Evidence and rulings viewed in light most favorable to the verdict; sufficiency and evidentiary rulings reviewed for abuse of discretion; final judgment affirmed.
- Note: The case was tried in 2012; post-Whitehead changes to preservation of similar transaction objections do not apply retroactively here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to sustain convictions | Harper | Harper | Sufficient evidence |
| Admissibility of similar transaction evidence | State seeks to show bent of mind/identity | Evidence lacks sufficient similarity | Properly admitted to show bent of mind; identity by similarity insufficiently proven without more |
| Preservation of identity issue post-recusal of lineup ID | Harper argues waiver | State should be barred from using it | Harper waived due to lack of final ruling at admissibility; preservation not satisfied per Whitehead variance |
| Effectiveness of trial counsel | Counsel failed to present alibi and eyewitness; failed to suppress/impeach | Strategic choices were reasonable | No ineffective assistance; decisions deemed strategic and not deficient |
Key Cases Cited
- Gibson v. State, 272 Ga. 801 (2000) (lineup testimony admissible)
- In the Interest of M.D.L., 271 Ga. App. 738 (2005) (prior identification admissible as substantive evidence)
- Reed v. State, 291 Ga. 10 (2012) (similar transaction admissibility framework)
- Williams v. State, 295 Ga. App. 249 (2008) (similar crime connection sufficiency)
- Phillips v. State, 287 Ga. 560 (2010) (identity vs. bent of mind—similarity standard)
- Whitehead v. State, 287 Ga. 242 (2010) (preservation of objection for similar transactions lifted; but not controlling here)
- Davis v. State, 269 Ga. 276 (1998) (prior bad act admissibility without conviction when similar)
- Tilly v. State, 197 Ga. App. 97 (1990) (similar transaction evidence admissibility)
- McKenzie v. State, 284 Ga. 342 (2008) (informed strategic decisions not ineffective)