King v. the State
336 Ga. App. 531
| Ga. Ct. App. | 2016Background
- In 2002 a convenience-store clerk and a customer were robbed at gunpoint with a sawed-off double-barrel shotgun; the customer was threatened, pushed to the floor, and later identified the assailant by photo and voice.
- Police received a tip from an inmate who overheard another inmate bragging about the robbery; a photo array (including King) was shown to the customer about a year after the crime, and the customer picked King.
- The customer later heard King speak in a separate room and identified his voice; King was arrested and charged with armed robbery, aggravated assault, and two counts of weapon possession during a felony.
- At trial the customer made an in-court identification; an inmate testified that King bragged about the robbery and described details; several defense witnesses offered an alibi that King attended a neighborhood party.
- The trial court denied motions to exclude the photographic lineup and in-court ID; the jury convicted King on all counts. King appealed, raising challenges to identification evidence, jury instructions (including an Allen charge and an aggravated-assault theory not alleged in the indictment), alleged judicial comment on the evidence, and ineffective assistance of counsel claims.
Issues
| Issue | King’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether the pretrial photographic lineup was impermissibly suggestive | Photo of King was qualitatively different and thus suggestive; should be excluded | Differences were slight or not dispositive; no suggestive police conduct; trial court did not abuse discretion | Majority: lineup not impermissibly suggestive; concurrence disagreed but found any taint cured by independent voice/in-court ID; dissent would reverse |
| Whether the in-court identification was tainted by pretrial ID | In-court ID was infected by suggestive lineup and should be excluded | Customer’s voice ID and courtroom identification were independent and reliable | Majority: moot after ruling lineup admissible; concurrence: voice and in-court IDs independent and cured taint; dissent: no independent basis for in-court ID and would reverse |
| Whether jury was erroneously charged on an unindicted theory of aggravated assault | Charge allowed conviction on theory not alleged in indictment (assault with intent to rob) | Jury was told State must prove indictment allegations beyond a reasonable doubt and the indictment was provided to jury | Charge, read as a whole with indictment provided, did not violate due process; no reversible error |
| Whether Allen charge given (including now-disapproved language) was coercive | Language urging that case must be decided by some jury was coercive | Burchette decision was decided after trial; charge not coercive in context; jurors polled affirmatively | Not coercive here; no reversible error |
| Ineffective assistance claims (failure to call ID expert; request level-of-certainty instruction; not objecting to voice ID; not objecting to officer testimony) | Counsel’s omissions deprived King of effective assistance | Strategic choices; prevailing law at trial; failure to make meritless motions is not ineffective; no prejudice shown | Court applied Strickland and rejected all ineffective-assistance claims |
Key Cases Cited
- Reeves v. State, 294 Ga. 673 (standards for review of evidentiary rulings)
- Reed v. State, 291 Ga. 10 (abuse of discretion and mixed-review standards)
- Green v. State, 291 Ga. 287 (photo lineup differences may be harmless)
- Redding v. State, 296 Ga. 471 (photograph background/quality differences do not necessarily render lineup suggestive)
- Harwell v. State, 270 Ga. 765 (due process issue where jury instruction allows unindicted theory)
- Brodes v. State, 279 Ga. 435 (advisory about use of witness level-of-certainty jury instruction)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance two-prong test)
- Neil v. Biggers, 409 U.S. 188 (constitutional standard for suggestive identifications and independent-source inquiry)