310 Ga. App. 215
Ga. Ct. App.2011Background
- Victim outside Fulton County bar on Dec. 8, 2005; McCrary approached with a gun and pointed it at victim.
- A struggle over a cell phone ensued; victim called for bar patrons' help as McCrary fled, firing three shots and injuring victim's arm.
- McCrary fled in a Nissan Sentra; victim and friend described the vehicle and McCrary to police.
- Next day, police encountered a similar vehicle fleeing; found McCrary under a stairwell after wreckage was located.
- Victim identified McCrary in a photographic lineup and again in court; friend also identified him.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to convict | McCrary argues insufficient evidence. | State asserts sufficient identifications support convictions. | Evidence sufficient; witness identifications support guilt. |
| Level of certainty instruction on eyewitness ID | McCrary claims error from certainty charge per Brodes. | State contends no plain error; cross-examination and multiple identifications mitigate. | No plain error; charge not reversible under circumstances. |
| Ineffective assistance for not objecting to certainty charge | McCrary asserts ineffective assistance. | State argues no prejudice given other evidence and instructions. | No prejudice; trial counsel's performance not deficient to reversal. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1980) (sufficiency standard for evidence in criminal cases)
- Burden v. State, 290 Ga.App. 734 (Ga. App. 2008) (identity evidence evaluated by jury credibility)
- McKenzie v. State, 284 Ga. 342 (Ga. 2008) (limits on certainty evidence and corroboration considerations)
- Brodes v. State, 279 Ga. 435 (Ga. 2005) (level of certainty instruction inappropriate for eyewitness ID; potential plain error)