Pitts v. State
323 Ga. App. 770
Ga. Ct. App.2013Background
- Pitts was convicted by a jury of two counts of armed robbery and one count of aggravated assault arising from a September 8, 2010 robbery of three landscape workers; co-defendants Hibbler and Wright pled to lesser offenses and testified for the State.
- One victim (the truck driver) made a positive in-court identification of Pitts; another victim testified he could not remember faces well; a third victim moved to Mexico and was unavailable.
- Wright gave a statement to police identifying Pitts as the third robber and gave Pitts’s residence; Pitts was arrested the next day.
- Pitts moved in limine to exclude the in-court identifications (arguing lack of pretrial ID procedures and a suggestive courtroom because Pitts was the only African‑American), and sought admission of an unavailable victim’s out‑of‑court statement under the necessity exception.
- Pitts also moved for a new trial claiming ineffective assistance for counsel’s failure to object to prosecutor remarks in rebuttal calling a defense fingerprint argument a “red herring” / “blowing some smoke up.” The trial court denied the motion for new trial; this appeal followed.
Issues
| Issue | Pitts' Argument | State's Argument | Held |
|---|---|---|---|
| Admissibility of in‑court identification | Court should exclude because no pretrial ID procedure and the courtroom was suggestive (Pitts only African‑American present) | Pretrial lineup/photo ID is not required; suggestiveness impacts credibility for jury, not per se exclusion | Denied. In‑court ID admissible; lack of pretrial ID and racial composition did not make it inadmissible. |
| Admission of unavailable victim’s out‑of‑court statement under necessity hearsay exception | Trial court erred by denying admission (as argued on appeal) | Trial court actually granted admission and it was introduced at trial | No error; statement was admitted at trial. |
| Ineffective assistance for failure to object to prosecutor’s rebuttal language | Counsel ineffective for not objecting to prosecutor calling defense argument a “red herring” / accusing counsel of misdirection | Prosecutor’s remarks were permissible imagery and argument; objection would have failed; counsel reasonably chose not to object to avoid highlighting the remarks | Denied. Counsel’s failure to object not deficient (objection would be meritless or strategic to avoid highlighting argument). |
Key Cases Cited
- Anthony v. State, 317 Ga. App. 807 (addresses standard of review and Strickland framework in Georgia appellate context)
- Ralston v. State, 251 Ga. 682 (in‑court identification does not require prior lineup or photo array)
- Blige v. State, 205 Ga. App. 133 (absence of pretrial ID does not render in‑court ID inadmissible)
- Price v. State, 159 Ga. App. 662 (victim credibility and in‑court IDs are for jury assessment)
- Rainly v. State, 307 Ga. App. 467 (wide latitude in closing argument; use of illustrations permitted)
- Coghlan v. State, 319 Ga. App. 551 (trial court discretion over limits on argument; permitted prosecutor imagery)
- Arrington v. State, 286 Ga. 335 (prosecutor may argue defendant failed to rebut State’s evidence)
- Henry v. State, 279 Ga. 615 (failure to make a meritless objection cannot establish ineffective assistance)
- Braithwaite v. State, 275 Ga. 884 (strategic silence instead of objection can be reasonable trial strategy)
- Flemister v. State, 317 Ga. App. 749 (trial tactics generally do not show ineffective assistance unless patently unreasonable)