Russell v. State
319 Ga. App. 472
Ga. Ct. App.2012Background
- Russell was convicted in Fulton County of hijacking, three counts of armed robbery, three counts of aggravated assault with a deadly weapon, possession of a firearm during a felony, and fleeing or eluding.
- The hijacking occurred around 2:00 a.m. on December 27, 2007 in the Grant Park neighborhood; three victims were robbed at gunpoint and the suspect fled in their Honda.
- Victims described the robber as having shoulder-length twists or dreads; they later identified Russell in mug shot books and at trial.
- Police later recovered the Honda after a pursuit; Russell was arrested and identified as the driver by an officer who had seen the vehicle.
- A few days after the incident, victims reviewed mug shot books without police supervision and independently selected Russell’s photo; defense challenged identification at trial.
- Russell challenged (1) identification testimony, (2) a level-of-certainty jury instruction, and (3) ineffective assistance of trial counsel; the trial court denied relief and the verdict was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of identification testimony | Identification tainted by impermissibly suggestive pretrial procedure | No impermissible suggestiveness; independent identifications | Identification properly admitted; no reversible error |
| Level of certainty jury instruction | Instruction should be disapproved per Brodes | Waived; not plain error; harmless under circumstances | No reversible error; harmless in context |
| Ineffective assistance re level-of-certainty claim | Counsel erred by not objecting to certainty charge | No prejudice; evidence supported identification independent of certainty | No deficient performance or prejudice; trial court correct |
| Ineffective assistance re circumstantial-evidence charge | Charge on circumstantial evidence required under OCGA 24-4-6 | State presented direct and circumstantial evidence; no request required | No error; circumstantial-evidence charge not required absent request |
Key Cases Cited
- Whitmore v. State, 289 Ga. App. 107 (Ga. App. 2008) (review of suppression findings; favor evidence standard)
- Brooks v. State, 285 Ga. 246 (Ga. 2009) (identification procedure not impermissibly suggestive)
- Escobar v. State, 279 Ga. 727 (Ga. 2005) (simultaneous mug shot viewing not fatal to identification)
- Williams v. State, 300 Ga. App. 839 (Ga. App. 2009) (harmless error when certainty instruction given under circumstances)
- Brodes v. State, 279 Ga. 435 (Ga. 2005) (level-of-certainty instruction can be harmful in some cases)
- Robinson v. State, 277 Ga. 75 (Ga. 2003) (standard for appellate review of trial court findings)
- Stubbs v. State, 265 Ga. 883 (Ga. 1995) (circumstantial-evidence charge not required absent request)
- Landers v. State, 270 Ga. 189 (Ga. 1998) (circumstantial-evidence charge required only when requested)
- Jackson v. Virginia, 443 U.S. 307 (S. Ct. 1979) (standard for sufficiency of evidence)