Simmons v. State
309 Ga. App. 369
Ga. Ct. App.2011Background
- Gulf DeKalb County armed robbery at a Waffle House around 4:30 a.m. on April 1, 2008; Simmons allegedly used a handgun to rob a waiter, witnessed by the cook who obtained the suspect’s car tag; Simmons' girlfriend owned the car and testified she loaned it to him that morning.
- Police traced the car tag to Simmons' girlfriend and connected him to the car; she testified to loaning the car.
- Two days post-robbery, the cook and waiter identified Simmons from a six-photo lineup; both witnesses identified him at trial.
- Police obtained and the State played surveillance video of the robbery for the jury.
- Simmons, represented by a public defender, moved to hire private counsel; continuance requests were denied, and trial proceeded; mistrial occurred after voir dire, with continued denial of continuance before the March 30–31, 2009 trial.
- Court affirmed denial of continuance, suppression of pretrial identifications, and claimed ineffective assistance of counsel; no reversible error found.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Continuance to hire private counsel was improper | Simmons sought a continuance to obtain private counsel | Court had discretion; delay tactic not allowed | No abuse of discretion; denial affirmed |
| Pretrial identification impermissibly tainted due to suggestive lineup | Lineup was suggestive because Simmons had darkest skin tone | Array was not impermissibly suggestive; circumstances show reliability | Not impermissibly suggestive; no substantial likelihood of misidentification |
| Ineffective assistance of counsel in three respects | Counsel failed to prepare, seek continuance, and negotiate pleas | Counsel effectively prepared; no deficient performance shown | No deficient performance; defense not shown to be prejudiced |
Key Cases Cited
- Holder v. State, 242 Ga.App. 479, 483(7), 529 S.E.2d 907 (2000) (Ga. App. 2000) (denial of a continuance may be proper for delay or lack of prompt counsel)
- Smith v. State, 161 Ga.App. 512, 514(3), 288 S.E.2d 754 (1982) (Ga. App. 1982) (discharge of counsel not a dilatory tactic for continuance)
- Padilla v. State, 273 Ga. 553, 554(1), 544 S.E.2d 147 (2001) (Ga. 2001) (skin-tone matching not required; lineup not impermissibly suggestive)
- Mobley v. State, 277 Ga.App. 267, 270-271(1), 626 S.E.2d 248 (2006) (Ga. App. 2006) (evaluate suggestive lineups by totality of circumstances)
- Terrell v. State, 276 Ga.App. 102, 103(1), 622 S.E.2d 434 (2005) (Ga. App. 2005) (ineffective assistance claim requires deficient performance and prejudice)
- Jackson v. Virginia, 443 U.S. 307, 319(III)(B) (1979) (U.S. 1979) (review of sufficiency of evidence standard)