*1 Judgment Phipps, Boggs, J., J., reversed. P. concur. — 1,
Decided March Reconsideration denied March Alloy Robbins, Robbins Ross Littlefield, Richard L. Belinfante Alloy, Gage, appellant.
Jason S. Joshua B. F. Belinfante, Rachel for Propst Harry Caldwell, DeLoach, Jr., Caldwell, & Harmon W. W. MacDougald, Jeremy appellee. Moeser, M. for
A15A1878. v. THE STATE. KING Judge. Boggs, King appeals robbery, Travis from his convictions for armed aggravated possession weapon during assault, and two counts a felony. the commission of a He asserts that trial court erred in charges jury, improperly evidence, admission of in its to the and grounds commenting on the evidence. He also four raises ineffec- explained below, tive assistance of For counsel. the reasons we affirm. The record that a shows customer was at the a counter of said, convenience store when a man entered the store and “[G]et stickup.” down . . . is a The customer turned around “and when gun Initially thinking “somebody [he] turned the hit [him].” teasing up,” gun up, [him],” [his] customer “threw hand kicked “get my and said customer, out s**t face.” The man cursed
placed gun stomach, into the customer’s and forced him going only floor, to the floor. After to the the customer could hear what gunman gunman money said. The then demanded and instructed complied the store clerk not to look at him. The clerk with the gunman’s demands and called after the assailant left.
The robber wore a dark handkerchief tied around his nose and talking slipped mouth, but “when it he was down.” The customer just (pointing).” “[i]t testified that slid down At about here another point testimony, agreed slipped chin, his he down to the but trial evidence evidence at trial tioning court the verdict erred 172) (2014) (“[T]he fault to a by taking form.”) presented nonparty. an issue (citations omitted). that issue (2012); should [defendants that shouldbe left to the Whether Double ViewVentures v. away have from the been have [defendants left for a burden jury”); jury completely Polite, would have met that burden establish Couch Red to determine. omitting rational Roof Accordingly, Inns, basis for [nonparty] (1) (b) (757 given the trial appor from got he The customer testified that explain where on the chin. did or “if I ever see him hear police, look at him” and informed good “a person’s forget You don’t voice again recognize I would him. his voice it.” and cock He your barrel stomach they put face when a double telephone for that, working experience testified based on also the average person. hears voices more than years, for 25 he company *2 “a double customer, gun avid described the as sportsman, The an inches approximately long. 19-20 shotgun,” barrel sawed-off investigation in their for about a police The had no solid leads an a seeking a from inmate they $100 until received letter year,1 bragging robbing about he overheard another inmate reward because the did not Although King, letter name particular the store involved. pinpoint Kang enable the to enough it information to contained the explained the that man would be suspect. Specifically, a letter as man identified “where the was jail September out of and getting The received a reward. from.” inmate never photo array featuring investigating developed King The officer customer, promptly men it to the who and five other and showed The victim testified that he “was 99 King identified as assailant. from but wanted to hear his voice pictures, sure the percent [he] identification, that Based on you forget because never voice.” King was arrested. later, the customer to listen arranged
A few the officer for weeks room, in a different and the customer identified King speaking to testified, The “I didn’t gunman. voice as of the customer him, let they just who never me see let person was____They know the the same voice three me hear his voice.” The customer later heard telephone. on the He that he learned after the explained times relatives,” and that he received robbery King that he and are “distant call, time collect'phone King. accepted King calls from The first he the The then “what replied asked “what do.” customer going [he] report He did not these conversations you do think I’m to do.” going he in” later. to the district office until was “called months attorney’s clerk, robbery aggra- of the charged King State armed customer, possession shotgun assault of the of a sawed-off vated possession of a during robbery, the commission of an armed and aggravated the assault. shotgun during sawed-off commission an Defense counsel filed motion in limine exclude evidence the on the pretrial photo King ground customer’s identification sought any also photo array prejudicial. prevent the Counsel lineup point during period, photographic At customer shown a some this time the depicted King, identify persons the that did not include and he did not as robber. ground by in-court identification on photo tainted that would be array. Following hearing, court trial denied motion. trial, At the customer identified as man who had store, assaulted him and robbed the identified inmate bragging committing the man he had overheard about the crimes. following The inmate testified also about details of crime that King: robbery location, he had learned from use a sawed-off shotgun, placing gun telling get stomach, in the man’s the man to taking robbery. floor, $6,500 on in the around The store clerk $5,200 $1,500 testified that the robber in recently pled took in cash checks. On cross-examination, guilty the inmate admitted that he had charge.
to a cocaine Multiple King’s family defense witnesses testified hosted a neighborhood party evening robbery back-to-school party occurred. The location was a 30-minute from the drive store party people that was robbed. The was attended 50-100 and was neighbor located the street “around houses.” As one acknowl- edged, way “there was no see who was there all of the time.” This neighbor party p.m., robbery, left the 9:00 over hour before the neighbor, p.m. which occurred between 10:00 10:30 Another who *3 King good him, was also related to and “real friends” with claimed King party hour, that he would have noticed if had left the an but for would not have noticed if left for ten he five or minutes. Another also King present party, trip testified that was for the entire other than a the store lasted that around five minutes. King party time, sister testified that was at the the entire acknowledged party but that she left the and between 10:00 11:00 p.m. neighbor King party, Another testified that was at the but “money collecting people remembered him the from who were there to go get to the store and some more beer and ice.”He testified that gone longer than or ten minutes. five
Finally, King’s party mother testified the ended between p.m. and 10:30 11:00 and claimed on direct examination that was there the entire time because she he was the co-host. let him “wouldn’t leave” since
During cross-examination, she admitted that go get “[h]e left once to some ice.” The also that the mother testified money pay exchange customer witness contacted her to ask that she testifying against they for him not her son. admitted that She never attempt- met and that she never contacted the him authorities about ing money. to extort King guilty
The found on all He for a counts. moved new timely appeal trial, but the trial court denied the motion. This followed. failing King argues to exclude the trial court erred in
1. upon photographic pretrial ofhim based customer’s identification lineup. “Evidentiary rulings are under an abuse of discre reviewed deferential as the standard, is different from and not as tion clearly erroneous/any which... v. [Cit.]” Reeves evidence standard review. Supreme (755 673, 676 The Court 294 Ga. Georgia of ‘any as “at characterized “abuse discretion” standard of least has
slightly “not test” and less deferential than evidence’ (Citations quite ‘clearly erroneous’ test.” as deferential as omitted.) punctuation Reed
(2012). explained It also necessary appellate find it to use more
sometimes the courts single than review to evaluate a trial-court one standard of findings accept ruling. Thus, contexts, in various we factual they clearly trial are erroneous and review a court’s unless ultimate decisionon particular for issue abuse ofdiscretion. omitted.) (Citations punctuation case, Id. trial court testimony hearing on the motion to exclude identification held explanation. simply motion We therefore and apply denied the without of discretion standard of review. See Green v. abuse (2012). lineup (a) step analysis first is to consider whether the impermissibly supra, suggestive. Green, And determining procedure fair, the “[i]n whether an identification array by police question photographs used could is not whether (Footnote omitted.) nearly perfect.’ Pinkins [Cit.]” ‘have been more 275) (2009). Here, as the dissent depicted acknowledges, array race in the are all same “[t]he men complexion general hair —”2 And while and have the same facial quality King’spicture there are differences between discernible pictures photo lineup, our have and the other five “repeatedly courts clarity slight shading, size, in the held differences lineup photographs used in an identification will render punctuation lineup impermissibly suggestive.” (Citations omit *4 ted.) supra, Green, at 291 Ga. photograph the
In
where differences between
defendant’s
lineup
cases
argue
compared
photographs
the
in a
are used to
to all of
other
depicted
agree
the
that the facial features
in two of
We cannot
the dissent’s view
pictures
“nearly
picture
imperceptible”
if
shows
are
it cannot be determined another
hairlines,
lineup clearly
man.
men in
similar
and their facial features
a bald
All ofthe
the
have
recognizable.
are
by admitting
identification,
that the trial court
an
erred
this court
frequently has found no abuse of discretion because the trial court
lineup
impermissibly
authorized
conclude that the
was not
suggestive.
Redding
(4) (769
State,
471,
See
Ga.
SE2d
(2015) (defendant’s photograph
plain
background
“had
white
while
photographs
gray backgrounds”);
the other
had
Green,
identical
supra,
(6) (defendant’s photo
closeup
than the five other King’s photograph noticeably mere fact that itself is different from lineup impermissibly not, does more, others without render the suggestive. lineup likely sugges impermissibly
Indeed, a is less to be found “physical photographs tive when there are differences in the them (as opposed persons pictured photographs).” selves the App. in the supra, Pinkins, also 20. See Marshall v. 201) (2009) (“The fact defendant’s only
photograph depicting gold one necklace did not make photographic line-up unduly suggestive, ‘especially when there lineup having roughly are other individuals in the the same charac [Cit.]”).3 particularly teristics and features as accused.’ This is suggestive police showing true where there has been conduct when photographic array supra, Pinkins, to the witness. See (no App. procedure showing display at 21 indication used in improper); supra, Rutland, to the witness was 296 Ga. at 474 (no suggestion suspect depicted photographs one of six shown); Williams v. 264
(2003) (officer suggested perpetrator). never that defendant undisputed lineup case, this that the was not shown the improper way. customer in The detective did testified that he not “anything specific” lineup merely tell the customer about page anyone asked him to look “to at it see if on had committed suggestions photographs He crime.” made no about which customer should or should choose. The customer also testified viewing lineup likely comparing We note that a witness will be more focused on physical persons depicted memory perpetrator of the features with his visual than identifying photographs different characteristics of the themselves. *5 photograph suggested he that he should select and no one what
that memory.4 the For above-stated based on his all selected photo reasons, that the trial court was authorized conclude the procedures impermissibly lineup graph were not and concomitant suggestive. step necessary
(b) the second it is not to conduct While analysis, authorized to conclude I that the trial court was also believe no it that likelihood of the evidence before there substantial from irreparable misidentification. opportunity regard to view the robber at to the customer’s
With crime, initial adamant from his interview [he] the time the he was got good police see[s] him” and that “if ever that he “a look at the recognize again his would him. You don’t hear[s] [he] him or forget person’s voice your they put a voice face when a double barrel standing enough close to the and cockit.” The customer was stomach put gun he into stomach. While testified that for him to the his robber the handkerchief slip way did the
over face not down all the robber’s robbery, explained just during “[i]t the slid down about here he also point, agreed slipped (pointing).” down At the that one customer explain court, chin, the The trial but did not where on chin. rather the seeing pointed court, this had the benefit of where witness than opportunity to evaluate his to view robber’s face. disagree “attention I with the dissent’s view the customer’s solely because he was also not have been focused on robber” could experienced weapon. That hunter was able to able to describe weapon possibility times not exclude that at describe the does solely upon the robber’s face. And the custom- was focused attention eloquence describing should lack of the robber’s facial features er’s forget testimony that he never robber’s face not render his would meaningless. “Experience many persons may lack the teaches... ability description person they a have seen to articulate detailed a yet identify sight.” Odom, him on Israel v. 521 F2d can still (C) previously (I) (7th 1975). Cir. And we have concluded existed in a in which likelihood of misidentification case substantial police perpetrator but also the victim could describe the recognize Garlington if he him.” he would him saw testified “that suspect police he customer have a in mind” when While the officer stated that told the “we photos,” telephoned general not render the him “to come at some statement did he lineup look impermissibly suggestive. “Although police displaying lineup a to a victim or officer suspect, telling lineup police person should that the contains the officer’s such witness avoid very lineup lineup impermissibly suggestive fact that a does not make since a statement (Punctuation omitted.) Mobley being suggests suspect is therein.” conducted that a contained here, did not tell the And officer particular lineup suspect shown to him. customer was in State, 268 Ga. The customer’s forget statement great that he would never the robber’s face also shows a degree of attention. percent
The customer testified that he was 99 certain after viewing photographic lineup police and that he told the “if I ever absolutely percent hear his I will I voice be sure. ... wanted to you forget couple hear his voice because never that voice.”A of weeks person’s later, voice, asked him to come listen the customer identified it as the robber’s voice. He testified that he *6 person was____They they him, “didn’t who the know never let me see just let me hear his The voice.” detective testified that the customer King’s photograph identifying never had hesitation before identify King’s lineup that he also was able voice.5 While year robbery, previously occurred one after the this court has found no involving signifi substantial likelihood of misidentification in cases lapses cant time of between the crime and the identification. See App. (630 127) (2006) State, v. Bonner 278 Ga. 856-857 SE2d months); (three App. (2) (510 Qadir v. Ga. SE2d (two months); Cummings App. v. 233 Ga. (4) (505 73) (1998) (two years); Crumbley State, 808-809 App. months). (1988) (five Finally, persuaded by upon by arewe not the two cases relied support by dissent to its view that the trial court abused its discretion failing irrepa- to conclude that there was a substantial of likelihood App. rable misidentification. See Sims v. 244 Ga.
133) (2000) (physical precedent only); App. Banks of Both these cases involved more problematic showup by one, identification. In witness told they enough had information to arrest the defendant after gave “tepid following showup she a identification” a identification. supra, (1). They identify Sims, at later asked her to photographic lineup during in a the man she had seen the crime during showup. supra, Banks, Id. In the defendant seated in patrol identify perpetrator, a car asked when witness was suspect having the victim failed to describe the a beard before the showup, explained discrepancy by stating “could that he not paid person’s too well” see and had not too much attention to the face. supra, Banks, at 329 contrast, previously photographic lineup when the customer shown another at a point police investigation, identify any persons depicted different not in the he did as the
robber. admitting King by erred the cus- the trial court
2. claims that of it was identification him because tainted in-court tomer’s lineup. allegedly suggestive of is rendered moot This claim error upon holding in Division 1. our based giving jury a the trial court erred
3. contends committing aggravated that was assault a method of instruction on alleged The record shows the indictment in the indictment. committing aggravated alleged methods one of three alternative Specifically, (a) (2001).6 the in § 16-5-21 assault. See former OCGA unlawfully upon alleged “did an make assault dictment deadly weapon, shotgun, person [the with sawed off customer] shotgun by pointing [customer], and stomach of said face said apprehension immediately placing [customer] said reasonable receiving injury.” a violent charge portions to the include: the trial court’s
Relevant charged charged He four counts. He is with robbery, possession aggravated assault, of a sawed- armed during robbery, shotgun of an armed off possession commission shotgun during the commission
of sawed-off aggravated assault. prove every proof upon the burden of rests State *7 every allegation material indictment and essential charged beyond reasonable doubt. element of crimes a charged aggravated Now, with assault. And... he is also you going charge in that I’m to Official Code connection part: person Georgia, 16-8-41, Title which reads a aggravated person assault when that commits offense rape person murder, with the intent to or or assaults another deadly weapon; object, device, rob; or a or with an offensively against person a is instrument which used when bodily likely injury. actually does result in serious to or injury to [,] To constitute an assault actual the other only necessary person that the need not be shown. It is aggravated person assault when he or she assaults: 6 A commits offense rob; murder, rape, (1) to intent or to With which, object, device, deadly weapon a or with or instrument With offensively against person, likely actually or when a does result in serious used bodily injury; or persons legal justification discharging person a firearm A or without person persons. from motor toward a within a vehicle beyond evidence show a reasonable doubt an intention to injury person, coupled apparent commit on another with the ability injury, person to commit that or that the other intentionally placed apprehension in reasonable of immedi- ately receiving injury a violent from the defendant. you Georgia charge
In that I connection that under law you firearm, a or in if this instance believe a sawed-off deadly shotgun, weapon. is a considering pre- testimony after
[I]f and evidence you, together charge you [to] Court, sented with the beyond should find and believe a reasonable doubt that this Upson County alleged defendant in on did or about the date aggravated in this indictment assault, commit the offense of you, you as I have defined that for then would be authorized guilty; to find the defendant and in that event the form ofthe jury, guilty verdict would be: find the We defendant of... aggravated assault. jurors, you’re going
Now to have this indictment form you begin your out with .... [D]on’t deliberations until I’ve you pieces sent indictment, the various of evidence paper complete submitted, been have as well as some the other three verdicts on.7 right
It is well that “[a] established criminal defendant’s to due process may endangered charges when, here, be an indictment committing specific defendant with a in a crime manner and the trial jury may court’s committed in manner other instruction defines the crime as act which be alleged than manner in the indict- ment. [Cits.]” Harwell v. jury deviating A instruction from will the indictment violate process support
due if “there is evidence to on conviction unalleged committing manner of to and the crime is not in specified instructed limit its to the manner consideration (Emphasis supplied.) determining [Cit.]” indictment. “And in Id. charge ‘jury error, whether a contained instructions must be read and ” (Citations omitted.) considered as whole.’ State, and footnote Holman v. *8 App. (b) (ii) (765 393, 400-401 jury place robbery charge The trial court instructed the to its verdict for the armed on the charges paper reverse side of the indictment its the other verdict for three on blank provided. be would support presented to a conviction in case evidence was
While (assault committing unalleged the crime with intent manner of on an “required prove jury rob), to that the State was to the was instructed every allegation every essential of the indictment material beyond charged a reasonable doubt.” Addition of the crimes element beginning jury ally, to at the the indictment the the trial court read during their deliberations. it out with them trial and also sent the jury average “Taking charge whole, that a as a we conclude by charge, intelligence and that the been confused would have charge properly on which the set forth basis trial court’s [aggravated [King] assault].” on the count authorized to convict omitted.) (Citations, punctuation Clemens and footnote supra, App. Holman, See also Ga. charge jury being (2) (b) (ii) (defect in “cured at 400 provided the State and the instruction “that with the indictment” allegations prove beyond all a reasonable doubt material must charged”); Boat elements of crimes indictment and all essential (1) (e) (707 right 272-273 (same). improperly King on the the trial commented
4. asserts that court following During trial, the § of OCGA 17-8-57. evidence colloquy violation prosecutor, place court, the trial took between robbing bragged about conve- inmate who testified that store: nience okay, Okay. August Now, on about STATE]:
[THE you Mr. to hear a did have an occasion conversation having? King was Yes,
[WITNESS]: sir. you Mr. in this STATE]: And do see Travis [THE courtroom? Yes,
[WITNESS]: sir. please, you identify him for me sir? [THE STATE]: Can (Pointing.) [WITNESS]: reflect he’s identified STATE]: Let record
[THE defendant. COURT]: noted.
[THE So pro- applicable trial, 17-8-57, § Former OCGA during any part: judge case, criminal its vided in “It is error for opinion express charge jury, progress or intimate or in his proved guilt has or as accused.” to what has or not been *9 response prosecutor’s Here, however, the trial court’s two-word to the request express opinion did not an or intimate as to what had had proved. King concedes, not been person As the witness identified as the prison who “confessed to him while he was incarcerated in the system,” customary language and the trial court used the to let the record 560, reflect that he did so. See Ford v. (783 906) (2016) (where expert ballistics testified that bullets gun, from retrieved decedents’ bodies fired from were a .40 caliber gun trial court’s statement that “there is that the evidence that shot people caliber,” the bullets that killed these were .40 was not an opinion veracity itself); about the also evidence see Lobdell v. 799) (1987) (finding trial court’s questions clarifying to witness her identification of defendant after merely “present improper). she testified that he was in court” were not This enumeration is therefore without merit. Allen8, King argues giving
5.
that the trial court
erred
charge using
disapproved by
Supreme
language
Georgia.
Court of
162) (2004),
Supreme
In Burchette v.
677-678 jury charged began record The reveals that the and then p.m. jury deliberations at 2:56 The returned to the courtroom at 4:55 p.m., certainly foreperson, and the court asked the “I am aware that right jury it is now at 5:00 o’clock I to do [sic],and want whatever this you stay longer I wants to do. First want to do know want awhile tonight? you foreperson Or do want to come back The tomorrow?” replied, stay longer tonight, Honor, “I would rather Your come jury making back if tomorrow.” But when the court asked progress, foreperson said, “No, sir,” some court informed the States, See U. Allen United S. SCt 41 LE again “[ejleven, one.” the court asked When that the vote was stay longer tonight,” good foreperson awhile if “would be ... tonight.” foreperson responded “I don’t think we’ll reach decision jury evening for the and announced then dismissed the court jury morning. the next Before the would reconvene at 8:30 the court appropriate morning, began found it the next court to deliberate foreperson’s light follows, in statement to instruct they “[ejleven, day one,” had before that vote considering time: this case for considerable been required. And a unanimous verdict
It is the law that *10 juror of and this must be the conclusion each while verdict acquiescence jurors in order to reach an of not a mere jurors necessary agreement, all ofthe to examine it is still for questions to with candor and submitted them the issues and regard proper in to the for and deference fairness and with proper regard judgment opinion of others of other. A for each judgment. greatly forming us in our own will aid — by jury Now, case has must be decided some this jury this And in same manner that was selected. selected jury qualified no think that a better than there is you reason to be chosen. could ever juror arguments the others
Each must listen to of jury disposition If the members of with a to be convinced. opinion in the evidence the difference of differ their view of closely them all to scrutinize evidence more should cause your opinions. grounds and to reexamine duty has submit- Your is to decide this issue which been conferring conscientiously you you, you In if can do so. ted to pride opinion lay and in mind should aside all mere bear place up maintaining jury taking for and that in room is controversy spirit either side of the cause. jurors you in mind that as are not You should ever bear keep for either side. The aim to in view is to be advocates only appears evidence, from the as it from the truth place case, in took examine that evidence that given you. light and the law that I have of the instructions jurors, going Foreperson, time, I’m At this Madam your jury you go to the room and continue to ask back may You retire. deliberations. jury
(Emphasis supplied.) returned to minutes after Fifteen foreperson overnight break, the announced after the deliberate jury following jury verdict, the polled, had reached a And verdict. juror
and each affirmed the verdict reached. supra, Burchette, Just as in “because the ‘must-be-decided’ lan- guage portion constituted but one small of an otherwise balanced and charge, charge impermissibly Allen fair did not render the coer- (Citations omitted.) cive.” and footnote at 3. court jurors cautioned the acquiescence that the verdict not to be mere jurors agreement, in order to reach an any opinion jurors difference of should cause the closely, scrutinize the evidence more and that the aim was to keep appeared the truth in evidence, view as it from the light judge, considered of the court’s instructions . . . the though importance admonishing juries making firm express opinion verdicts, was careful not to intimate or propriety any particular as to verdict, nor he did make any suggestion tending any particular group to coerce jurors agree with the others.
(Citations punctuation omitted.) Scott v.
King argues
proof
of the coercive nature of the court’s
instruction is shown
the fact that the
returned a verdict 15
being
charge.
given
Lowery
minutes
after
Id. We have made such a determination here. Even if this case had charge possibility
presented coercive, we have that the Allen length before of deliberations in a with no evidence of held case showing charge, coercion there was the Allen and after following polled and each where, here, the verdict Drogan juror his or her verdict. affirmed (2) (613 charge circumstances, the was not coercive Under these Allen provide does a basis for reversal. therefore not and he assistance of coun- received ineffective 6. contends (a) present attorney’s upon to obtain and based his trial failure sel expert testimony request eyewitness (b) identification; on the issue of jury charge of witness’s level of included consideration a of a certainty; object
(c)
to exclude evidence of the
failure to
or move
(d)
pretrial
customer;
and
failure to move
identification
voice
testimony
bolstering
by a
officer. In
to exclude cumulative
ruling
assistance,
on claim of ineffective
[ujnder
two-part
test established in Strickland Wash-
ington,
(1984),
2052, 80 LE2d
545 Hughley App. (769 (4) 537) (2015). State, 786, v. 791 SE2d reviewing performance
When a claim that trial counsel’s applies strong presumption deficient, this Court performance range counsel’s falls within the wide ofreason- professional presumption particu- able assistance. This is larly where, here, difficult to overcome trial counsel not is testify. available to
(Citations punctuation omitted.) State, Jones 567 307) (2015). SE2d That trial counsel unavailable due to her untimely following [King] death the trial “does not relieve of his heavy proving (Citation burden of [ofcounsel].” ineffective assistance punctuation omitted.) (b), State, 295 Hicks v. Ga. 276 n. (759 509) (2014).
(a)
We find no merit in
claim that
trial counsel was
failing
present
expert
eyewitness
ineffective for
an
witness on
Supreme
recognized
identification. As the
Court
in Glass v.
(712
851) (2011),
Ga. 542
holding
(
[t]he
in Johnson v.
(Citations punctuation emphasis original.) omitted; Id. (6) (d). presume strategic Here, we must that trial counsel made a expert strategy, witness, decision to call and “trial tactics and may they appear hindsight, however mistaken are almost never adequate grounds finding they for trial counsel ineffective unless are patently competent attorney so unreasonable that no would have (Citation punctuation omitted.) Villegas chosen them.” 334 Ga. previously recognized strategic court
This has valid reasons for deciding present expert. not to such an Breland v. 439) (2007), “trial counsel testified she chose not pursue expert eyewitness evidence of an identification because doing prompted
she feared that so would have the state to do the ultimately same, which she believed would [the] have harmed defense.” Id. at We concluded tactical “[t]rial counsel’s decision *13 expert outweighed potential introducing its evidence such the risks of performance.” Win Id. See also not deficient benefits did constitute (629 548) (2006) (2) App. 618, 620-621 SE2d v. 278 Ga. field expert testify strategic (trial to to about decision not hire counsel’s photographic upon unreliability eyewitness identifications based of assistance). Accordingly, lineups we did not amount to ineffective expert present not decision to that trial counsel’s cannot conclude attorney patently testimony no reasonable so unreasonable that similar decision. have made a would by jury requesting
(b) King a trial counsel erred contends that certainty. charge a level of the to consider witness’s that advised Supreme 2003, the decision was tried in Court’s At the time case (instructing (614 766) (2005) State, 279 SE2d in v. Ga. Brodes certainty), charging on a witness’s level of courts to refrain from trial general duty yet at “There is no on not been decided. Id. 443. had anticipate changes part . . .” of to in law. defense counsel omitted.) punctuation (Citations, State, 277 Rickman v. and footnote Georgia (2) 596) (2003). Although (587 courts already may apply tried, to sometimes new decision cases long-standing precedent that, not alter the when that does addressing counsel, of the reason- a claim of ineffectiveness of conduct is examined from counsel’s ableness counsel’s perspective Thus, a new decision does not time oftrial. require argue apply to in a that would counsel manner beyond precedent anticipate existing of substance opinion before was issued. Rudolph, punctuation omitted.) (Citation Williams examining perspective 472) (2015). After trial counsel’s requested charge including trial, the fact that the at the time of pattern jury instruction, we cannot conclude that trial counsel then was failing Supreme anticipate Court’s decision ineffective for to supra.9 And, to trial Brodes, if we were assume that counsel even counsel should third edition of when in 2003 the atGa. issued before Pattern cautionary Supreme [2000] 436-437, n. 3. observation [of Jury Court note cites to the Instructions, the date of his not have concerning the third Brodes, supra, pretermitted criminal However, edition split following requested Vol. Criminal trial volume of the we cannot determine from the II: opinion use of issued, footnote in 2003. the level of among ‘level Cases, Additionally, Suggested state Brodes, whether the level certainty Par. certainty’ portion submitted no evidence appellate 1.35.10 supra, Pattern the 2000 decision referenced portion Supreme courts] (c), pp. Jury support of certainty 27-28 caused Instructions Court’s pattern his contention that (3rded. 2003).” 279 charge. the editors of the charge this edition was opinion charge: Suggested should be insert a exactly by "Our performed deficiently by requesting pattern jury charge, King prejudiced by request given cannot show that he was other linking him the evidence crime. See Rabie v. (b) 833) (2008) (ineffective claim assistance upon requesting certainty charge level
based failed “there where [eyewitness] was evidence in addition to identification which linked robbery”); [defendant] to the Peeler
(b) (649 775) (2007) (ineffective assistance of counsel claim eyewitness failed where evidence in addition identification linked crime). King’s jailhouse case, defendant to In this admissions also linked him to the crimes.
(c)Kangargues that trial counsel was ineffective because she did object pretrial move to exclude evidence voice identifi Again, presume *14 cation customer. we must that trial counsel strategic made a to decision not move to this exclude evidence or object App. to its admission State, at trial. Thomas v. 273 Ga. (4) (b) (615 196) (2005) (presuming strategic SE2d trial counsel made suppress upon decision not to file a motion to identification based suggestive photo array). strategic we
And cannot conclude that a such decision be would patently “Although show-ups unreasonable. one-on-one have been sharply inherently suggestive, criticized, and are the identification long need not be excluded as as under all the circumstances the proce- notwithstanding suggestive identification was reliable App. (2) (425 915) State, 544, dure.” v. 206 546 SE2d Ga. Jefferson (1992). King’s previously The customer identified voice after identi- fying photo array imper- in him a we have concluded not missibly suggestive. Here, the customer asked to hear a to voice procedure identification, confirm his visual the voice identification separately photographic lineup, was conducted from the he did not King listening spoken by King voice, view while to the the words were robbery, percent not the same as those used in the certain of and he was 100 percent being his voice identification after certain of his King lineup. Consequently, photographic identification of in the “the subsequent may show-up merely [voice] be characterized as confir- matory despite suggestive procedure.” reliable, and therefore (III) (744 170) (2012). (A) State, 484, Gibbs v. 403 S.C. SE2d See supra, (I) (A)(“[w]here, Israel, here, also 521 F2d at 1374 the victim suspect by sight, heard voice a after had him she identified charge,... continued and while some courts have such discontinued use of “note[d] certainty’ language charge eyewitness other courts continue to include the ‘level their on State, 213, (3) 143) (b), identification.” Jones v. 273 Ga. n. 17 SE2d objectionable probably show-up if she less than identification] is [a him”). yet had not identified circumstances, there likelihood these substantial
Under motion cannot misidentification, failure to file a meritless and the Lupoe State, 284 Ga. assistance of counsel. v. amount to ineffective 133) (2008). upon (3) (f) (669 Moreover, based SE2d 576, pretrial identifications, as well as and in-court customer’s jailhouse demonstrate admission, we cannot conclude shortcoming failing prejudice alleged to seek exclu- from counsel’s Campbell App. State, 228 See sion of the voice identification. 477) (finding any (2) (c) (491 (1997) 258, error SE2d 261-262 “the victim had of voice identification harmless because admission photo lineup”). unequivocally in a [the defendant] identified (d) remaining assistance, asserts claim of ineffective objected to the officer’s testi- counsel should have trial mony pretrial identifications. the customer’s visual voice about “ strategy usually obj that will ect is a matter oftrial [A]decision claim ineffective assistance counsel.” not amount to valid (e) (755 (1) Hudson v. 325 Ga. presume strategic
Here, object decision not to must that counsel made we testimony, that such a decision and we cannot conclude patently been unreasonable. See Ellis v. would have 276, (presuming (4) (e) (736 counsel’s 286-287 object strategic); Heard v. choice not to (rejecting (c) (769 917) (2015) ineffective assistance of counsel impeach prior failure claim because trial counsel’s witness presumed strategic); Ponder statements be inconsistent (2015) (rejecting (2) (b) *15 of claim because trial counsel articu- ineffective assistance counsel strategic objecting testimony lated a decision for not bolstered testimony). the victim’s Ellington, Doyle, Judgment J., Andrews, J., J., P. C. P. affirmed. specially judgment Branch, J., Miller, J., and in
and concur. P. concurs only. Phipps, fully 3, 5, J., in P. in Divisions 4 and concurs concurs only judgment 6, 1 in in Divisions and 2. Division dissents concurring specially. Presiding Judge, MILLER, opinion fully majority’s (b), 4, 2, 3, in I concur in the Divisions disagree separately, 5, however, because I and 6. I write array (a) photo majority’s in that the conclusion Division impermissibly suggestive. record, I find that the After a review of very troubling unduly sugges- array photo used in this case was Accordingly, tive. the trial court should excluded have this evidence. subsequent independent Nevertheless, the witness’s voiceand in-court perpetrator resulting identification of as the cured the taint impermissible photo array. King’s from the I would therefore affirm conviction. protects Due
The Process Clause from defendant “the admis- deriving suggestive procedures.” sion evidence from identification Biggers, (III) (93 375, Neil v. 409 U. S. SCt 34 LE2d “pretrial procedures Thus, it is crucial identification comport requirements with certain minimum constitutional in order (2) (309 to insure fairness.” Ralston 251 Ga. SE2d 135) (1983). Whether such evidence should be excluded involves a inquiry procedure threshold into “whether the identification impermissibly suggestive.” v. State, Gravitt 149) (1977). photo array.
1. The array photo my was, shown to the in case in witness impermissibly suggestive view, fact, as a matter of and as a matter of multiple photo, King’s law. The differences hand, between on the one photos, immediately other, and the other five on the draw viewer King’s eyes inevitably to photo King’s lead the viewer to conclude one — — suspect. looking photos array,
In at the six in included viewer immediately King’s eyes brighter notices that are and more distinc- shading photos there, tive. From one sees that in the other five grainy photos. darker. A film is obvious over other men’s In all but King’s photo, pictures clearly were cut out from another docu- Additionally, images, nearly impossible ment. in two it is determine the facial features of those individuals. King’s photo background, contrast,
In is clear. It has a white any shading grainy pronounced. without or filter. features are looking array, eyes immediately Thus, at the one’s are drawn to King’s photo [King] with the “all but inevitable identification as the perpetrator.” (Citation punctuation omitted.) Williams (2002); 622,623 see also Clark v. (7) (b) 6,Ga. “slight law, size,
Under the relevant case in differences shading, clarity photographs lineup . . . will not render the impermissibly suggestive.” Reddingv. (4)(769 67) (2015). Redding, that, Court went on conclude having photo array “lighter background issue, viewed the general, background Redding’s photograph particular, and the
550 suggestive.”10 lineup impermissibly more the
does without render not single King’s just (Emphasis supplied.) case, there is not Id. the that make difference, it is the differences in combination and clearly presents array troubling. the that this I thus conclude case photo permissible array into one that that shifts “more” suggestive highly prejudicial. impermissibly It was therefore and photo identification into evi the trial court to admit this error for dence. Independent 2. identification. constitutionally if identification is not inadmissible
An “in-court upon prior indepen depend the identification but has it does not omitted.) (Citations punctuation origin.” dent Wilson (562 primary (3) “The evil to be 275 59 Ga. irreparable misidentifica avoided is the substantial likelihood Lindsey tion.”
(citing Alabama, 1999, LE2d U. S. 1 SCt Coleman v. irreparable (1970)). here. no likelihood of misidentification There is robbery, police, I see him or “[I]f the witness told ever After recognize similarly again told I him.” He later hear his voice police would “absolutely voice, that, if ever heard the robber’s he would be he suspect 100percent of a When later asked to listen to voice sure.” — — identify did and whom the could not see whom witness King’s without identified voice as robber the witness hesitation.
Moreover,
trial,
at
identified
robber.
witness
you
your
at all about
identi-
When asked “have
ever been uncertain
immediately responded,
qualification,
fication,” without
witness
supra,
forget
Wilson,
“No,I
that.”
The witness’s King’s light equally voice, in certain identification of shows sufficiently independent photo the in-court identification array process. supra, (III). satisfy Biggers, U. due S. at 196 Considering suggestiveness photo circumstances, of the all array independent, subsequent, and voice did not taint the in-court Nevertheless, Margaret thus cross arrays thus cannot see Redding, It is all the more difficult to because, Wolfe compare apples supra, line. although Hungerford, my eye, Molly images case apples. distinguish law Baum (4), As the instructs we King’s are not saying that line array And we are not able privy goes, “slight show more than between “beauty differences” do not images permissible is in “slight those behold those eye differences” prior cross that impermissible beholder.” cases images. line, King. supra, (I). Coleman, identification of See 399 U. S. at Accord- ingly, I would affirm convictions. *17 Presiding Judge, concurring part dissenting
PHIPPS, in and in part. fully majority opinion.
I 3, 4, concur in Divisions and 5 of the But by failing because I believe the trial court committed reversible error pretrial photographic to exclude the customer’s and in-court identi- perpetrator, respectfully fications of as the I dissent from judgment only 1 Divisions and 2.1 concur in the as to Division 6. appeal, pretrial photo “On we will reverse a conviction based on a photographic lineup impermissibly sug identification if the was so gestive very irreparable that there exists a substantial likelihood of photo array impermissibly suggestive misidentification.”11 A is “if it leads the witness to an all but inevitable identification of the defen perpetrator, equivalent telling dant as the or is the of the authorities ”12 suspect.’ majority witness, ‘This is our notes, As the we review for abuse of discretion the trial court’s denial of a motion to exclude pretrial photo evidence aof identification.13 And while “abuse of discretion” review, is a deferential standard of it “is not toothless”14 “require appellate rubber-stamp” and does not courts to the trial court’s decision.15 (a) opinion, majority
1. In Division 1 of its concludes that the photo array impermissibly suggestive in this case was not because “slight shading, clarity photographs size, differences in the used lineup lineup impermissibly in an identification will not render the suggestive.”16 array qualitatively But the in this case involves five homogenous photographs suspects, of men who were not and one — — photograph King’s plainly differs from all the in others shading, clarity, background, terms of ingly, and level of contrast. Accord array equivalent police telling was the the customer suspect. was their array, exactly The in which was included the record itas was customer, shown to the contains sixblack-and-white headshots mount- 11 State, (1) (693 549) (2010) (punctuation Jones v. 303 Ga. SE2d and footnote omitted). 12 (punctuation omitted). Id. and footnote 13 Lovelady App. 788, See 307 Ga. (3) (727 112) (2012) (citation punctuation Reed v. omitted). (Barnes, J., concurring Frazier v. P. part dissenting part). in 668) (2012) (citations punctuation Green v. omitted). depicted three. The men in two rows of ed on a manila folder general complexion and have the same all the same race array are quality from the hair, picture markedly differs King’s and facial but to have been photocopies appear five are other five.17 other differently-toned paper, separate onto a sheet of pasted cut and Moreover, heads. their outlines these men’s gray scissored halo are of such light between and dark and show minimal contrast images King’s are difficult to discern.18 their features poor quality hand, displays halo and a keener gray the other has picture, on — particu dark that renders his features light contrast between — those of the other men. prominent far more than larly eyes immediately drawn to the viewer’s attention Consequently, taken at a different conclusion is that was image, and the obvious different camera than all the rest.19 location or with a unique only King’s differences conspicuous The combination of majority, which this case from those cited picture distinguish *18 among image qualities.20 one or two only minor variations involved multiple pictures in all differ from each other This is not a case which obtained them from various suggesting in that quality, tone, here, background, with the same sources; pictures there are five — contrast, only picture King’s and one shading, clarity, and level likely viewing lineup majority be more focused on writes that “a witness will memory persons depicted comparing physical of the of the with his visual features photographs Maj. op. perpetrator identifying characteristics of the themselves.” than different authority support (a), majority provides (1) citation to or evidence to this n. 3. But the photographs ignore quality speculation. assuming of the in Even that the customer could physical content, ability meaningful comparison to make a of the men’s favor of their by poor quality images Eng’s. severely hampered of all the save features was may bald, example, may not be and the facial features oftwo others For one ofthe men or monochromatically gray they nearly imperceptible. are are so 19Indeed, Eng’s picture jurisdiction, testified that he obtained from another the officer files.” whereas the other five came “from [his] Green, photo arrays example, objected picture in used For in the defendant that his two closeup photos.” identify Id. The him of a shot and more detail than the other was “more ha[d] arrays concluding Supreme rejected viewing differences claim after that the Court this photograph only slight” and that “his not the to which the defendant referred were “indeed [was] Id.; App. array clarity.” with as much see also Pinkins one each photo 275) (2009) (qualitative did not differences between defendant’s and the others viewing lineup they “slight” witnesses were told before invalidate because were and because by any background scenery, photographs lineup taken since are sometimes not “to be distracted variety sources”); from a Rutland v. at various locations or obtained array effectively slight 506) (2009) (detective minimized who had assembled photo computerized process enlarge picture quality by using defendant’s differences in color, provide uniformity quality, produce lineup “to more in the in black and white 906) (1995) (our background photos”); Brewer v. picture photograph array defendant’s contention that “the tone ofhis review of the showed that — only six-person array demonstrably lighter than the other five” difference in the — merit”). was “without mentioned defendant — only that looks different. Nor is this a case in which the difference King’s image shading tone, between and the others is one of as all pictures except for are far less clear and also contain an they indicating unmistakable scissored outline cut and were pasted background. Finally, being “slight,” onto a different rather than sufficiently pronounced the differences here are the viewer quickly photographs source, realizes that five of the came from one King’s, alone, short, whereas was obtained elsewhere. In “oneofthese things is not like the others.”21 King’s picture only
Because is the one that stands out in these multiple, immediately ways, only visible is the one that differs qualitative way arguably only others, from the is the one which image clarity is identification, shown with sufficient to enable an array effectively proclaimed police’s suspect. array impermissibly suggestive, Therefore, the and the trial by finding court erred otherwise. question totality whether,
2. The next under the of the circum impermissibly suggestive photo array stances, the led to a substan irreparable tial likelihood of misidentification.22 Factors relevant to inquiry include (1) opportunity the witness’s to view the accused at the time (2) degree (3) crime; attention; of the accuracy the witness’s prior description accused; of the witness’s of the certainty the witness’s level of at the confrontation with the length accused; and oftime between the crime and the question is, confrontation. The ultimate whether under the totality circumstances, of the the identification is reliable.23 only weighing reliability Here, the factor in favor of the pretrial customer’s identification is his claim that he was certain *19 uniformly go way. it.24The other factors the other opportunity The customer had little to view the robber. The only minutes, time, entire incident lasted a few and for half ofthat up. customer was on the floor and had been told not to look The 21 — Raposo Stone, Things, Joe and Jon One of These on Sesame Street Book & Record Original (Columbia Records, 1970). Cast 22 State, 274, Heng App. (2) (554 243) (2001). See v. 251 Ga. 276 SE2d 23 (citation punctuation omitted). Id. 24 identification, light potential problems eyewitness juries may We note that in with longer certainty deciding consider a “witness’s in his/her identification as a factor to be used in reliability State, 435, (614 766) (2005) of that identification.” v. Brodes 279 Ga. 442 SE2d (footnote omitted). 554 by a dark handkerchief. covered from the nose down
robber’s face was slipped handkerchief down customer testified that the Although him, slip it “didn’t all the spoke the robber he clarified when full the robber’s face.25 Thus, never had a view of way.” the customer robber, solely not have been focused on And his attention could a double weapon describe the in detail as because he was able to length. 20 inches in approximately 19 to shotgun barrel sawed-off incident, the customer immediately gave after the Additionally, robber, of the height weight an estimate police only, approximate trial, At testified that any about facial features.26 he no details give.27 the best one he could description very general the incident and the cus year passed an entire between Critically, memory his could not have been viewing photo array, so tomer’s circumstances, likeli Under these there was a substantial fresh.28 misidentification, court abused its trial irreparable hood of identi pretrial photo to exclude the customer’s by failing discretion King.29 fication of taints a subse improper pretrial generally
3. An identification “had identification unless the in-court identification quent in-court from the identification.30 cases independent origin” pretrial witnesses have testified independent origin, we have found an which defendant from the crime or that their they apart knew the crime, identifications were based on their memories of in-court arrays.31 There was no evidence pretrial photo not on 25 Rutland, irreparable Compare, e.g., supra (2) (no likelihood of at 475 substantial perpetrator, “face-to-face” with where victim had “unrestricted view” of stood misidentification features, minutes, paid particular attention to his facial and recalled that him for three very manner”). “nostrils flared in a distinctive 26 maj ority eloquence describing the robber’s facial discounts the customer’s “lack of gave features,” maj. op. (1) (b), the customer at 536 but there is no evidence in the record that features, ineloquent any description facial or otherwise. of man’s 27 State, 763, (658 382) (2008) (no Compare App. substantial Price v. 289 Ga. 766 SE2d irreparable to sketch misidentification where victim was able to describe assailant likelihood lineup photo). artist, generated composite “very to defendant’s who sketch that was similar” 28 State, 164, 481) (2004) (no Compare, e.g., McIvory App. (2) (b) v. 168 SE2d Ga. photo array three after likelihood of misidentification where victim viewed hours substantial robbery). 823, App. (1) (537 133) (2000) (physical precedent See Sims impermissibly suggestive pretrial only) (reversing on identification where conviction based only general good opportunity burglar’s face and described him victim did not have a to view App. particularly distinctive”); see also Banks v. terms that “were (3) (454 (citation punctua Thompson 24) (2013) Sims, supra; omitted); see also Tiller v. tion 31 See, (in-court by pretrial e.g., Thompson, supra identification was not tainted at 47 photo array identification of defendant “was based because witness testified that her in-court years”); neighbor daughter period familiarity with him as a and friend of her over a on her *20 independent origin Although pointed King here. the customer person court him, as the who had assaulted the customer was not — explain asked —and did not Thus, basis for that identification. by we cannot assume that the in-court identification was not tainted prior, impermissibly suggestive photo array. Finally, improper pretrial 4. the admission of the and in-court identifications was not harmless error. The never found the gun robbery, physical linking used in the and there was no evidence King to the crime. Other than the identifications,32 customer’s only against King testimony other evidence was the of a convicted hoped King bragging felon, reward, who for a that he had overheard — multiple about Moreover, the crime. offered an alibi defense hosting neighborhood witnesses testified that he was at home block party robbery when the occurred. by admitting
Because the trial court committed harmful error pretrial the customer’s and in-court identifications of as the robber, I would reverse convictions. 2016.
Decided March appellant. Adams, Jr., W.Allen for Attorney, Ballard,
Scott L. Smith, District Jr., Robert W. Assis- Attorney, appellee. tant District for
A15A2334. AND MAYOR CITY COUNCIL OF THE CITY OF
RICHMOND HILL et al. v. MAIA. Presiding Judge.
Ellington, appeal by following This arises from an Maia, action Laura Lane daughter, Sydney against the death Sanders, suicide of her mayor “City”) city City (collectively, council of the of Richmond Hill Douglas Sahlberg, capaci in his individual and official seeking compensatory punitive damages wrongful ties, death, for Tiller, supra (in-court independent origin at 841 identification had an where witness “testified seeing appellant room, apartment’s laundry that he based his identification on outside the holding television, picture appellant burglar/’). and not on the he viewed after the 32 One of those identifications was a voice identification that occurred after the customer identification was the presented array, and footnote shown the he must have realized omitted). photo array. 132) (2005) (“a other voices for a basis of And because the customer had auditory equivalent that was But, one-on-one as the likely King’s majority of a one-on-one comparison. showup already notes, voice he was inherently suggestive”) See Butler v. maj. op. showup, identified hearing. as the customer was not at 547 King through (c), (punctuation the voice photo