A Fulton County jury found Andre Russell guilty of hijacking a motor vehicle, OCGA § 16-5-44.1 (b); three counts of armed robbery, OCGA § 16-8-41 (a); three counts of aggravated assault with a deadly weapon, OCGA § 16-5-21 (a) (2); possession of a firearm during the commission of a felony, OCGA § 16-11-106 (b) (1); and fleeing or attempting to elude a police officer, OCGA § 40-6-395 (a). Russell appeals from the denial of his motion for new trial, contending that the trial court erred in admitting identification evidence, in giving a “level of certainty” jury charge, and in rejecting his claim of ineffective assistance of trial counsel. Finding no reversible error, we affirm.
Viewed in the light most favorable to the jury’s verdict,
On December 29, a police officer saw the stolen Honda, activated his patrol car’s blue lights and siren, and pursued the driver, who attempted to elude him. After the first officer briefly lost sight of the Honda, another officer spotted the car and continued the chase. The driver eventually lost control of the car, crashed it into a wall near a public park, and fled on foot. A third officer caught the driver at a
A few days later, the victims were asked to come back to the precinct to review three books containing large numbers of mug shots. The majority of the pictures in the mug shot books were predominantly African-American males. The victims were not told that Russell had been arrested or that his photograph had been placed in one of the mug shot books. The victims reviewed the mug shot books together and all selected Russell’s picture from one of the books they reviewed, identifying him as one of the men who had robbed them on December 27. The victims also identified Russell at trial.
At trial, Russell presented an alibi witness, a relative who testified that Russell was living with him and was at home on the night of the hijacking. The State impeached the witness, however, with evidence that Russell was living elsewhere on the night in question.
1. Russell contends the trial court erred in refusing to suppress the victims’ identification testimony because the testimony was tainted by an impermissibly suggestive pre-trial identification procedure which created a substantial likelihood of misidentification. We disagree.
When ruling on a motion to suppress, the trial court sits as the trier of facts, and its findings regarding them are not disturbed on appeal if there is any evidence to support them; the trial court’s decisions with regard to questions of fact and credibility must be accepted unless clearly erroneous, and a reviewing court construes the evidence most favorably to the trial court’s findings.
(Citations and punctuation omitted.) Whitmore v. State,
Testimony concerning a pre-trial identification of a defendant should be suppressed if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification. The taint which renders an identification procedure impermissibly suggestive must come from the method used in the identification procedure. An identification procedure is impermissibly suggestive when it*474 leads the witness to an all but inevitable identification of the defendant as the perpetrator, or is the equivalent of the authorities telling the witness, “this is our suspect.”
(Punctuation and footnotes omitted.) Brooks v. State,
Although allowing witnesses to view the same photographic arrays or mug shots at the same time is discouraged, as the first witness to make an identification may influence the other witnesses, such simultaneous viewing is not fatal to an identification. Escobar v. State,
2. Russell contends that the trial court erred by giving a “level of certainty” charge in instructing the jury on the reliability of eyewitness identification, a charge the Supreme Court of Georgia disapproved of in Brodes v. State,
In Brodes, the Supreme Court advised trial courts to refrain from instructing jurors that they may consider a witness’s level of certainty when assessing the reliability of an identification. Brodes v. State,
The victims in this case, unlike those in Brodes, gave descriptions of the robbers to the police immediately after the incident, including the fact that the man who robbed Hall wore his hair in shoulder-length “twists or dreads.” Hall told the police that she could identify the man who robbed her. Moreover, the victims each identified Russell’s picture from mug shot books. None of the victims repeatedly testified to being “positive” or “absolutely certain” of their
3. Russell contends that the court erred in denying his motion for new trial on the ground of ineffective assistance of counsel. Under Strickland v. Washington,
(a) Russell argues that his trial counsel was ineffective for not objecting to the “level of certainty” charge. We disagree. Russell cannot establish that he was prejudiced as a result of counsel’s decision for the same reasons discussed in Division 2, supra.
(b) Russell also contends that his counsel was ineffective for failing to request a charge informing the jury that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. Because the State adduced both direct (eyewitness testimony) and circumstantial evidence at trial in this case, the trial court was not required to charge the jury on circumstantial evidence pursuant to OCGA § 24-4-6, absent a request. See Stubbs v. State,
Because the State’s case rested primarily on direct evidence and because Russell relied on an alibi defense at trial, we cannot conclude that Russell’s trial counsel was deficient in declining to request a jury charge on circumstantial evidence. See Landers v. State,
Consequently, the trial court did not err in denying Russell’s motion for new trial on the ground of ineffective assistance of trial counsel.
Judgment affirmed.
Notes
Jackson v. Virginia,
The trial court instructed the jury:
Identity is a question of fact for you to determine. Your determination of identity is dependent upon the credibility of the witness or witnesses offered for this purpose. You should consider all of the factors previously charged you regarding credibility of witnesses. Some, but not all, of the factors you may consider in assessing the reliability of identification are: The opportunity of the witnesses to view the alleged perpetrator at the time of the alleged incident; the witness’s degree of attention*475 toward the alleged perpetrator at the time of the alleged incident; the level of certainty shown by the witness about his or her identification; the possibility of mistaken identity, whether the witness’s identification may have been influenced by factors other than the view that the witness claimed to have; and whether the witness on any prior occasion did not identify the defendant in this case as the alleged perpetrator.
(Emphasis supplied.)
Russell’s trial occurred in February 2009. OCGA § 17-8-58 (a), whichbecame effective on July 1, 2007, requires that a defendant “inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.” Failure to comply with subsection (a) “preclude [s] appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.” OCGA § 17-8-58 (b).