KING v. The STATE.
Travis King appeals from his convictions for armed robbery, aggravated assault, and two counts of possession of a weapon during the commission of a felony. He asserts that the trial court erred in the admission of evidence, in its charges to the jury, and by improperly commenting on the evidence. He also raises four grounds of ineffective assistance of counsel. For the reasons explained below, we affirm.
The record shows that a customer was at the counter of convenience store when a man entered the store and said, “[G]et down ․ this is a stickup.” The customer turned around “and when [he] turned the gun hit [him].” Initially thinking that “somebody was teasing [him],” the customer threw [his] hand up,” kicked the gun up, and said “get that s* *t out of my face.” The man cursed at the customer, placed the gun into the customer's stomach, and forced him to the floor. After going to the floor, the customer could only hear what the gunman said. The gunman then demanded money and instructed the store clerk not to look at him. The clerk complied with the gunman's demands and called the police after the assailant left.
The robber wore a dark handkerchief tied around his nose and mouth, but “when he was talking it slipped down.” The customer testified that “[i]t slid down just about here (pointing).” At another point in his testimony, he agreed that it slipped down to the chin, but did not explain where on the chin. The customer testified that he got “a good look at him” and informed the police, “if I ever see him or hear his voice again I would recognize him. You don't forget a person's voice or face when they put a double barrel in your stomach and cock it.” He also testified that, based on his experience working for a telephone company for 25 years, he hears voices more than the average person. The customer, an avid sportsman, described the gun as “a double barrel sawed-off shotgun,” approximately 19–20 inches long.
The police had no solid leads in their investigation for about a year,1 until they received a letter from an inmate seeking a $100 reward because he overheard another inmate bragging about robbing the particular store involved. Although the letter did not name King, it contained enough information to enable the police to pinpoint King as a suspect. Specifically, the letter explained that the man would be getting out of jail in September and identified “where the man was from.” The inmate never received a reward.
The investigating officer developed a photo array featuring King and five other men and showed it to the customer, who promptly identified King as his assailant. The victim testified that he “was 99 percent sure from the pictures, but [he] wanted to hear his voice because you never forget that voice.” Based on this identification, King was arrested.
A few weeks later, the officer arranged for the customer to listen to King speaking in a different room, and the customer identified King's voice as that of the gunman. The customer testified, “I didn't know who the person was․ They never let me see him, they just let me hear his voice.” The customer later heard the same voice three times on the telephone. He explained that he learned after the robbery that he and King are “distant relatives,” and that he received collect phone calls from King. The first time he accepted the call, King asked “what [he] was going to do.” The customer then replied “what do you think I'm going to do .” He did not report these conversations to the district attorney's office until he was “called in” months later.
The State charged King with armed robbery of the clerk, aggravated assault of the customer, possession of a sawed-off shotgun during the commission of an armed robbery, and possession of a sawed-off shotgun during the commission of an aggravated assault. Defense counsel filed a motion in limine to exclude evidence of the customer's pretrial photo identification of King on the ground that the photo array was prejudicial. Counsel also sought to prevent any in-court identification on the ground that it would be tainted by the photo array. Following a hearing, the trial court denied the motion.
At trial, the customer identified King as the man who had assaulted him and robbed the store, and the inmate identified King as the man he had overheard bragging about committing the crimes. The inmate also testified about the following details of the crime that he had learned from King: the robbery location, use of a sawed-off shot-gun, placing the gun in the man's stomach, telling the man to get on the floor, and taking around $6,500 in the robbery. The store clerk testified that the robber took $5,200 in cash and $1,500 in checks. On cross-examination, the inmate admitted that he had recently pled guilty to a cocaine charge.
Multiple defense witnesses testified that King's family hosted a neighborhood back-to-school party the evening that the robbery occurred. The party location was a 30–minute drive from the store that was robbed. The party was attended by 50–100 people and was located in the street “around the houses.” As one neighbor acknowledged, “there was no way to see who was there all of the time.” This neighbor left the party at 9:00 p.m., over an hour before the robbery, which occurred between 10:00 and 10:30 p.m. Another neighbor, who was also related to King and “real good friends” with him, claimed that he would have noticed if King had left the party for an hour, but would not have noticed if he left for five or ten minutes. Another also testified that King was present for the entire party, other than a trip to the store that lasted around five minutes.
King's sister testified that King was at the party the entire time, but acknowledged that she left the party between 10:00 and 11:00 p.m. Another neighbor testified that King was at the party, but remembered him collecting “money from the people who were there to go to the store and get some more beer and ice.” He testified that King was gone no longer than five or ten minutes.
Finally, King's mother testified that the party ended between 10:30 and 11:00 p.m. and claimed on direct examination that King was there the entire time because she “wouldn't let him leave” since he was the co-host. During cross-examination, she admitted that “[h]e left once to go get some ice.” The mother also testified that the customer witness contacted her to ask that she pay money in exchange for him not testifying against her son. She admitted that they never met and that she never contacted the authorities about him attempting to extort money.
The jury found King guilty on all counts. He moved for a new trial, but the trial court denied the motion. This timely appeal followed.
1. King argues that the trial court erred in failing to exclude the customer's pretrial identification of him based upon the photographic line-up. “Evidentiary rulings are reviewed under an abuse of discretion standard, which ․ is different from and not as deferential as the clearly erroneous/any evidence standard of review. [Cit.]” Reeves v. State, 294 Ga. 673, 676(2), 755 S.E.2d 695 (2014). The Supreme Court of Georgia has characterized the “abuse of discretion” standard as “at least slightly less deferential than the ‘any evidence’ test” and “not quite as deferential as the ‘clearly erroneous' test.” (Citations and punctuation omitted.) Reed v. State, 291 Ga. 10, 13(3), 727 S.E.2d 112 (2012). It also explained that “sometimes the appellate courts find it necessary to use more than one standard of review to evaluate a single trial-court ruling. Thus, in various contexts, we accept factual findings unless they are clearly erroneous and review a trial court's ultimate decision on the particular issue for abuse of discretion.” (Citations and punctuation omitted.) Id. In this case, the trial court held a hearing on the motion to exclude the identification testimony and simply denied the motion without explanation. We therefore apply an abuse of discretion standard of review. See Green v. State, 291 Ga. 287, 293(6), 728 S.E.2d 668 (2012).
(a) The first step of the analysis is to consider whether the line-up was impermissibly suggestive. Id. And “[i]n determining whether an identification procedure was fair, the question is not whether the array of photographs used by police could ‘have been more nearly perfect.’ [Cit.]” (Footnote omitted.) Pinkins v. State, 300 Ga.App. 17, 20–21, 684 S.E.2d 275 (2009). Here, as the dissent acknowledges, “[t]he men depicted in the array are all the same race and have the same general complexion and facial hair․”2 And while there are discernible differences between the quality of King's picture and the other five pictures in the photo line-up, our courts have “repeatedly held that slight differences in the size, shading, or clarity of photographs used in an identification line-up will not render the lineup impermissibly suggestive.” (Citations and punctuation omitted.) Green, supra, 291 Ga. at 293(6), 728 S.E.2d 668.
In cases where differences between the defendant's photograph compared to all of the other photographs in a lineup are used to argue that the trial court erred by admitting an identification, this court frequently has found no abuse of discretion because the trial court was authorized to conclude that the lineup was not impermissibly suggestive. See Redding v. State, 296 Ga. 471, 474(4), 769 S.E.2d 67 (2015) (defendant's photograph “had a plain white background while the other photographs had identical gray backgrounds”); Green, supra, 291 Ga. at 293(6), 728 S.E.2d 668 (defendant's photo “more of a close-up shot and has more detail than the other photos”); Pinkins, supra, 300 Ga.App. at 20–21, 684 S.E.2d 275 (defendant's “picture showed him with his head more tilted than any of the other men pictured in the lineup”); Rutland v. State, 296 Ga.App. 471, 474(2), 675 S.E.2d 506 (2009) (defendant's photo less sharp than others in the lineup); Brewer v. State, 219 Ga.App. 16, 20(6), 463 S.E.2d 906 (1995) (picture tone of defendant's photograph “demonstrably lighter than the other five persons”). Therefore, the mere fact that King's photograph itself is noticeably different from the others does not, without more, render the lineup impermissibly suggestive.
Indeed, a lineup is less likely to be found impermissibly suggestive when there are “physical differences in the photographs themselves (as opposed to the persons pictured in the photographs).” Pinkins, supra, 300 Ga.App. at 20, 684 S.E.2d 275. See also Marshall v. State, 285 Ga. 351, 352(2), 676 S.E.2d 201 (2009) (“fact that defendant's photograph was the only one depicting a gold necklace did not make the photographic line-up unduly suggestive, ‘especially when there are other individuals in the lineup having roughly the same characteristics and features as the accused’ [Cit.]”).3 This is particularly true where there has been no suggestive police conduct when showing the photographic array to the witness. See Pinkins, supra at 21, 684 S.E.2d 275 (no indication that procedure used in showing the display to the witness was improper); Rutland, supra, 296 Ga.App. at 474, 675 S.E.2d 506 (no suggestion that suspect depicted in one of the six photographs shown); Williams v. State, 264 Ga.App. 115, 117(1), 589 S.E.2d 676 (2003) (officer never suggested that defendant was the perpetrator).
In this case, it is undisputed that the line-up was not shown to the customer in an improper way. The detective testified that he did not tell the customer “anything specific” about the lineup and merely asked him to look at it “to see if anyone on this page had committed the crime.” He made no suggestions about which photographs the customer should or should not choose. The customer also testified that no one suggested what photograph he should select and that he selected King based on his memory.4 For all of the above-stated reasons, the trial court was authorized to conclude that the photograph lineup and concomitant procedures were not impermissibly suggestive.
(b) While it is not necessary to conduct the second step of the analysis, I believe that the trial court was also authorized to conclude from the evidence before it that there was no substantial likelihood of irreparable misidentification.
With regard to the customer's opportunity to view the robber at the time of the crime, he was adamant from his initial interview with the police that he got “a good look at him” and that “if [he] ever see[s] him or hear[s] his voice again [h]e would recognize him. You don't forget a person's voice or face when they put a double barrel in your stomach and cock it.” The customer was standing close enough to the robber for him to put the gun into his stomach. While he testified that the handkerchief over the robber's face did not slip down all the way during the robbery, he also explained “[i]t slid down just about here (pointing).” At one point, the customer agreed that it slipped down to the chin, but did not explain where on the chin. The trial court, rather than this court, had the benefit of seeing where the witness pointed and to evaluate his opportunity to view the robber's face.
I disagree with the dissent's view that the customer's “attention could not have been focused solely on the robber” because he was also able to describe the weapon. That an experienced hunter was able to describe the weapon does not exclude the possibility that at times his attention was focused solely upon the robber's face. And the customer's lack of eloquence in describing the robber's facial features should not render his testimony that he would never forget the robber's face meaningless. “Experience teaches ․ that many persons may lack the ability to articulate a detailed description of a person they have seen and yet can still identify him on sight.” Israel v. United States, 521 F.2d 1370, 1375(I)(C) (7th Cir.1975). And we have previously concluded that no substantial likelihood of misidentification existed in a case in which the victim could not describe the perpetrator to the police but also testified “that he would recognize him if he saw him.” Garlington v. State, 268 Ga.App. 264, 265(9), 601 S.E.2d 793 (2004) The customer's statement that he would never forget the robber's face also shows a great degree of attention.
The customer testified that he was 99% certain after viewing the photographic lineup and that he told the police “if I ever hear his voice I will be absolutely 100 percent sure․ I wanted to hear his voice because you never forget that voice.” A couple of weeks later, the police asked him to come and listen to a person's voice, and the customer identified it as the robber's voice. He testified that he “didn't know who the person was․ They never let me see him, they just let me hear his voice.” The detective testified that the customer never had any hesitation before identifying King's photograph and that he was also able to identify King's voice.5 While the line-up occurred one year after the robbery, this court has previously found no substantial likelihood of misidentification in cases involving significant lapses of time between the crime and the identification. See Bonner v. State, 278 Ga.App. 855, 856–857, 630 S.E.2d 127 (2006) (three months); Qadir v. State, 235 Ga.App. 884, 885(2), 510 S.E.2d 362 (1998) (two months); Cummings v. State, 233 Ga.App. 806, 808–809(4), 505 S.E.2d 73 (1998) (two years); Crumbley v. State, 189 Ga.App. 384, 385(1), 375 S.E.2d 482 (1988) (five months).
Finally, we are not persuaded by the two cases relied upon by the dissent to support its view that the trial court abused its discretion by failing to conclude that there was a substantial likelihood of irreparable misidentification. See Sims v. State, 244 Ga.App. 823, 537 S.E.2d 133 (2000); Banks v. State, 216 Ga.App. 326, 454 S.E.2d 784 (1995). Both of these cases involved the more problematic show-up identification. In one, the witness was told by police that they had enough to arrest the defendant after she gave a “tepid identification” following a show-up identification. Sims, supra, 244 Ga.App. at 826(1), 537 S.E.2d 133. They later asked her to identify in a photographic line-up the man she had seen during the crime and during the show-up. Id. In Banks, supra, the defendant was seated in a patrol car when the witness was asked to identify the perpetrator, the victim failed to describe the suspect as having a beard before the show-up, and explained this discrepancy by stating that he “could not see too well” and had not paid too much attention to the person's face. Banks, supra, 216 Ga.App. at 329(3), 454 S.E.2d 784.
2. King claims that the trial court erred by admitting the customer's in-court identification of him because it was tainted by the allegedly suggestive line-up. This claim of error is rendered moot based upon our holding in Division 1.
3. King contends that the trial court erred in giving a jury instruction on a method of committing aggravated assault that was not alleged in the indictment. The record shows that the indictment alleged one of three alternative methods of committing aggravated assault. See former OCGA § 16–5–21(a) (2001).6 Specifically, that King “did unlawfully make an assault upon the person of [the customer] with a sawed off shotgun, a deadly weapon, by pointing said shotgun at the face and stomach of said [customer], placing said [customer] in reasonable apprehension of immediately receiving a violent injury.”
Relevant portions of the trial court's charge to the jury include:
He is charged with four counts. He is charged with armed robbery, aggravated assault, possession of a sawed-off shotgun during the commission of an armed robbery, and possession of a sawed-off shotgun during the commission of an aggravated assault.
The burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crimes charged beyond a reasonable doubt.
Now, he is also charged with aggravated assault. And ․ in that connection I'm going to charge you the official Code of Georgia, Title 16–8–41, which reads in part: a person commits the offense of aggravated assault when that person assaults another person with the intent to murder, rape or rob; or with a deadly weapon; or with an object, device, or instrument which when used offensively against a person is likely to or actually does result in serious bodily injury.
To constitute an assault actual injury to the other person need not be shown. It is only necessary that the evidence show beyond a reasonable doubt an intention to commit injury on another person, coupled with the apparent ability to commit that injury, or that the other person was intentionally placed in reasonable apprehension of immediately receiving a violent injury from the defendant.
In that connection I charge you that under Georgia law a firearm, or in this instance if you believe a sawed-off shotgun, is a deadly weapon.
[I]f after considering the testimony and evidence presented [to] you, together with the charge of the court, you should find and believe beyond a reasonable doubt that this defendant in Upson County did on or about the date alleged in this indictment commit the offense of aggravated assault, as I have defined that for you, then you would be authorized to find the defendant guilty; and in that event the form of the verdict would be: We the jury, find the defendant guilty of ․ aggravated assault.
Now jurors, you're going to have this indictment form out with you ․ don't begin your deliberations until I've sent to you the indictment, the various pieces of evidence that have been submitted, as well as some paper to complete the other three verdicts on.7
It is well-established that “[a] criminal defendant's right to due process may be endangered when, as here, an indictment charges the defendant with committing a crime in a specific manner and the trial court's jury instruction defines the crime as an act which may be committed in a manner other than the manner alleged in the indictment. [Cits.]” Harwell v. State, 270 Ga. 765, 766(1), 512 S.E.2d 892 (1999). A jury instruction deviating from the indictment will violate due process if “there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment. [Cit.]” (Emphasis supplied.) Id. “And in determining whether a charge contained error, ‘jury instructions must be read and considered as a whole.’ “ (Citations and footnote omitted.) Holman v. State, 329 Ga.App. 393, 400(2)(b)(ii), 765 S.E.2d 614 (2014).
While evidence was presented in this case to support a conviction on an unalleged manner of committing the crime (assault with intent to rob), the jury was instructed that the State was “required to prove every material allegation of the indictment and every essential element of the crimes charged beyond a reasonable doubt.” Additionally, the trial court read the indictment to the jury at the beginning of the trial and also sent it out with them during their deliberations. “Taking the charge as a whole, we conclude that a jury of average intelligence would not have been confused by the charge, and that the trial court's charge properly set forth the basis on which the jury was authorized to convict [King] on the count of [aggravated assault].” (Citations, punctuation and footnote omitted.) Clemens v. State, 318 Ga.App. 16, 20(2), 733 S.E.2d 67 (2012). See also Holman, supra, 329 Ga.App. at 400(2), 765 S.E.2d 614(b)(ii) (defect in charge “cured by the jury being provided with the indictment” and the instruction “that the State must prove beyond a reasonable doubt all material allegations in the indictment and all essential elements of the crimes charged”); Boatright v. State, 308 Ga.App. 266, 272–273(1)(e), 707 S.E.2d 158 (2011) (same).
4. King asserts that the trial court improperly commented on the evidence in violation of OCGA § 17–8–57. During trial, the following colloquy took place between the trial court, the prosecutor, and the inmate who testified that King bragged about robbing the convenience store:
[The State:] Okay. Now, on or about August of 2002, okay, did you have an occasion to hear a conversation that Mr. King was having?
[Witness:] Yes, sir.
[The State:] And do you see Mr. Travis King in this courtroom?
[Witness:] Yes, sir.
[The State:] Can you identify him for me please, sir.
[The State:] Let the record reflect he's identified the defendant.
[The court:] So noted.
Former OCGA § 17–8–57, applicable to King's 2003 trial, provided in part: “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” Here, however, the trial court's two-word response to the prosecutor's request did not express or intimate an opinion as to what had or had not been proved. As King concedes, the witness identified King as the person who “confessed to him while he was incarcerated in the prison system,” and the trial court used the customary language to let the record reflect that he did so. See Ford v. State, –––Ga. ––––(5) (Case No. S15A1626, decided March 7, 2016) (where ballistics expert testified that bullets retrieved from decedents' bodies were fired from a .40 caliber gun, trial court's statement that “there is evidence that the gun that shot the bullets that killed these people were .40 caliber,” was not an opinion about the veracity of the evidence itself); see also Lobdell v. State, 256 Ga. 769, 774(8), 353 S.E.2d 799 (1987) (finding trial court's questions to witness clarifying her identification of defendant after she testified merely that he was “present in court” were not improper). This enumeration is therefore without merit.
5. King argues that the trial court erred in giving an Allen8 charge using language disapproved by the Georgia Supreme Court. In Burchette v. State, 278 Ga. 1, 596 S.E.2d 162 (2004), the Georgia Supreme Court held “that the statement that the case ‘must be decided by some jury’ is inaccurate,” and should no longer be used in the Allen charge. Id. at 2–3, 596 S.E.2d 162. But King was tried in 2003, a year before the decision in Burchette, “which is prospective in its application, and therefore does not control here. The question remains, however, whether the instruction given in this case is so coercive as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.” (Citation and punctuation omitted.) Widner v. State, 280 Ga. 675, 677–678(3), 631 S.E.2d 675 (2006).
The record reveals that the jury was charged and then began deliberations at 2:56 p.m. The jury returned to the courtroom at 4:55 p.m., and the court asked the foreperson, “I am certainly aware that it is now right at 5:00 o'clock, and I want to do whatever this jury wants to do. First I want to know do you want to stay awhile longer tonight? Or do you want to come back tomorrow?” The foreperson replied, “I would rather stay longer tonight, Your Honor, not come back tomorrow.” But when the court asked if the jury was making some progress, the foreperson said, “No, sir,” and informed the court that the vote was “[e]leven, one.” When the court again asked the foreperson if it “would be good ․ to stay awhile longer tonight,” the foreperson responded “I don't think we'll reach a decision tonight.” The court then dismissed the jury for the evening and announced that the court would reconvene at 8:30 a.m. the next morning. Before the jury began to deliberate the next morning, the court found it appropriate to instruct the jury as follows, in light of the foreperson's statement the day before that the vote was “[e]leven, one,” and that they had been considering this case for a considerable time:
It is the law that a unanimous verdict is required. And while this verdict must be the conclusion of each juror and not a mere acquiescence of jurors in order to reach an agreement, it is still necessary for all of the jurors to examine the issues and questions submitted to them with candor and fairness and with proper regard for and in deference to the opinion of each other. A proper regard for judgment of others will greatly aid us in forming our own judgment.
Now, this case has—must be decided by some jury selected in the same manner that this jury was selected. And there is no reason to think that a jury better qualified than you could ever be chosen.
Each juror must listen to the arguments of the others with a disposition to be convinced. If the members of the jury differ in their view of the evidence the difference of opinion should cause them all to scrutinize the evidence more closely and to reexamine the grounds of your opinions.
Your duty is to decide this issue which has been submitted to you, if you can conscientiously do so. In conferring you should lay aside all mere pride or opinion and bear in mind that the jury room is no place for taking up and maintaining in a spirit of controversy either side of the cause.
You should ever bear in mind that as jurors you are not to be advocates for either side. The aim to keep in view is the truth as it appears from the evidence, and only from the evidence that took place in this case, and to examine that in light of the instructions and the law that I have given you.
At this time, Madam Foreperson, and jurors, I'm going to ask you to go back to the jury room and continue your deliberations. You may retire.
(Emphasis supplied.) Fifteen minutes after the jury returned to deliberating after the overnight break, the foreperson announced that the jury had reached a verdict. And following the verdict, the jury was polled and each juror affirmed the verdict reached.
Just as in Burchette, supra, “because the ‘must-be-decided’ language constituted but one small portion of an otherwise balanced and fair Allen charge, it did not render the charge impermissibly coercive.” (Citations and footnote omitted.) 278 Ga. at 3, 596 S.E.2d 162. The court
cautioned the jurors that the verdict was not to be mere acquiescence of the jurors in order to reach an agreement, that any difference of opinion should cause the jurors to scrutinize the evidence more closely, and that the aim was to keep the truth in view as it appeared from the evidence, considered in light of the court's instructions ․ the judge, though firm in admonishing the importance of juries making verdicts, was careful not to intimate or express any opinion as to the propriety of any particular verdict, nor did he make any suggestion tending to coerce any particular group of jurors to agree with the others.
(Citations and punctuation omitted.) Scott v. State, 281 Ga.App. 106, 111(3), 635 S.E.2d 582 (2006).
King argues that proof of the coercive nature of the court's instruction is shown by the fact that the jury returned a verdict 15 minutes after being given the charge. In Lowery v. State, 282 Ga. 68, 646 S.E.2d 67 (2007), the Georgia Supreme Court determined that as a matter of law, similar inaccurate language in an Allen charge did not make the charge coercive because it was “but one small portion of an otherwise balanced and fair Allen charge. [Cit.]” Id. at 71–72(4)(a), 646 S.E.2d 67. The court then declined to address “appellant's effort to establish coercion by comparing the length of jury deliberations before and after the Allen charge was given.” Id. at 72(4)(a), 646 S.E.2d 67. The court held that the
[a]dditional factors mentioned in Burchette—the length of jury deliberations before and after the Allen charge and the jurors' reaffirmation of their verdict when polled—do not render a non-coercive charge coercive. Rather, these factors play an important role in determining coerciveness when there is a possibility the charge could be coercive, i.e., when it has not been determined as a matter of law that the charge is not coercive.
Id. We have made such a determination here. Even if this case had presented the possibility that the Allen charge was coercive, we have held in a case with no evidence of the length of deliberations before and after the Allen charge, that there was no showing of coercion where, as here, the jury was polled following the verdict and each juror affirmed his or her verdict. Drogan v. State, 272 Ga.App. 645, 648(2), 613 S.E.2d 195 (2005).
Under these circumstances, the Allen charge was not coercive and therefore does not provide a basis for reversal.
6. King contends that he received ineffective assistance of counsel based upon his trial attorney's (a) failure to obtain and present expert testimony on the issue of eyewitness identification; (b) request of a jury charge that included consideration of a witness's level of certainty; (c) failure to object or move to exclude evidence of the pre-trial voice identification by the customer; and (d) failure to move to exclude cumulative and bolstering testimony by a police officer. In ruling on a claim of ineffective assistance,
[u]nder the two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), [King] must prove both that his trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.
(Citations and punctuation omitted.) Harrison v. State, 313 Ga.App. 861, 865(3), 722 S.E.2d 774 (2012).
As a general rule, reasonable trial tactics and strategies do not amount to ineffective assistance of counsel. The decisions on which witnesses to call and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his or her client. Whether an attorney's trial tactics were reasonable is a question of law, not fact. When assessing the reasonableness of counsel's actions, a court must evaluate counsel's performance from his or her perspective at the time of trial. This Court reviews a trial court's ruling on an ineffective assistance claim on appeal by accepting the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. [Cits.]
Hughley v. State, 330 Ga.App. 786, 791(4), 769 S.E.2d 537 (2015). “When reviewing a claim that trial counsel's performance was deficient, this Court applies a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance. This presumption is particularly difficult to overcome where, as here, trial counsel is not available to testify.” (Citations and punctuation omitted.) Jones v. State, 296 Ga. 561, 567(4), 769 S.E.2d 307 (2015). That trial counsel is unavailable due to her untimely death following the trial “does not relieve [King] of his heavy burden of proving ineffective assistance of counsel.” (Citation and punctuation omitted.) Hicks v. State, 295 Ga. 268, 276(3)(b) n. 7, 759 S.E.2d 509 (2014).
(a) We find no merit in King's claim that trial counsel was ineffective for failing to present an expert witness on eyewitness identification. As the Supreme Court recognized in Glass v. State, 289 Ga. 542, 712 S.E.2d 851 (2011),
[t]he holding in Johnson v. State, 272 Ga. 254, 526 S.E.2d 549 (2000), concerning testimony of an expert in eyewitness identification does not stand for the proposition that defense counsel is required to call an expert witness at trial where one of the primary issues involved is eyewitness identification of the defendant, let alone the proposition that the failure to call such an expert witness amounts to ineffective assistance.
(Citations and punctuation omitted; emphasis in original.) Id. at 549(6)(d), 712 S.E.2d 851. Here, we must presume that trial counsel made a strategic decision not to call an expert witness, and “trial tactics and strategy, however mistaken they may appear with hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Citation and punctuation omitted.) Villegas v. State, 334 Ga.App. 108, 111(2), 778 S.E.2d 363 (2015).
This court has previously recognized valid strategic reasons for deciding not to present such an expert. In Breland v. State, 287 Ga.App. 83, 651 S.E.2d 439 (2007), “trial counsel testified she chose not to pursue evidence of an expert in eyewitness identification because she feared that doing so would have prompted the state to do the same, which she believed ultimately would have harmed [the] defense.” Id. at 88(3), 651 S.E.2d 439. We concluded that “[t]rial counsel's tactical decision that the risks of introducing such expert evidence outweighed its potential benefits did not constitute deficient performance.” Id. See also Winfield v. State, 278 Ga.App. 618, 620–621(2), 629 S.E.2d 548 (2006) (trial counsel's strategic decision not to hire expert to testify about unreliability of eyewitness identifications based upon photographic lineups did not amount to ineffective assistance). Accordingly, we cannot conclude that trial counsel's decision not to present expert testimony was so patently unreasonable that no reasonable attorney would have made a similar decision.
(b) King contends that trial counsel erred by requesting a jury charge that advised the jury to consider a witness's level of certainty. At the time this case was tried in 2003, the Supreme Court's decision in Brodes v. State, 279 Ga. 435, 614 S.E.2d 766 (2005) (instructing trial courts to refrain from charging on a witness's level of certainty), had not yet been decided. Id. at 443, 614 S.E.2d 766. “There is no general duty on the part of defense counsel to anticipate changes in the law․” (Citations, punctuation and footnote omitted.) Rickman v. State, 277 Ga. 277, 280(2), 587 S.E.2d 596 (2003). Although the Georgia courts may sometimes apply a new decision to cases already tried,
that does not alter the long-standing precedent that, when addressing a claim of ineffectiveness of counsel, the reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial. Thus, a new decision does not apply in a manner that would require counsel to argue beyond existing precedent and anticipate the substance of the opinion before it was issued.
(Citation and punctuation omitted.) Williams v. Rudolph, 298 Ga. 86, 89, 777 S.E.2d 472 (2015). After examining trial counsel's perspective at the time of trial, including the fact that the requested charge was then a pattern jury instruction, we cannot conclude that trial counsel was ineffective for failing to anticipate the Supreme Court's decision in Brodes, supra.9 And, even if we were to assume that trial counsel performed deficiently by requesting the pattern jury charge, King cannot show that he was prejudiced by the request given other evidence linking him to the crime. See Rabie v. State, 294 Ga.App. 187, 194(5)(b), 668 S.E.2d 833 (2008) (ineffective assistance claim based upon requesting level of certainty charge failed where “there was evidence in addition to [eyewitness] identification which linked [defendant] to the robbery”); Peeler v. State, 286 Ga.App. 400, 404(2)(b), 649 S.E.2d 775 (2007) (ineffective assistance of counsel claim failed where evidence in addition to eyewitness identification linked defendant to crime). In this case, King's jailhouse admissions also linked him to the crimes.
(c) King argues that trial counsel was ineffective because she did not object or move to exclude evidence of the pre-trial voice identification by the customer. Again, we must presume that trial counsel made a strategic decision not to move to exclude this evidence or object to its admission at trial. Thomas v. State, 273 Ga.App. 357, 362(4)(b), 615 S.E.2d 196 (2005) (presuming trial counsel made strategic decision not to file a motion to suppress identification based upon suggestive photo array).
And we cannot conclude that such a strategic decision would be patently unreasonable. “Although one-on-one show-ups have been sharply criticized, and are inherently suggestive, the identification need not be excluded as long as under all the circumstances the identification was reliable notwithstanding any suggestive procedure.” Jefferson v. State, 206 Ga.App. 544, 546(2), 425 S.E.2d 915 (1992). The customer identified King's voice after previously identifying him in a photo array that we have concluded was not impermissibly suggestive. Here, the customer asked to hear a voice to confirm his visual identification, the voice identification procedure was conducted separately from the photographic line-up, he did not view King while listening to the voice, the words spoken by King were not the same as those used in the robbery, and he was 100% certain of his voice identification after being 99% certain of his identification of King in the photograph line-up. Consequently, “the subsequent [voice] show-up may be characterized as merely confirmatory and therefore reliable, despite the suggestive procedure.” Gibbs v. State, 403 S.C. 484, 744 S.E.2d 170 (2012). See also Israel, supra, 521 F.2d at 1374(I)(A) (“[w]here as here, the victim heard the voice of a suspect after she had identified him by sight, [a show-up identification] is probably less objectionable than if she had not yet identified him”).
Under these circumstances, there was no substantial likelihood of misidentification, and the failure to file a meritless motion cannot amount to ineffective assistance of counsel. Lupoe v. State, 284 Ga. 576, 580(3)(f), 669 S.E.2d 133 (2008). Moreover, based upon the customer's pretrial and in-court identifications, as well as King's jailhouse admission, we conclude that King cannot demonstrate prejudice from counsel's alleged shortcoming in failing to seek exclusion of the voice identification. See Campbell v. State, 228 Ga.App. 258, 261–262(2)(c), 491 S.E.2d 477 (1997) (finding any error in admission of voice identification harmless because “the victim had unequivocally identified [the defendant] in a photo line-up”).
(d) In his remaining claim of ineffective assistance, King asserts that trial counsel should have objected to the police officer's testimony about the customer's pretrial visual and voice identifications. “[A] decision not to object is usually a matter of trial strategy that will not amount to a valid claim of ineffective assistance of counsel.” Hudson v. State, 325 Ga.App. 810, 815(1)(e), 755 S.E.2d 209 (2014). Here, we must presume that counsel made a strategic decision not to object to this testimony, and we cannot conclude that such a decision would have been patently unreasonable. See Ellis v. State, 292 Ga. 276, 286–287(4)(e), 736 S.E.2d 412 (2013) (presuming counsel's choice not to object was strategic); Heard v. State, 296 Ga. 681, 685(3)(c), 769 S.E.2d 917 (2015) (rejecting ineffective assistance of counsel claim because trial counsel's failure to impeach witness with prior inconsistent statements presumed to be strategic); Ponder v. State, 332 Ga.App. 576, 586(2)(b), 774 S.E.2d 152 (2015) (rejecting ineffective assistance of counsel claim because trial counsel articulated a strategic decision for not objecting to testimony that bolstered the victim's testimony).
I fully concur in the majority's opinion in Divisions 1(b), 2, 3, 4, 5, and 6. I write separately, however, because I disagree with the majority's conclusion in Division 1(a) that the photo array was not impermissibly suggestive. After a review of the record, I find that the photo array used in this case was very troubling and unduly suggestive. Accordingly, the trial court should have excluded this evidence. Nevertheless, the witness's subsequent independent voice and in-court identification of King as the perpetrator cured the taint resulting from the impermissible photo array. I would therefore affirm King's conviction.
The Due Process Clause protects a defendant from “the admission of evidence deriving from suggestive identification procedures.” Neil v. Biggers, 409 U.S. 188, 196(III), 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Thus, it is crucial that “pre trial identification procedures comport with certain minimal constitutional requirements in order to insure fairness.” Ralston v. State, 251 Ga. 682, 683(2), 309 S.E.2d 135 (1983). Whether such evidence should be excluded involves a threshold inquiry into “whether the identification procedure was impermissibly suggestive.” Gravitt v. State, 239 Ga. 709, 710(3), 239 S.E.2d 149 (1977).
1. The photo array
The photo array shown to the witness in this case was, in my view, impermissibly suggestive as a matter of fact, and as a matter of law. The multiple differences between King's photo, on the one hand, and the other five photos, on the other, immediately draw the viewer to King's eyes and inevitably lead the viewer to conclude that one photo—King's—was that of the suspect.
In looking at the six photos included in the array, the viewer immediately notices that King's eyes are brighter and more distinctive. From there, one sees that the shading in the other five photos is darker. A grainy film is obvious over the other men's photos. In all but King's photo, the pictures were clearly cut out from another document. Additionally, in two of the images, it is nearly impossible to determine the facial features of those individuals.
In contrast, King's photo is clear. It has a white background, without any shading or grainy filter. King's features are pronounced. Thus, looking at the array, one's eyes are immediately drawn to King's photo with the “all but inevitable identification of [King] as the perpetrator.” (Citation and punctuation omitted.) Williams v. State, 275 Ga. 622, 623(2), 571 S.E.2d 385 (2002); see also Clark v. State, 271 Ga. 6, 12(7)(b), 515 S.E.2d 155 (1999).
Under the relevant case law, “slight differences in the size, shading, or clarity of photographs ․ will not render the lineup impermissibly suggestive.” Redding v. State, 296 Ga. 471, 474(4), 769 S.E.2d 67 (2015). In Redding, the Court went on to conclude that, having viewed the photo array at issue, “the lighter background in general, and the background in Redding's photograph in particular, does not without more render the lineup impermissibly suggestive.”10 (Emphasis supplied.) Id. In King's case, there is not just a single difference, and it is the differences in combination that make the array troubling. I thus conclude that this case clearly presents the “more” that shifts a permissible photo array into one that was impermissibly suggestive and highly prejudicial. It was therefore error for the trial court to admit this photo identification into evidence.
2. Independent identification
An “in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin.” Wilson v. State, 275 Ga. 53, 59(3), 562 S.E.2d 164 (2002). “The primary evil to be avoided is the substantial likelihood of irreparable misidentification.” Id. (citing Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970)). There is no likelihood of irreparable misidentification here.
After the robbery, the witness told police, “[I]f I ever see him or hear his voice again I would recognize him.” He similarly later told police that, if he ever heard the robber's voice, he would be “absolutely 100 percent sure.” When later asked to listen to the voice of a suspect—whom police did not identify and whom the witness could not see—the witness identified King's voice as that of the robber without hesitation.
Moreover, at trial, the witness identified King as the robber. When asked “have you ever been uncertain at all about your identification,” the witness immediately responded, without qualification, “No, I haven't. You don't forget that.” See Wilson, supra, 275 Ga. at 59(3), 562 S.E.2d 164 (considering witnesses' statements that they were certain of their identifications).
The witness's certainty in identifying King in court, when viewed in light of his equally certain identification of King's voice, shows that the in-court identification was sufficiently independent of the photo array to satisfy due process. Biggers, supra, 409 U.S. at 196(III). Considering all of the circumstances, the suggestiveness of the photo array did not taint the subsequent, independent, in-court and voice identification of King. See Coleman v. Alabama, 399 U.S. 1, 4(I), 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). Accordingly, I would affirm King's convictions.
I concur fully in Divisions 3, 4, and 5 of the majority opinion. But because I believe the trial court committed reversible error by failing to exclude the customer's pretrial photographic and in-court identifications of King as the perpetrator, I respectfully dissent from Divisions 1 and 2. I concur in the judgment only as to Division 6.
“On appeal, we will reverse a conviction based on a pretrial photo identification if the photographic lineup was so impermissibly suggestive that there exists a very substantial likelihood of irreparable misidentification.”1 A photo array is impermissibly suggestive “if it 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.’ “2 As the majority notes, we review for abuse of discretion the trial court's denial of a motion to exclude evidence of a pretrial photo identification.3 And while “abuse of discretion” is a deferential standard of review, it “is not toothless”4 and does not “require the appellate courts to rubber-stamp” the trial court's decision.5
1. In Division 1(a) of its opinion, the majority concludes that the photo array in this case was not impermissibly suggestive because “slight differences in the size, shading, or clarity of photographs used in an identification line-up will not render the lineup impermissibly suggestive.”6 But the array in this case involves five qualitatively homogenous photographs of men who were not suspects, and one photograph—King's—that plainly differs from all the others in terms of shading, clarity, background, and level of contrast. Accordingly, the array was the equivalent of the police telling the customer that King was their suspect.
The array, which was included in the record exactly as it was shown to the customer, contains six black-and-white headshots mounted on a manila folder in two rows of three. The men depicted in the array are all the same race and have the same general complexion and facial hair, but King's picture differs markedly in quality from the other five.7 The other five are photocopies that appear to have been cut and pasted onto a separate sheet of differently-toned paper, as a scissored gray halo outlines these men's heads. Moreover, their images show minimal contrast between light and dark and are of such poor quality that their features are difficult to discern.8 King's picture, on the other hand, has no gray halo and displays a keener contrast between light and dark that renders his features—particularly his eyes—far more prominent than those of the other men. Consequently, the viewer's attention is immediately drawn to King's image, and the obvious conclusion is that it was taken at a different location or with a different camera than all the rest.9
The combination of conspicuous differences unique only to King's picture distinguish this case from those cited by the majority, which involved only minor variations among one or two image qualities.10 This is not a case in which multiple pictures all differ from each other in quality, suggesting that the police obtained them from various sources; here, there are five pictures with the same background, tone, shading, clarity, and level of contrast, and only one picture—King's—that looks different. Nor is this a case in which the only difference between King's image and the others is one of shading or tone, as all the pictures except for King's are far less clear and also contain an unmistakable scissored outline indicating that they were cut and pasted onto a different background. Finally, rather than being “slight,” the differences here are sufficiently pronounced that the viewer quickly realizes that five of the photographs came from one source, whereas King's, alone, was obtained elsewhere. In short, “one of these things is not like the others.”11
Because King's picture is the only one that stands out in these multiple, immediately visible ways, is the only one that differs in any qualitative way from the others, and arguably is the only one in which the image is shown with sufficient clarity to enable an identification, the array effectively proclaimed that King was the police's suspect. Therefore, the array was impermissibly suggestive, and the trial court erred by finding otherwise.
2. The next question is whether, under the totality of the circumstances, the impermissibly suggestive photo array led to a substantial likelihood of irreparable misidentification.12 Factors relevant to this inquiry include
(1) the witness's opportunity to view the accused at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the accused; (4) the witness's level of certainty at the confrontation with the accused; and (5) the length of time between the crime and the confrontation. The ultimate question is, whether under the totality of the circumstances, the identification is reliable.13
Here, the only factor weighing in favor of the reliability of the customer's pretrial identification is his claim that he was certain of it.14 The other factors uniformly go the other way.
The customer had little opportunity to view the robber. The entire incident lasted only a few minutes, and for half of that time, the customer was on the floor and had been told not to look up. The robber's face was covered from the nose down by a dark handkerchief. Although the customer testified that the handkerchief slipped down when the robber spoke to him, he clarified that it “didn't slip all the way.” Thus, the customer never had a full view of the robber's face.15 And his attention could not have been focused solely on the robber, because he was able to describe the weapon in detail as a double barrel sawed-off shotgun approximately 19 to 20 inches in length. Additionally, immediately after the incident, the customer gave the police only an approximate height and weight estimate of the robber, with no details about any facial features.16 At trial, he testified that this very general description was the best one he could give.17 Critically, an entire year passed between the incident and the customer's viewing of the photo array, so his memory could not have been fresh.18 Under these circumstances, there was a substantial likelihood of irreparable misidentification, and the trial court abused its discretion by failing to exclude the customer's pretrial photo identification of King.19
3. An improper pretrial identification generally taints a subsequent in-court identification unless the in-court identification “had an independent origin” from the pretrial identification.20 In cases in which we have found an independent origin, witnesses have testified that they knew the defendant apart from the crime or that their in-court identifications were based on their memories of the crime, not on the pretrial photo arrays.21 There was no evidence of any independent origin here. Although the customer pointed to King in court as the person who had assaulted him, the customer was not asked—and did not explain—the basis for that identification. Thus, we cannot assume that the in-court identification was not tainted by the prior, impermissibly suggestive photo array.
4. Finally, the admission of the improper pretrial and in-court identifications was not harmless error. The police never found the gun used in the robbery, and there was no physical evidence linking King to the crime. Other than the customer's identifications,22 the only other evidence against King was the testimony of a convicted felon, who hoped for a reward, that he had overheard King bragging about the crime. Moreover, King offered an alibi—multiple defense witnesses testified that he was at home hosting a neighborhood block party when the robbery occurred.
Because the trial court committed harmful error by admitting the customer's pretrial and in-court identifications of King as the robber, I would reverse King's convictions.
DOYLE, C.J., ANDREWS, P.J., ELLINGTON, P. J., and BRANCH, J. concur. MILLER, P.J., concurs specially and in the judgment only. PHIPPS, P.J., concurs fully in Divisions 3, 4 and 5; concurs in the judgment only in Division 6; and dissents in Divisions 1 and 2.