                                   WHOLE COURT

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                     March 30, 2016




In the Court of Appeals of Georgia
 A15A1878. KING v. THE STATE.

      BOGGS, Judge.

      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

      1
        At some point during this time period, the customer was shown a
photographic line-up, which did not include King, and he did not identify any of the
persons depicted as the robber.

                                          2
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

                                            3
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.

                                           4
      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

                                             5
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 SE2d 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 SE2d 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

                                           6
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 SE2d 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 SE2d 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


      2
        We cannot agree with the dissent’s view that the facial features depicted in
two of the pictures are “nearly imperceptible” and that it cannot be determined if
another picture shows a bald man. All of the men in the line-up clearly have similar
hairlines and their facial features are recognizable.

                                            7
lineup impermissibly suggestive.” (Citations and punctuation omitted.) Green, supra,

291 Ga. at 293 (6).

      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 SE2d 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)

(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 (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 SE2d 506) (2009) (defendant’s photo less

sharp than others in the lineup); Brewer v. State, 219 Ga. App. 16, 20 (6) (463 SE2d

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.

                                           8
      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. See also Marshall

v. State, 285 Ga. 351, 352 (2) (676 SE2d 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 (no indication that

procedure used in showing the display to the witness was improper); Rutland, supra,

296 Ga. App. at 474 (no suggestion that suspect depicted in one of the six

photographs shown); Williams v. State, 264 Ga. App. 115, 117 (1) (589 SE2d 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


      3
        We note that a witness viewing a lineup will likely be more focused on
comparing the physical features of the persons depicted with his visual memory of the
perpetrator than identifying different characteristics of the photographs themselves.


                                          9
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


      4
        While the police officer stated that he told the customer “we have a suspect
in mind” when he telephoned him “to come look at some photos,” this general
statement did not render the line-up impermissibly suggestive. “Although a police
officer displaying a lineup to a victim or witness should avoid telling the person that
the lineup contains the police officer’s suspect, such a statement does not make a
lineup impermissibly suggestive since the very fact that a lineup is being conducted
suggests that a suspect is contained therein.” Mobley v. State, 277 Ga. App. 267, 270
(1) (626 SE2d 248) (2006). And here, the officer did not tell the customer that the
suspect was in the particular lineup shown to him.


                                          10
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 F2d 1370, 1375 (I) (C) (7th Cir. 1975). And we have previously

                                           11
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 SE2d 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

      5
        In contrast, when the customer was previously shown another photographic
line-up at a different point in the police investigation, he did not identify any of the
persons depicted as the robber.

                                          12
SE2d 127) (2006) (three months); Qadir v. State, 235 Ga. App. 884, 885 (2) (510

SE2d 362) (1998) (two months); Cummings v. State, 233 Ga. App. 806, 808-809 (4)

(505 SE2d 73) (1998) (two years); Crumbley v. State, 189 Ga. App. 384, 385 (1) (375

SE2d 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 SE2d 133) (2000); Banks v. State, 216 Ga. App. 326 (454

SE2d 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). 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).

                                          13
      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.”


      6
          A person commits the offense of aggravated assault when he or she assaults:

       (1) With intent to murder, to rape, or to rob;


          (2) With a deadly weapon or with any object, device, or instrument
      which, when used offensively against a person, is likely to or actually
      does result in serious bodily injury; or


          (3) A person or persons without legal justification by discharging a
      firearm from within a motor vehicle toward a person or persons.

                                          14
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.




                                    15
             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


      7
        The trial court instructed the jury to place its verdict for the armed robbery
charge on the reverse side of the indictment, and its verdict for the other three charges
on blank paper that would be provided.

                                           16
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 SE2d 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 SE2d 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

                                          17
assault].” (Citations, punctuation and footnote omitted.) Clemens v. State, 318 Ga.

App. 16, 20 (2) (733 SE2d 67) (2012). See also Holman, supra, 329 Ga. App. at 400

(2) (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 SE2d 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.


      [Witness:] (Pointing.)

                                          18
      [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

SE2d 799) (1987) (finding trial court’s questions to witness clarifying her




                                          19
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 SE2d 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. 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 SE2d 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


      8
       See Allen v. United States, 164 U. S. 492, 501 (9) (17 SCt 154, 41 LE 528)
(1896).

                                          20
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.




                                           21
          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.




                                      22
(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. 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

SE2d 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


                                          23
Lowery v. State, 282 Ga. 68 (646 SE2d 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). 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). 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 SE2d 195) (2005).

                                          24
      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 SCt 2052, 80 LE2d 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 SE2d 774) (2012).

      As a general rule, reasonable trial tactics and strategies do not amount
      to ineffective assistance of counsel. The decisions on which witnesses

                                          25
      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 SE2d 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 SE2d 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 SE2d 509)

(2014).




                                           26
      (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 SE2d 851) (2011),

      [t]he holding in Johnson v. State, 272 Ga. 254 (526 SE2d 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). 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 SE2d

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 SE2d 439)

(2007), “trial counsel testified she chose not to pursue evidence of an expert in

                                          27
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). 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 SE2d 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

SE2d 766) (2005) (instructing trial courts to refrain from charging on a witness’s

level of certainty), had not yet been decided. Id. at 443. “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 SE2d

                                          28
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 SE2d

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


      9
         King cites to the following footnote in Brodes, supra, to support his
contention that counsel should not have requested the level of certainty portion of the
pattern charge: “Our [2000] observation [of a split of opinion among state appellate
courts] caused the editors of the third edition of the criminal volume of the Suggested
Pattern Jury Instructions to insert a cautionary note concerning the use of the ‘level
of certainty’ portion of the charge. Suggested Pattern Jury Instructions, Vol. II:
Criminal Cases, Par. 1.35.10 (c), pp. 27-28 (3rd ed. 2003).” 279 Ga. at 436-437 n. 3.
However, we cannot determine from the Supreme Court’s opinion exactly when in
2003 the third edition was issued, and King submitted no evidence that this edition
was issued before the date of his trial in 2003. Additionally, the 2000 decision
referenced by the Supreme Court in Brodes, supra, pretermitted whether the level of

                                          29
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 SE2d 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 SE2d 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 SE2d 196) (2005) (presuming trial counsel made strategic decision

not to file a motion to suppress identification based upon suggestive photo array).



certainty charge should be continued and “note[d] that while some courts have
discontinued the use of such a charge, . . . other courts continue to include the ‘level
of certainty’ language in their charge on eyewitness identification.” Jones v. State,
273 Ga. 213, 219 (3) (b) n. 17 (539 SE2d 143) (2000).

                                          30
      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 SE2d 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 SE2d 170) (2012). See also Israel, supra, 521 F2d 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”).

                                          31
      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 SE2d

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 SE2d 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 SE2d 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 SE2d 412) (2013)

                                           32
(presuming counsel’s choice not to object was strategic); Heard v. State, 296 Ga. 681,

685 (3) (c) (769 SE2d 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 SE2d

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).

      Judgment affirmed. 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.




                                         33
 A15A1878. KING v. THE STATE.

      MILLER, Presiding Judge, concurring specially.

      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 SCt 375, 34 LEd2d 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 SE2d 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 SE2d 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.)

                                          2
Williams v. State, 275 Ga. 622, 623 (2) (571 SE2d 385) (2002); see also Clark v.

State, 271 Ga. 6, 12 (7) (b) (515 SE2d 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 SE2d 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

      10
         It is all the more difficult to distinguish that line between permissible and
impermissible arrays because, although the case law instructs that “slight differences”
do not cross that line, see Redding, supra, 296 Ga. at 474 (4), we are not privy to the
images in those prior cases and thus cannot compare apples to apples. As the saying
goes, “beauty is in the eye of the beholder.” Margaret Wolfe Hungerford, Molly Bawn
(1878). And we are not able to behold those images. Nevertheless, in my eye, the
images in King’s array show more than “slight differences” and thus cross the line.

                                          3
      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 SE2d 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 SCt 1999, 26 LEd2d 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) (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

                                          4
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 SCt

1999, 26 LEd2d 387) (1970). Accordingly, I would affirm King’s convictions.




                                          5
A15A1878. KING v. THE STATE.

       PHIPPS, Presiding Judge.

       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




       1
       Jones v. State, 303 Ga. App. 366, 367 (1) (693 SE2d 549) (2010) (punctuation
and footnote omitted).
       2
           Id. (punctuation and footnote omitted).
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

      3
          See Lovelady v. State, 307 Ga. App. 788, 790 (706 SE2d 148) (2011).
      4
       Reed v. State, 291 Ga. 10, 13 (727 SE2d 112) (2012) (citation and punctuation
omitted).
      5
       Frazier v. State, 305 Ga. App. 274, 283 (699 SE2d 747) (2010) (Barnes, P. J.,
concurring in part and dissenting in part).
      6
       Green v. State, 291 Ga. 287, 293 (6) (728 SE2d 668) (2012) (728 SE2d 668)
(2012) (citations and punctuation omitted).

                                           2
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

      7
        The majority writes that “a witness viewing a lineup will likely be more
focused on comparing the physical features of the persons depicted with his visual
memory of the perpetrator than identifying different characteristics of the
photographs themselves.” Supra at 10 (1) (a). But the majority provides no citation
to authority or evidence to support this speculation. Even assuming that the customer
could ignore the quality of the photographs in favor of their content, his ability to
make a meaningful comparison of the men’s physical features was severely hampered
by the poor quality of all the images save King’s.
      8
        For example, one of the men may or may not be bald, and the facial features
of two others are so monochromatically gray that they are nearly imperceptible.
      9
         Indeed, the officer testified that he obtained King’s picture from another
jurisdiction, whereas the other five came “from [his] files.”

                                            3
      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



      10
          For example, in Green, the defendant objected that his picture in two photo
arrays used to identify him was “more of a closeup shot and ha[d] more detail than
the other photos.” Id. The Supreme Court rejected this claim after viewing the arrays
and concluding that the differences to which the defendant referred were “indeed
slight” and that “his photograph [wa]s not the only one in each array with as much
clarity.” Id.; see also Pinkins v. State, 300 Ga. App. 17, 19 (684 SE2d 275) (2009)
(qualitative differences between defendant’s photo and the others did not invalidate
lineup because they were “slight” and because witnesses were told before viewing
lineup not “to be distracted by any background scenery, since photographs are
sometimes taken at various locations or obtained from a variety of sources”); Rutland
v. State, 296 Ga. App. 471, 474 (2) (675 SE2d 506) (2009) (detective who had
assembled array effectively minimized slight differences in picture quality by using
a computerized process to enlarge defendant’s photo and produce the lineup in black
and white “to provide more uniformity in the color, quality, and background of the
photos”); Brewer v. State, 219 Ga. App. 16, 20 (463 SE2d 906) (1995) (our review
of the array showed that defendant’s contention that “the picture tone of his
photograph in the six-person array was demonstrably lighter than the other five”—the
only difference mentioned by defendant—was “without merit”).

                                           4
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


      11
      Joe Raposo and Jon Stone, One of These Things, on Sesame Street Book &
Record—Original Cast (Columbia Records, 1970).
      12
           See Heng v. State, 251 Ga. App. 274, 276 (2) (554 SE2d 243) (2001).

                                           5
       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

       13
            Id. (citation and punctuation omitted).
       14
          We note that in light of potential problems with eyewitness identification,
juries may no longer consider a “witness’s certainty in his/her identification as a
factor to be used in deciding the reliability of that identification.” Brodes v. State, 279
Ga. 435, 442 (614 SE2d 766) (2005) (footnote omitted).
       15
         Compare, e.g., Rutland v. State, 296 Ga. App. 471, 475 (2) (675 SE2d 506)
(2009) (no substantial likelihood of irreparable misidentification where victim had
“unrestricted view” of perpetrator, stood “face-to-face” with him for three minutes,

                                             6
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




paid particular attention to his facial features, and recalled that his “nostrils flared in
a very distinctive manner”).
       16
        The majority discounts the customer’s “lack of eloquence in describing the
robber’s facial features,” supra at 12 (1) (b), but there is no evidence in the record that
the customer gave any description of the man’s facial features, ineloquent or
otherwise.
       17
         Compare Price v. State, 289 Ga. App. 763, 766 (2) (658 SE2d 382) (2008)
(no substantial likelihood of irreparable misidentification where victim was able to
describe assailant to sketch artist, who generated a composite sketch that was “very
similar” to defendant’s lineup photo).
       18
         Compare, e.g., McIvory v. State, 268 Ga. App. 164, 168 (2) (b) (601 SE2d
481) (2004) (no substantial likelihood of misidentification where victim viewed photo
array three hours after robbery).

                                            7
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,

      19
          See Sims v. State, 244 Ga. App. 823, 826 (1) (537 SE2d 133) (2000)
(physical precedent only) (reversing conviction based on impermissibly suggestive
pretrial identification where victim did not have a good opportunity to view burglar’s
face and described him only in general terms that “were not particularly distinctive”);
see also Banks v. State, 216 Ga. App. 326, 329 (3) (454 SE2d 784) (1995).
      20
        Thompson v. State, 320 Ga. App. 46, 47 (2) (743 SE2d 24) (2013) (citation
and punctuation omitted); see also Sims, supra; Tiller v. State, 222 Ga. App. 840, 841
(476 SE2d 591) (1996).
      21
          See, e.g., Thompson v. State, 320 Ga. App. 46, 47 (2) (743 SE2d 24) (2013)
(in-court identification was not tainted by pretrial photo array because witness
testified that her in-court identification of defendant “was based on her familiarity
with him as a neighbor and friend of her daughter over a period of years”); Tiller v.
State, 222 Ga. App. 840, 841 (476 SE2d 591) (1996) (in-court identification had an
independent origin where witness “testified that he based his identification on seeing
appellant outside the apartment’s laundry room, holding the television, and not on the
picture of appellant he viewed after the burglary”).

                                          8
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.



      22
         One of those identifications was a voice identification that occurred after the
customer was shown the photo array. But, as the majority notes, supra at 32-33 6 (c),
the voice identification was the auditory equivalent of a one-on-one showup, as the
customer was not presented with any other voices for a basis of comparison. See
Butler v. State, 276 Ga. App. 161, 164 (1) (623 SE2d 132) (2005) (“a one-on-one
showup is inherently suggestive”) (punctuation and footnote omitted). And because
the customer had already identified King through the photo array, he must have
realized that it was likely King’s voice he was hearing.

                                           9
