King v. State, A15A1878.

• Decision Date: 30 March 2016
• Docket Number: No. A15A1878.,A15A1878.
• Citation: 336 Ga.App. 531,784 S.E.2d 875
• Parties: KING v. The STATE.
• Court: Georgia Court of Appeals

336 Ga.App. 531

784 S.E.2d 875

KING

v.The STATE.

No. A15A1878.

Court of Appeals of Georgia.

March 30, 2016.

William Allen Adams Jr., for Appellant.

Scott L. Ballard, Robert Wright Smith Jr., for Appellee.

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 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...