313 Ga. 178 FINAL COPY
S21A0981. ANDERSON v. THE STATE.
BETHEL, Justice.
A DeKalb County jury found Jefferies Anderson guilty of
malice murder and other offenses in connection with the shooting
death of Jonathan Newton. Following the denial of his motion for
new trial, Anderson appeals, arguing that the trial court erred by
admitting intrinsic evidence and that his trial counsel provided
constitutionally ineffective assistance. We affirm.1
1 The crimes occurred on October 31, 2016. On February 9, 2017, Anderson was indicted by a DeKalb County grand jury for malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), felony murder predicated on first-degree burglary (Count 3), felony murder predicated on possession of a firearm by a convicted felon (Count 4), aggravated assault (Count 5), first-degree burglary (Count 6), possession of a firearm by a convicted felon (Count 7), and possession of a firearm during the commission of a felony (Count 8). At a jury trial held from January 30 to February 5, 2019, Anderson was found guilty of all counts. On February 5, 2019, the trial court sentenced Anderson to life in prison without the possibility of parole on Count 1, 20 years in prison on Count 6, five years in prison on Count 7, and five years in prison on Count 8, with all sentences to run consecutively. Counts 2, 3, and 4 were vacated by operation of law, and Count 5 merged with Count 1 for sentencing. Anderson filed a motion for new trial on March 1, 2019, which he amended through new counsel on October 19, 2020. Following a hearing on December 11, 2020, the trial court denied the motion for new trial, as amended, 1. The evidence presented at trial showed the following. A video
surveillance recording at an apartment complex located on
Glenwood Avenue in Fulton County reflected that, just before noon
on October 31, 2016, a man wearing a black hat, dark pants, and a
gray and white striped shirt and carrying a backpack walked
through a parking deck and broke into one of the apartment
buildings. Around the same time, someone reported to the police
that an unknown man attempted to enter an apartment in that
complex. A woman inside the apartment screamed, and the man ran
away.
Approximately an hour later and less than a mile away, at a
different apartment complex on Metropolitan Avenue in DeKalb
County, a man entered one of the apartment buildings, went to the
fourth floor, and began knocking on doors of apartments on that
floor. Two tenants who lived on the fourth floor saw a young African-
on December 18, 2020. Anderson filed a motion for out-of-time appeal, which the trial court granted on February 16, 2021. Anderson filed a notice of appeal on February 17, 2021. His appeal was docketed to this Court’s August 2021 term and submitted for a decision on the briefs. 2 American male in the hallway around that time. One of the tenants
said the man was wearing a hat.
Just after 1:00 p.m., a resident of the fourth floor heard
someone kick in the door of another apartment down the hall. Soon
after, Newton, who lived in an apartment on the fourth floor, came
back from work for his lunch break with Clay Agee, his neighbor and
co-worker. Newton saw that his apartment door had been kicked in,
and he quickly went inside and found a man robbing it. Agee, who
was standing just outside the door, saw that the assailant was
wearing a surgical mask, a backward hat, a gray striped shirt, and
black pants. Agee testified that although the top of the man’s head
and the lower part of his face were covered, he got a “good” and
“clear” look at his eyes.
The man looked up, appeared to be surprised, and then reached
for a handgun that was tucked into the waistband of his pants.
Newton rushed into the apartment toward the man, struggled with
him, and tried to wrap his arms around him to keep the gun down.
Agee “froze,” and Newton told him to “run, get out of here.” As Agee
3 turned and ran away, he heard gunshots.
Agee reached the leasing office and learned that a neighbor had
already called the police. The police arrived at the apartment
complex less than a minute later. When the police reached Newton’s
apartment, they saw signs of a struggle and found Newton lying
dead in the doorway of his apartment. There were also signs of
forced entry into the apartment. A gun Newton kept in the
apartment, a game console, and a laptop were later reported missing
from the apartment.
Inside the apartment, the police located a black knit hat and
four spent .38-caliber cartridges. A firearms examiner determined
that all of the cartridges had been fired from the same gun and that
they were consistent with having been fired from a Colt or
Springfield .38-caliber pistol.
The medical examiner testified that Newton suffered multiple
gunshot wounds from close range. Newton died from a gunshot
wound to his chest, and the wounds were consistent with having
been inflicted after a struggle between the shooter and the victim.
4 Agee was later asked by the police to review video recordings
from a security camera on the door of one of the apartments on the
fourth floor near Newton’s apartment. The video recordings, which
were played for the jury, were taken between 12:41 and 1:11 p.m.
Two of the recordings showed an African-American male wearing a
black hat, a gray and white striped shirt and dark pants and
carrying a backpack as he walked back and forth on the fourth-floor
hallway. According to a detective who reviewed the recordings, the
hat found in Newton’s apartment was “similar” to the one seen in
the videos. The recording taken at 1:11 p.m. appears to show the
man fleeing the fourth floor and running down a nearby stairwell
while no longer wearing a hat. After reviewing the videos from the
neighbor’s door camera, Agee told the police that the man shown in
the videos was the man who shot Newton. One detective testified
that even though none of the videos clearly showed the man’s face,
the man shown in the videos taken from the door camera had a
“similar description with a similar hat” as the man shown in the
surveillance video taken from the Glenwood Avenue apartment
5 complex earlier in the day.
According to one of the detectives, Anderson eventually became
a “person of interest.” In his investigation, the detective compared a
photograph of Anderson with the two videos taken from the
Glenwood Avenue and Metropolitan Avenue apartment complexes.
The detective testified that Anderson was “similar” to the man
shown in the videos in “build, height, [and] physical characteristics.”
The detective also testified that although the videos were not taken
from vantage points that allowed the police to see the suspect’s face,
the man shown in the videos had characteristics that were “very
similar” to Anderson, which led the police to believe it was him
shown in the videos.
On November 13, Agee was again interviewed by the police and
was asked to view a photographic lineup containing pictures of six
men.2 Agee selected a picture of Anderson in the lineup and told the
2 The record shows that, at the time of trial, Anderson had a visible scar
on his face. The detective who prepared the photo lineup testified that he believed that the photo of Anderson used in the lineup was taken before he received the scar. On redirect examination, the detective noted that, in his
6 detective that he was about “70 percent” sure that was who he had
seen in Newton’s apartment. Agee testified that it was the man’s
eyes that led him to select his photo in the lineup he was shown.
The police collected the black hat that was found in Newton’s
apartment and sent it to the Georgia Bureau of Investigation (“GBI”)
for DNA testing. Following his arrest, the police obtained a buccal
swab from Anderson that was also sent to the GBI. The testing
showed that the primary DNA recovered from the hat belonged to
Anderson.
At trial, Anderson called only one witness, his fiancée, Tilicia
Boyd. Boyd testified that she and Anderson were together at her
grandmother’s house throughout the day on October 31.3 Anderson
introduced a photo Boyd took of him and posted to Instagram that
interviews, Agee stated that, at the time of the shooting, the suspect was wearing a surgical mask. The detective testified that the mask would have probably covered “a good portion” of the scar. 3 On cross-examination, Boyd admitted (but later denied) that she told
an investigator that she had no actual memory of October 31 but that she and Anderson would have normally been together at her grandmother’s house throughout the day because she cared for her grandmother and Anderson was not working at the time. The State called the investigator as a rebuttal witness, and he testified that Boyd told him that she had no specific recollection of October 31 and that she was basing her recollection on their typical routine. 7 day. It was not clear at what time the photo was taken. Anderson
and the State stipulated that, prior to the murder, Anderson was
convicted of a felony.
2. Anderson first argues that the trial court erred by admitting
evidence from the burglary at the Glenwood Avenue apartments as
intrinsic evidence. We see no abuse of the discretion in the trial
court’s admission of the evidence on that basis.
Before trial, the State moved to admit evidence of the
Glenwood Avenue burglary. The State asserted in its motion and in
a pre-trial hearing that the evidence was intrinsic to the charged
offenses or, in the alternative, that the evidence should be admitted
under OCGA § 24-4-404 (b) (“Rule 404 (b)”) for the limited purpose
of showing intent, identity, plan, and scheme on the part of
Anderson.4 The trial court ruled that the evidence was intrinsic. The
4 Rule 404 (b) provides, in pertinent part:
Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . . 8 trial court adhered to its ruling when it denied Anderson’s motion
for new trial, determining that the evidence of the Glenwood Avenue
burglary was part of the same series of transactions as the charged
offenses, that it was necessary to complete the story of the crime and
inextricably intertwined with the evidence regarding the charged
offense, and that, along with the testimony of other witnesses, the
evidence helped to explain that the intruder was unlikely to be a
resident of the apartment complex because he had just attempted
another break-in an hour earlier. The trial court also determined
that the evidence satisfied the balancing test under OCGA § 24-4-
403 (“Rule 403”),5 noting that any prejudice from the introduction of
the Glenwood Avenue video was minimal given that the intruder’s
face was not visible and because Anderson denied that he was the
person shown.
Whereas Rule 404 (b) generally controls the admission of other-
5 Rule 403 provides that “[r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
9 acts evidence, also referred to as “extrinsic evidence” under our
current Evidence Code,
evidence of criminal activity other than the charged offense is not extrinsic under Rule 404 (b), and thus falls outside the scope of the Rule, when it is (1) an uncharged offense which arose out of the same transaction or series of transactions as the charged offense, (2) necessary to complete the story of the crime, or (3) inextricably intertwined with the evidence regarding the charged offense. Evidence pertaining to the chain of events explaining the context, motive, and set-up of the crime is properly admitted if it is linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.
(Citations and punctuation omitted.) Brown v. State, 307 Ga. 24, 29
(2) (834 SE2d 40) (2019). “There is no bright-line rule regarding how
close in time evidence must be to the charged offenses, or requiring
evidence to pertain directly to the victims of the charged offenses,
for that evidence to be admitted properly as intrinsic evidence.”
(Citation and punctuation omitted.) Hughes v. State, 312 Ga. 149,
152 (1) (861 SE2d 94) (2021).
“The limitations and prohibition on [extrinsic] evidence set out
in OCGA § 24-4-404 (b) do not apply to intrinsic evidence.”
10 (Citations, punctuation and footnote omitted.) Williams v. State, 302
Ga. 474, 485 (IV) (d) (807 SE2d 350) (2017). “We review the trial
court’s ruling for abuse of discretion.” Brown, 307 Ga. at 29 (2).
Here, the trial court did not abuse its discretion in determining
that the evidence of the Glenwood Avenue burglary roughly an hour
before Newton’s shooting “was a link in the chain of events leading
up to the murder and completed the story of the crimes for the jury.”
Brown, 307 Ga. at 29 (2). As the trial court determined, that
evidence showed an event that occurred close in both time and space
to the charged offenses and helped to explain to the jury that the
events at the Metropolitan Avenue apartments were part of a series
of attempted burglaries by Anderson that day.
Intrinsic evidence must also meet the balancing test of Rule
403. See Mosley v. State, 307 Ga. 711, 714 (2) (838 SE2d 289) (2020).
Here, although the evidence implicated Anderson in another
criminal act, the probative value of the evidence concerning the
burglary at the Metropolitan Avenue apartments was not
substantially outweighed by the danger of unfair prejudice. See
11 Brown, 307 Ga. at 30 (2); see also Olds v. State, 299 Ga. 65, 70 (2)
(786 SE2d 633) (2016) (noting the well-established principles that
“[t]he major function of Rule 403 is to exclude matter of scant or
cumulative probative force, dragged in by the heels for the sake of
its prejudicial effect” and that “the exclusion of evidence under [that
rule] is an extraordinary remedy which should be used only
sparingly” (citations and punctuation omitted)). This enumeration
of error fails.
3. Anderson also argues that his trial counsel provided
constitutionally ineffective assistance in a number of ways. To
prevail on these claims, Anderson
has the burden of proving both that the performance of his lawyer was professionally deficient and that he was prejudiced as a result. To prove deficient performance, [Anderson] must show that his trial counsel acted or failed to act in an objectively unreasonable way, considering all of the circumstances and in light of prevailing professional norms. To prove resulting prejudice, [Anderson] must show a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different. In examining an ineffectiveness claim, a court need not address both components of the inquiry if the defendant makes an insufficient showing on one.
12 (Punctuation omitted.) Stuckey v. State, 301 Ga. 767, 771 (2) (804
SE2d 76) (2017) (citing Strickland v. Washington, 466 U. S. 668, 687
(104 SCt 2052, 80 LE2d 674) (1984)). “A strong presumption exists
that counsel’s conduct falls within the broad range of professional
conduct.” (Citation and punctuation omitted.) Ford v. State, 298 Ga.
560, 566 (8) (783 SE2d 906) (2016).
(a) Anderson first argues that his trial counsel performed
deficiently by failing to request a limiting instruction when evidence
of the Glenwood Avenue burglary was admitted at trial. He also
claims that counsel performed deficiently by later failing to object
when a limiting instruction regarding the evidence, which counsel
requested in the charge conference, was omitted in the trial court’s
final charge to the jury. However, in order to prevail on this claim,
Anderson must show that the request would have been granted or
that the objection to the final charge would have been sustained had
they been made. He cannot do so here because, as we determined
above, the trial court did not abuse its discretion by admitting the
13 evidence in question as intrinsic evidence. Because a limiting
instruction generally is not warranted for intrinsic evidence,
Anderson cannot show that his trial counsel performed deficiently
by failing to request such an instruction when the evidence was
presented at trial or by failing to object to the final charge to the jury
as given by the trial court. See Harris v. State, 310 Ga. 372, 385 (4)
(a) (850 SE2d 77) (2020).
(b) Anderson also argues that his trial counsel performed
deficiently by failing to object when two detectives testified about
what they observed in the surveillance videos from the Glenwood
Avenue and Metropolitan Avenue apartments that the State
introduced. Anderson argues that an objection would have
prevented the detectives from identifying Anderson in the videos.
We disagree that counsel performed deficiently.
At trial, Detective Scott Demeester testified about the video
taken from the camera on Newton’s neighbor’s door:
PROSECUTOR: Did you become aware of some video while you were at the scene in another apartment? WITNESS: Yes, I was.
14 ... PROSECUTOR: And was there anything significant after processing the scene and watching the video that occurred to you? WITNESS: Yes. PROSECUTOR: What was that? WITNESS: The video that I saw, there was a black male, appeared to be walking down the hallway of the apartment complex. I believe he was captured in one of the neighboring [apartment’s] ring camera. I know the subject appeared to have some sort of black hat on the top of his head. PROSECUTOR: I’m going to show you what has already been admitted into evidence as State’s Exhibit 9.
(Whereupon State’s Exhibit No. 9 was played in open court.)
PROSECUTOR: Is this one of the clips that you observed? WITNESS: Yes, ma’am.
(Whereupon State’s Exhibit No. 9 continued to be played in open court.)
PROSECUTOR: Was this a clip you observed? WITNESS: Yes, ma’am.
(Whereupon State’s Exhibit No. 9 continued to be played in open court.)
PROSECUTOR: How about this clip? WITNESS: Yes, ma’am. I don’t recall if I watched each one of these. The one I do recall, the subject had the hat on his head, this one, and the one prior.
(Whereupon State’s Exhibit No. 9 continued to be played in open court.)
15 PROSECUTOR: And did you observe any video with the hat removed? WITNESS: I’m not sure if it was while I was there on the scene or if it was after the fact, but I do recall seeing video of the subject fleeing the area. PROSECUTOR: And this one is marked 13:11. What time is that? WITNESS: That’s 1:11 p.m. military time.
(Whereupon State’s Exhibit No. 9 continued to be played in open court.) PROSECUTOR: Is that the video you observed of the suspect fleeing? WITNESS: Yes, ma’am. PROSECUTOR: Did he appear to have a hat on his head at that point? WITNESS: No, ma’am, he did not.
Later, Detective Kyle Kleinhenz testified about the video he
observed:
PROSECUTOR: Was there anything of note to you in your investigation after watching those clips? WITNESS: Several clips we pulled from that video. Of note, there was a black male with a black hat, dark pants, and a backpack in the hallway around the time of the shooting. And the hat was similar to what we found next to the victim, which was why it was of interest and collected, and it was also the same area that Mr. Agee told us the struggle happened. ... PROSECUTOR: Was there anything about any of those video clips that suggested to you that the suspect may have left his hat in the apartment?
16 WITNESS: Yes. Because when he ran past the door in one of the clips, there is no hat anymore, the hat is gone. PROSECUTOR: Did you ever get alerted about another break-in nearby this location? WITNESS: Yeah. About .7 miles from this location at 1205 Metropolitan Avenue is another location, 880 Glenwood Avenue. And that’s only .7 miles away from where this homicide took place. PROSECUTOR: Did you respond to that location as well? WITNESS: Yes, I did. PROSECUTOR: And did you locate any evidence of value while you were there? WITNESS: Yes. We saw a male in [sic] a similar description with a similar hat. DEFENSE COUNSEL: Your honor, I’m going to object to describing videos that the jury has already seen and putting his own feeling on. That video has been admitted to the jury. The jury can decide what they see on the video. PROSECUTOR: Your honor, he is explaining his investigation to the jury and why he did the things that he did. He can explain that he found this video relevant because he believed the person appeared to be the same person in the other video. COURT: I deny the objection. PROSECUTOR: And why was it of interest to you, Detective Kleinhenz? WITNESS: Because the male had — it wasn’t close enough to see his face in either video. The characteristics, the hat, the physical characteristics, were similar to what we saw in the ring, in the video from what we saw in the ring door video.
Anderson argues that, had his trial counsel objected to
Detective Demeester’s testimony and objected earlier to Detective
17 Kleinhenz’s testimony that neither would have been permitted to
“narrate” the video and describe what they had seen.6 However,
neither detective identified Anderson as the person in the videos as
they were being played to the jury, only referred to the person
depicted in the videos as the “black male,” the “subject,” or the
“suspect,” and provided comparisons between the two videos.
Moreover, to the extent the detectives’ testimony included opinions
or inferences about who or what could be seen in the videos,
Anderson has failed to show that, had a timely objection been made,
such statements would have been excluded under OCGA § 24-7-701
(a),7 as the trial court would not have abused its discretion by
6 Anderson cites two Court of Appeals decisions for this proposition: Mitchell v. State, 283 Ga. App. 456, 458-459 (641 SE2d 674) (2007), and Carter v. State, 266 Ga. App. 691, 692-693 (2) (598 SE2d 76) (2004). Both of those cases relied upon former OCGA § 24-9-65 for the proposition that it is improper to allow a witness to testify as to the identity of a person in a video when such opinion evidence goes to a factual issue the jury is called upon to determine. However, former OCGA § 24-9-65 was repealed in 2013 as part of the enactment of Georgia’s current Evidence Code and replaced by OCGA § 24-7- 701 (a). See Jordan v. State, 293 Ga. 619, 621 (2) (a) n.2 (748 SE2d 876) (2013). Former OCGA § 24-9-65 therefore did not apply to Anderson’s trial, which took place in 2019. 7 OCGA § 24-7-701 (a) provides:
If the witness is not testifying as an expert, the witness’s
18 determining that the detectives’ statements were “rationally based
on inferences [they] formed by reviewing the surveillance video and
other evidence and by interviewing witnesses” and that their
“testimony about those inferences was helpful to determine” who
could be seen in the videos and thus who committed the crimes.
Thornton v. State, 307 Ga. 121, 128 (3) (c) (834 SE2d 814) (2019).
Therefore, neither an objection to Detective Demeester’s testimony
nor an earlier objection to Detective Kleinhenz’s testimony on this
basis would have had any merit, and the “failure to make a meritless
objection cannot support a claim of ineffective assistance.” (Citation
and punctuation omitted.) Harris v. State, 304 Ga. 652, 658 (2) (c)
(821 SE2d 346) (2018).
(c) Finally, Anderson argues that his trial counsel performed
deficiently by failing to move to suppress the introduction of Agee’s
testimony in the form of opinions or inferences shall be limited to those opinions or inferences which are: (1) Rationally based on the perception of the witness; (2) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue; and (3) Not based on scientific, technical, or other specialized knowledge within the scope of Code Section 24- 7-702. 19 identification of Anderson in the photo lineup. We disagree.
When trial counsel’s failure to file a motion to suppress is the
basis for a claim of ineffective assistance, the defendant must make
a strong showing that the damaging evidence would have been
suppressed had counsel made the motion. See Mosley, 307 Ga. at
720-721 (4) (a).
Here, trial counsel would have been required to demonstrate that the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification. An impermissibly suggestive identification procedure is one which leads the witness to the virtually inevitable identification of the defendant as the perpetrator, and is equivalent to the authorities telling the witness, “This is our suspect.” Where the identification procedure is not unduly suggestive, it is not necessary to consider whether there was a substantial likelihood of irreparable misidentification.
(Citations and punctuation omitted.) Id. at 721 (4) (a).
Here, Anderson argues that the identification procedure was
tainted because Agee was shown videos of the suspected perpetrator
before Agee was asked to identify him in a photographic lineup.
However, Anderson has not shown that the process by which Agee
20 identified him in the photographic lineup was impermissibly
suggestive. He therefore cannot show that a motion to suppress the
identification would have been granted had his trial counsel filed
one.
Agee’s identification of Anderson occurred in two stages. First,
shortly after the crimes, Agee was asked to review the surveillance
videos from Newton’s neighbor’s apartment door camera and from
the Glenwood Avenue apartments. Upon reviewing those videos,
Agee told the police that the man shown in the videos was the person
who burglarized Newton’s apartment and shot him.
Two weeks later, Agee was again interviewed by the police and
was asked to view a photographic lineup containing pictures of six
men. The lineup was constructed with driver’s license or booking
photos of men who were all the same race and age (plus or minus
two years) and who had similar physical characteristics to those of
the suspect. The photographs were then placed in a folder. Because
the detective who constructed the lineup knew which of the
photographs was of Anderson, he asked a second detective who did
21 not know which photograph showed the suspect to administer the
lineup with Agee. Agee was then given an admonition regarding the
lineup, which he and the detective signed.8 Agee selected the picture
of Anderson in the lineup and told the detective that he was about
“70 percent” sure that was who he had seen in Newton’s apartment.
Agee testified at trial that it was the man’s eyes that led him to
select his photo in the lineup he was shown.9
8 That admonition stated the following:
I am about to show you a group of photographs to see if you can make an identification of the person who committed the crime now being investigated. This group of photographs may or may not include a photograph of the person who committed the crime. You should only make identification if you can do so. You may not talk to anyone while viewing the photographs. Since hair styles, beards[,] and mustaches are easily changed, the photographs you are viewing may or may not depict the hairstyle or the facial hair similar to that of the person who committed the crime. Also note that photographs do not always depict the true complexion of a person; it may be lighter or darker than shown. Pay no attention to markings or numbers appearing in any particular photograph. Please do not discuss with witnesses whether or not you have selected a photograph during this showing. 9 We note that this procedure appears to comport with guidelines set
forth in OCGA § 17-20-2, which requires law enforcement agencies to establish a policy for the conduct of live lineups, photo lineups, and “showups.” With respect to photo lineups, such policy must include having an individual who does not know the identity of the suspect conduct the photo lineup or, where the person conducting the lineup knows the suspect, utilizing a procedure in which “photographs are placed in folders, randomly shuffled, and then
22 Here, although only one person was shown in the security
videos Agee viewed, the detectives’ trial testimony established, and
the trial court found, that the videos did not show a clear picture of
the person’s face. Importantly, the detective only asked Agee at the
time if the person shown in the video was the person he saw in
Newton’s apartment. The detective never used Anderson’s name or
gave Agee any more information. Moreover, when Agee saw
Anderson in Newton’s apartment, Anderson was wearing a hat and
presented to the witness so that the individual conducting such procedure cannot physically see which photograph is being viewed by the witness until the procedure is complete[.]” OCGA § 17-20-2 (b) (2) (B). The person administering the lineup is also to instruct the witness “that the perpetrator of the alleged crime may or may not be present in the . . . photo lineup[.]” OCGA § 17-20-2 (b) (3). The photo lineup should be composed such that the fillers “generally resemble the witness’s description of the perpetrator of the alleged crime[,]” OCGA § 17-20-2 (b) (4), and should have a minimum of five fillers. OCGA § 17-20-2 (b) (5). The individual conducting the photo lineup is also to seek and document, at the time that an identification of [a] photograph is made, and in the witness’s own words without necessarily referencing a numeric or percentage standard, a clear statement from the witness as to the witness’s confidence level that the . . . photograph identified is the . . . photograph of the individual who committed the alleged crime. OCGA § 17-20-2 (b) (6). We reiterate, however, that “failure to follow the procedures contained within the statute does not require automatic exclusion[,]” but is instead a factor the court should consider when an identification is challenged. Kirkland v. State, 310 Ga. 738, 741-742 (2) (a) (854 SE2d 508) (2021); see also OCGA § 17-20-3.
23 a surgical mask. It was only when Agee identified Anderson in the
photographic lineup two weeks later that he was actually presented
with a picture of Anderson’s face. And even then, Agee testified that
it was Anderson’s eyes, which he had seen, that led him to select
Anderson in the lineup.
Based on the foregoing, faced with a motion to suppress, the
trial court would have been authorized to conclude that the
photographic lineup administered to Agee was not impermissibly
suggestive.10 See Kirkland v. State, 310 Ga. 738, 742-743 (2) (c) (854
SE2d 508) (2021) (holding that photo lineup was not impermissibly
suggestive where, despite having possibly seen other images of
suspect between the date of the crime and the photo lineup, the
10 Anderson also argues that Agee’s identification of Anderson in the
photo lineup would have been inadmissible because Agee did not know Anderson, only had a few seconds to see Anderson before the attack, saw him with his face partially covered, identified him with only 70 percent certainty, and only did so two weeks after the crimes were committed. However, absent a showing that the photo lineup was impermissibly suggestive, these factors do not affect the admissibility of the identification. See Blackmon v. State, 300 Ga. 35, 37-38 (3) (793 SE2d 69) (2016) (noting that factors affecting the witness’s ability to perceive the defendant relate to “the determination of whether there was a substantial likelihood of misidentification, an issue that arises only after a court determines the identification procedure was impermissibly suggestive” (emphasis in original)). 24 lineup was the only time other than the time of the crimes when the
witness saw the suspect’s face); Roseboro v. State, 308 Ga. 428, 434
(2) (841 SE2d 706) (2020) (lineup not impermissibly suggestive
where none of the circumstances of the lineup’s presentation led the
witness to a “virtually inevitable identification of [the suspect] as
the perpetrator” (citation and punctuation omitted)); see also
Thomas v. State, 310 Ga. 579, 585-586 (4) (853 SE2d 111) (2020) (no
abuse of discretion in denying motion to suppress where trial court
was authorized to conclude that the photographic lineup was not
impermissibly suggestive). Thus, Anderson has not made the
required showing that Agee’s out-of-court identification would have
been excluded had trial counsel moved to suppress it. See Roseboro,
308 Ga. at 435 (2) (a); Mosley, 307 Ga. at 721 (4) (a). He has therefore
failed to demonstrate that his counsel performed deficiently.11
11 Anderson also claims that reversal of his convictions is warranted because of the cumulative prejudice arising from the alleged trial court evidentiary error and deficient performance on the part of his trial counsel. See State v. Lane, 308 Ga. 10, 21-23 (4) (838 SE2d 808) (2020). However, we need not conduct cumulative-prejudice review under Lane in this case because we have not identified any trial court error or deficient performance on the part of counsel. 25 Judgment affirmed. All the Justices concur.
Decided February 15, 2022.
Murder. DeKalb Superior Court. Before Judge Parker-Smith.
Kempter Law Group, Christina M. Kempter, for appellant.
Sherry Boston, District Attorney, Deborah D. Wellborn,
Shannon E. Hodder, Tauri L. Thomes, Assistant District Attorneys;
Christopher M. Carr, Attorney General, Patricia B. Attaway Burton,
Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney
General, Kathleen L. McCanless, Assistant Attorney General, for
appellee.