319 Ga. 234 FINAL COPY
S24A0129. ELEBY v. THE STATE.
BOGGS, Chief Justice.
Appellant Lekievius Eleby challenges his 2012 convictions for
felony murder and other crimes in connection with a home invasion
that resulted in the death of Danavan Bussey.1 Appellant contends
1 The crimes occurred on December 5, 2010. On March 16, 2011, a Lamar
County grand jury indicted Appellant, Shameik Spinks, and Bryce Smith on multiple counts: Count 1 — the felony murder of Bussey (armed robbery); Count 2 — the felony murder of Bussey (aggravated assault); Count 3 — armed robbery; Count 4 — burglary; Count 5 — the aggravated assault of Tyrone Holmes; Count 6 — the aggravated assault of Dewayne Johnson; Counts 7, 8, and 9 — the false imprisonment of Keitrae Battle, Holmes, and Johnson; Count 10 — conspiracy to commit armed robbery; and Count 12 — tampering with evidence. Appellant was separately indicted in Count 13 for possession of a firearm during the commission of a felony, and Spinks was also separately indicted for the same offense. On January 5, 2012, before trial, Bryce Smith pled guilty to robbery by intimidation and received a sentence of 15 years in prison, with ten to serve, and testified against Appellant at trial. On February 27, 2012, before trial, Spinks pled guilty to felony murder. He testified for the defense at trial. At a trial from February 27 to March 6, 2012, a jury found Appellant guilty on all counts of the indictment. On March 6, 2012, the trial court sentenced Appellant to life in prison for felony murder (armed robbery); to a concurrent sentence of life in prison for armed robbery; to fifteen consecutive years in prison for burglary; to fifteen concurrent years in prison for the aggravated assaults of Holmes and Johnson; to ten concurrent years in prison on the three false imprisonment counts; to ten concurrent years in prison for conspiracy to commit armed robbery; to ten concurrent years in prison on the tampering count; and to five consecutive that the evidence was legally insufficient to support his convictions
because the identifications of Appellant as one of the participants
were not reliable; that the indictment was multiplicitous; that the
trial court abused its discretion when it excluded evidence of past
recollection recorded; that the trial court erred in failing to grant
Appellant’s motion to suppress certain pretrial and trial
identifications; that the trial court committed plain error when it
allowed a GBI agent to give her opinion about the meaning of certain
text messages; that Appellant’s sentences for the aggravated
years in prison on the possession count. The trial court merged Count 2 for sentencing purposes. On March 19, 2012, Appellant filed a motion for new trial, which he amended through new counsel on March 16, 2020. On August 2, 2023, the trial court denied the motion for new trial, as amended. Appellant filed a timely notice of appeal, and the case was docketed in this Court for the term beginning in December 2023 and submitted for a decision on the briefs. We note that there was a significant delay between the filing of Appellant’s motion for new trial in 2012 and the filing of his amended motion in 2020. See Everett v. State, 318 Ga. 697, 698 n.2 (899 SE2d 699) (Ga. 2024) (stating that “[w]e are troubled by the inordinate and unexplained delay between the filing of Everett’s motion for new trial in 2010 and the filing of an amended motion 12 years later”). Here, Appellant was appointed new counsel in 2013, but no substantive filings by that counsel appear in the record. In August 2019, Appellant retained current appellate counsel, who filed the amended motion for new trial in 2020.
2 assaults of Tyrone Holmes and Dewayne Johnson should have
merged with each other or with the armed robbery offense; that the
conspiracy to commit armed robbery should have merged with the
conviction for armed robbery; that the possession offense should
have been merged with felony murder; that the prosecutor made
improper and prejudicial comments in his closing argument; and
that his trial counsel was constitutionally ineffective for failing to
make certain objections at trial. For the reasons that follow, we
vacate Appellant’s convictions and sentences for armed robbery and
conspiracy to commit armed robbery. Appellant’s remaining claims
are not preserved for appeal, are without merit, or do not require
reversal.
1. The evidence presented at trial showed that the victims —
Bussey, Holmes, and Johnson — were friends who attended Gordon
College together and lived in a house on Westchester Drive in
Barnesville in December 2010. Appellant also lived on Westchester
Drive. Johnson testified that he knew Appellant from “hanging
around Barnesville” and that, although he did not “hang out” with
3 Shameik Spinks,2 he had “seen him around.” Likewise, Holmes
testified that he had met Appellant at a club, had seen him around
Gordon College and also knew him from the Westchester Drive
neighborhood, but that, at the time of the crimes, he did not know
his last name.
Before the crimes, there had been animosity between the
victims and Appellant, with the victims thinking that Appellant had
twice broken into their home. In September 2010, Bussey, who was
with Johnson, confronted Appellant, who was with his cousin
Spinks, about the break-ins. According to Johnson, this led to a fight
between Bussey and Appellant, with Spinks also “trying to jump on
[Bussey].” Johnson added that Bussey and Appellant threw some
punches at each other and the fight “just ended.” In addition, on the
night of December 4, 2010, one night before the crimes at issue here,
when the victims were driving down Westchester Drive, they saw
Spinks walking down the street, pulled up next to him, and “had a
2 Appellant testified that Spinks’s “granddaddy and my father are first
cousins” and Johnson and Holmes referred to Spinks as Appellant’s cousin. 4 couple of words with him.” Holmes testified that he asked Spinks
about the fight with Bussey and that Spinks replied that he was “not
going to fight”; “I’m going to shoot.” The victims drove away.
In the early morning hours of December 5, 2010, the victims
were having a party at which a few other people, including Diamond
Rhodes and Keitrae Battle, were present. Rhodes and Bussey were
friends, having met at Gordon College, and Battle knew Bussey
through a mutual friend. Rhodes and Battle both testified that they
regularly socialized at Bussey’s house. At trial, Johnson testified
that he heard a knock on the door and opened it. He testified that
“all [he] remember[ed] [wa]s a gun in [his] face and they came in.”
When asked “how many people came in,” Johnson said, “[i]t was
three guys. One stood at the door. Lekievius and Shameik, they
came in.” Johnson added that he recognized Appellant and Spinks
even though they had their faces partially covered from the mouth
down. Appellant was armed with a handgun, and Spinks was armed
with a shotgun. When Appellant and Spinks came into the house,
“they asked for money and whatever was valuable.” According to
5 Johnson, Appellant went to the living room where Holmes was
sitting and had him bend over a table. Bussey then came from the
back of the house and tried to talk to the intruders. Bussey
approached Spinks and attempted to take the shotgun from him.
The two men struggled for it, then “a shot [went] off,” and Bussey
fell to the floor. After the shot was fired, Appellant and Spinks “were
still demanding . . . stuff.” Spinks took Johnson to Bussey’s room and
Appellant took Holmes to Johnson’s room. Johnson found Rhodes’s
handbag in Bussey’s room and gave it to Spinks. Shortly after that,
Appellant and Spinks left. At trial, although Johnson identified
Appellant as one of the intruders in the house that night, he
acknowledged that, when he was first interviewed by the police, he
did not say that Appellant was present during the crimes. According
to Johnson, at the time of the interview, he had “just witnessed the
murder of my best friend,” and “my mind was elsewhere.” Johnson
testified that the crimes lasted five to ten minutes.
Holmes’s testimony tracked that of Johnson, and he added that
Appellant came into the house with his hoodie pulled up to his
6 mouth but that Appellant let his hoodie slip down, allowing Holmes
to see his entire face. Holmes added that the other person had a
bandana covering his mouth but not the rest of his face and that he
recognized that person as Spinks. According to Holmes, Appellant
was carrying a revolver, and Spinks had a shotgun. Holmes also
acknowledged that, in an interview with the police, he was shown a
photograph only of Appellant, but added that the photograph “just
confirmed [Appellant’s] name” and did not “suggest to [him] that
that night it was Lekievius.”
When Battle heard intruders come into the house, she hid in
the bathtub. However, once she heard shots, she tried to exit the
house through the front door but was stopped by one of the intruders
and stayed near the front door until she saw the three intruders exit
the house and walk around the left side of it.
According to Smith, who lived in the neighborhood, he,
Appellant, Spinks, and some other people were at the home of
Ardrana Pate on the night of the crimes. Smith added that he had
been friends with Appellant since he “was young”; that he had
7 known Spinks since the summer of 2010; and that he had met
Bussey “through [Appellant].” Smith added that he left Pate’s house
between midnight and 1:00 a.m. and that Spinks later texted him,
asking him “to hit a lick,” which Smith said meant to commit a
robbery. Smith agreed and went outside his house to smoke a
cigarette. He then saw Spinks and Appellant “coming down,” with
Appellant carrying a handgun and Spinks carrying a shotgun.
Smith, who testified that he did not have a weapon, “jumped off [his]
porch” and the men “ran over to the [victims’] house.” According to
Smith, Appellant and Spinks knocked on the door, and when
someone answered, Appellant and Spinks went into the house.
Smith heard Bussey trying to “calm everything down,” but, he
added, “they started tussling.” Smith then heard two shots; “[t]he
first one was kind of loud, but the second one was very loud.” Smith
did not see who was shot, and he then ran to his driveway, from
where he saw Appellant and Spinks running. He saw Appellant and
Spinks go by a neighbor’s house, and “then [he] saw a person throw
a shotgun over the fence.” On cross-examination, Smith
8 acknowledged that he had given “different versions” of the events of
that night in interviews with law enforcement officials. Among other
versions, Smith told officers that he thought Spinks and Appellant
were the perpetrators, but that it was just a “guess” and that he was
home in his kitchen when he heard gunshots; that Spinks,
Appellant, and a man named Kellius Collier committed the crimes
and that he was at home and saw “the whole thing out [of his]
window”; that he was on his porch when he saw Spinks, Appellant,
and an unspecified third person commit the crimes; that he did not
know anything about the crimes; and that he participated in the
crimes by standing in the doorway of the victims’ house. Smith
testified that he had given these different versions because “[he] was
scared. It was [his] first time ever [to] be in trouble.”
Ardrana Pate, who lived near the victims’ home, testified that
she knew Smith and Appellant and had met Spinks. She also knew
the victims. Pate testified that on the night of December 4-5, 2010,
Appellant, Spinks, Smith, and Ashley Parker came to her house.
Smith was the last to arrive, shortly after midnight. She added that
9 she overheard the group “[j]okingly saying that [it] would be a sweet
lick” to rob the victims’ home and that Appellant asked Spinks to let
him “see the piece.” According to Pate, Spinks had a small backpack
and Appellant “thought that the gun was in it and he went in it and
it actually wasn’t in there. [Spinks] said . . . [he] moved it.” She
added that they left her house at about 1:30 to 1:45 a.m. on
December 5. Similarly, Ashley Parker, who knew Appellant, Smith,
and Spinks, testified that she was at Pate’s house with the three
men and then went to Appellant’s home, leaving Appellant’s house
at about 1:45 a.m.
Immediately after the shooting, an occupant of Bussey’s house
called 911, and law enforcement officials arrived at the crime scene
around 3:52 a.m. Bussey had been shot once in the leg with the
handgun and once to the right side of his face with the shotgun. The
shotgun wound was fatal. Law enforcement officers subsequently
recovered a pump shotgun from the back yard of a home on
Westchester Drive. A GBI firearms examiner determined that a
shotgun shell found at the crime scene was fired from that shotgun.
10 Although a .22-caliber bullet was recovered from Bussey’s leg, the
handgun used in the crimes was never recovered.
GBI Agent Cayce Ingalls testified about text messages that
Appellant and Spinks sent to each other from December 4 to 5, 2010.
For example, at 4:37 p.m. on December 4, Spinks sent Appellant a
text message saying that he would “be over” and that he had “the 22
and the 22 bullets and the pump shells.” At 7:43 p.m. on December
4, Appellant received a text message from Spinks saying that
“n****s just pulled up on me. Then I start poppin and they got scared
LOL they was just like tell [Appellant] it’s on site and I was like then
it’s on. . . . They bi**hes LOL you wanna kill these n****s.”
In the meantime, from December 4 to 5, Spinks was texting a
person named Marquevus Smith. At 9:00 a.m. on December 4,
Spinks asked Marquevus if he had “the pump shells I gotta hit the
big lick . . . today,” and at 2:00 p.m. on December 4, Spinks asked
Marquevus if he had “the 22.” Marquevus responded that he had the
pump shells, and with regard to Spinks’s question about the “22,”
Marquevus told Spinks to “stop texting nonsense my n***a text
11 messages get tracked.” Around 6:00 p.m. on December 4, Spinks
directed Marquevus to leave “the pump and the 22” under the porch
of Spinks’s aunt. In text messages around 1:40 to 1:55 a.m. on
December 5, Spinks told Marquevus that he “might have to come hit
this lick”; that this was the “best time” to hit “them college n****s
down there in the house with some hoes”; rob “them soft ass college
boys . . . is a sweet lick ’cause they gonna show us where everything
at”; and that “them hoes gonna be quiet cause they gonna be scared
to get shot.” Marquevus, however, declined to participate, saying
that the college girls would be “snitching” and he knew that “all of
them . . . got cell phones.”
The State also offered evidence that Spinks texted Smith at
1:55 a.m. on December 5, asking him if he “want[ed] to hit a lick.”
Smith asked, “where about and what’s it worth.” Spinks replied that
“it’s [the] college boys,” and Smith said that he lived “right by” them,
that he watched them, that there “ain’t none in there worth all that.”
Smith added that they should “wait ’til [they were] gone.” Spinks
replied that they would get nothing “when they gone,” and Smith
12 asked Spinks if he was at Appellant’s house. Spinks replied that he
was, and at 2:13 a.m., Smith texted Spinks that he would “be up
there when [he] g[o]t back from” a friend’s house. At 2:37 a.m.,
Spinks texted Smith “where you at [be]cause we left Kevius’s house.
He went to sleep.”
Agent Ingalls and Lieutenant Al Moltrum of the Barnesville
Police Department interviewed Appellant at 8:37 a.m. on December
5, as well as at 2:39 p.m. that same day. In the first interview,
Appellant denied committing the crimes, saying that he did not “go
to [the victims’ home] last night,” that he “ain’t went down there and
shot nobody,” and that “[i]f them boys saying I was at they house,”
they were lying, “[p]robably ‘cause they don’t like me.” He also
denied being with Spinks on the night of December 4-5, adding that
he was home by 10:45 p.m., got into the bed that he shared with his
little brother, and went to sleep. In the second interview, law
enforcement officials informed Appellant that they had learned,
contrary to Appellant’s statements during his first interview, that
Spinks was with him on the night of the crimes. Appellant continued
13 to deny his involvement in the crimes, saying that he was home in
bed. Appellant, however, did say that Spinks texted him on the night
of December 4 and told him about his argument with Bussey and his
friends that night. According to Appellant, Spinks said that he was
“going to get them.” Appellant told Spinks to “stay out [of] their
way.” Lieutenant Moltrum told Appellant that Pate had told the
officers that Spinks and Appellant were at her house around 2:00
a.m. on December 5 and that Appellant had gotten himself into
trouble in the first interview in saying that he had gone to sleep
around “midnight.” Appellant said that Pate was “lying” and that it
was “probably later than that” when he went to sleep. Similarly,
when Lieutenant Moltrum informed Appellant that Spinks had said
that Appellant was with Spinks “the whole time,” Appellant said
that Spinks was lying.
Appellant and Spinks testified in Appellant’s defense at trial.
Spinks testified that Appellant did not plan or take part in the
robbery. According to Spinks, the last time he saw Appellant on the
night of the crimes, Appellant “said he was going to go to sleep.” He
14 added that, during his plea hearing, he told the trial court that, if
Appellant were convicted, the “court would be convicting an
innocent man.” He further testified that he, Smith, and “some dude
[Smith] brought named Pooh” committed the crimes.
Appellant testified that he lived on Westchester Drive with his
mother, father, little brother, and sister, where he shared a bedroom
with his little brother, who is six years old. He added that he knew
Smith, who lived down the street from him, and that he had known
Spinks since August 2010. With regard to Spinks’s text at 4:37 p.m.
on December 4, Appellant said that he thought that Spinks was
simply saying that “he was happy that he had a gun.” Appellant
added that he saw Spinks about 8:30 that night at a friend’s house
and that Spinks had a book bag with him with a .22-caliber revolver
inside of it. Appellant left the friend’s house and went home.
However, after midnight on December 5, he went with Spinks and
Parker to Pate’s house. After leaving Pate’s house, Appellant,
Spinks, and Parker went to Appellant’s house, where they drank
and watched television in the garage. According to Appellant, he
15 subsequently went to bed, and Spinks and Parker left his house.
Appellant then called his girlfriend and then went to sleep.
Appellant testified that he was not “involved in any way with the
robbery of” Bussey and his friends. On cross-examination, Appellant
acknowledged that he told the police on the morning of December 5
that he had not seen Spinks on the night of December 4 to 5 and did
not know where Spinks was.
Cell phone records showed that Appellant spoke with his
girlfriend for about 45 minutes beginning at 2:26 a.m. on December
5. Appellant’s girlfriend testified that, during this conversation, she
heard Appellant tell his little brother to “scoot over in the bed.” She
added that she did not hear any background noise during the
conversation and that Appellant did not mention anything about
planning a robbery. According to Appellant’s girlfriend, Appellant
fell asleep several times during their conversation. She also testified
that Appellant called her back at 4:06 a.m. that same morning and
told her that someone in the neighborhood had been shot. Appellant
“sounded like he had just [woken] up, like he had been asleep.”
16 According to Appellant’s girlfriend, he did not appear to be out of
breath or “sound as though he had been running.”
2. Appellant claims that the evidence is insufficient to support
his convictions because he was not “competently identified” as one
of the assailants. However, the evidence establishing Appellant’s
identification as a participant in the crimes was sufficient. That
evidence included testimony from a co-indictee and two victims that
Appellant entered the victims’ house with a handgun and
participated in the crimes committed therein. It also included
evidence that contradicted the version of events that Appellant
initially gave to law enforcement officials regarding his activities on
the night of the crimes. This evidence, viewed in the light most
favorable to the verdicts, was clearly sufficient as a matter of
constitutional due process to authorize a rational jury to conclude
that Appellant participated in the crimes committed at the victims’
house. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61
LE2d 560) (1979); Ward v. State, 316 Ga. 295, 298 (888 SE2d 75)
(2023) (explaining that “the testimony of a single witness is
17 generally sufficient to establish a fact” (cleaned up)). Although
Appellant claims that the identifications of him were not reliable, it
was for the jury to resolve “conflicts or inconsistencies in the
evidence, credibility of witnesses, and reasonable inferences to be
derived from the facts.” Graham v. State, 313 Ga. 436, 440 (870 SE2d
424) (2022) (cleaned up).
3. Relying solely on the non-binding, solo concurrence by
Justice Stevens in Ball v. United States, 470 U.S. 856, 867-868 (105
SCt 1668, 84 LE2d 740) (1985), Appellant argues that double
jeopardy concerns prohibited his prosecution on the multi-count or
“multiplicitous” indictment in this case. This claim, however, is
without merit. First, the majority in Ball explained that “even where
the [Double Jeopardy] Clause bars cumulative punishment for a
group of offenses, the Clause does not prohibit the State from
prosecuting the defendant for such multiple offenses in a single
prosecution.” Id. at 860 n.7 (cleaned up). Similarly, we have held
that the “procedural protections against double jeopardy apply only
to ‘multiple prosecutions,’ meaning multiple or successive
18 indictments or criminal proceedings” and “do not apply to a single
indictment that contains multiple counts.” Williams v. State, 307
Ga. 778, 779 (838 SE2d 235) (2020) (cleaned up). For these reasons,
this claim fails.3
4. Appellant contends that the trial court erred in not
permitting the jury to have access to a transcript of an interview of
Johnson by law enforcement officials as a past recollection recorded.4
However, at trial, Appellant contended only that the jury should
have access to a short written statement that Johnson gave to the
3 As part of his argument in the enumeration concerning the indictment,
Appellant raises an issue about the trial court’s response to a jury question. During its deliberations, the jury asked the trial court whether, with regard to the tampering with evidence count of the indictment, the State had to prove that Appellant “was the one who physically had possession of the shotgun and was the one who disposed of the weapon.” The trial court answered “no” to this jury question, and Appellant contends that the answer was an abuse of discretion. However, Appellant affirmatively waived this issue by agreeing that the correct answer to the jury’s question was “no.” See Hughes v. State, 310 Ga. 453, 457 (851 SE2d 580) (2020) (appellant affirmatively waived any error in answering the jury’s questions on the issue of proximate cause when he “agreed that re-reading the indictment was the appropriate means to answer the jury’s questions”).
4 Appellant contended that the transcript should either be read to the
jury or given to them to review in the jury box. He did not seek to have the jury take the transcript to the jury room. The transcript of Johnson’s interview was not introduced into evidence at trial. 19 police, not that the jury should be given access to the transcript of
Johnson’s interview. There is therefore no ruling by the trial court
on an evidentiary issue regarding the transcript of Johnson’s
interview. Because this case was tried in 2012 under our former
Evidence Code, plain error review of the evidentiary claim that the
trial court erred in not granting the jury access to the transcript of
Johnson’s interview is not available. See Pyatt v. State, 298 Ga. 742,
746 n.7 (784 SE2d 759) (2016) (explaining that plain error review
under our current Evidence Code “applies only to any motion made
or hearing or trial commenced on or after January 1, 2013” (cleaned
up)). Moreover, under the former Evidence Code, because Appellant
did not seek at trial to have the jury be given access to the transcript
of the interview, any error in denying his request to give the jury
access to it is not preserved for appeal. See Rucker v. State, 293 Ga.
116, 121-122 (744 SE2d 36) (2013) (holding, in a case under the
former Evidence Code, that a claim that the trial court erred in not
permitting the introduction of certain evidence was not preserved
for review because the defendant did not seek to introduce the
20 evidence during trial).
5. Appellant contends that the trial court erred in denying his
motion to suppress the pretrial and trial identifications by Johnson,
Holmes, and Smith. More specifically, Appellant contends that the
identifications were the result of impermissibly suggestive
procedures and thus violated his right to due process. We conclude
that these claims fail.5
(a) First, Appellant raised no objection at trial to Smith’s
identification of Appellant as one of the perpetrators. Appellant’s
challenge to Smith’s testimony is therefore not preserved for review.
See Lane v. State, 312 Ga. 619, 622 (864 SE2d 34) (2021) (explaining
that “in the absence of a timely objection, there is no appellate
review of evidentiary rulings under the old Evidence Code” (cleaned
up)).
5 We note that, with the adoption of OCGA §§ 17-20-1 through 17-20-3,
“the Georgia General Assembly has prioritized improving the accuracy of eyewitness identifications.” Curry v. State, 305 Ga. 73, 76 n.3 (823 SE2d 758) (2019). These provisions, however, did not become effective until July 1, 2016, after the trial of this case.
21 (b) Appellant sought to suppress Johnson’s in-court
identification of him on the ground that Johnson’s identification was
the result of an impermissibly suggestive process because Holmes
told Johnson that Appellant was one of the gunmen.6 In this regard,
at trial, when Johnson was asked on cross-examination whether he
remembered telling law enforcement officials during his second
interview that Holmes told him that Appellant was the “guy” behind
Spinks during the crimes, Johnson testified, “yeah, he told me. We
talked about it. . . . But he didn’t say, like — you know, it wasn’t no,
like, I didn’t know who it was.” However, the due process principles
on which Appellant relies, as explained by such cases as Neil v.
Biggers, 409 U.S. 188 (93 SCt 375, 34 LE2d 401) (1972), and
Simmons v. United States, 390 U.S. 377, 384 (88 SCt 967, 19 LE2d
1247) (1968), apply only when the suggestive circumstances leading
to an identification are arranged or orchestrated by law enforcement
6 At the hearing on the motion to suppress, Johnson testified that he was
never shown any lineup by law enforcement officials. No other evidence was offered on this point. In addition, there was no evidence offered at trial of any pretrial identification of Appellant by Johnson. 22 officials. See Perry v. New Hampshire, 565 U.S. 228, 232-233 (132
SCt 716, 181 LE2d 694) (2012) (explaining that “we have not
extended pretrial screening for reliability to cases in which the
suggestive circumstances were not arranged by law enforcement
officers”; that “our decisions . . . turn on the presence of state action
and aim to deter police from rigging identification procedures, for
example, at a lineup, showup, or photograph array”; and that “when
no improper law enforcement activity is involved, we hold, it suffices
to test reliability through the rights and opportunities generally
designed for that purpose, notably, the presence of counsel at post-
indictment lineups, vigorous cross-examination, protective rules of
evidence, and jury instructions on both the fallibility of eyewitness
identification and the requirement that guilt be proved beyond a
reasonable doubt” (cleaned up)); Morrall v. State, 307 Ga. 444, 449
(836 SE2d 92) (2019) (quoting the foregoing principles from Perry).
See also Clay v. State, 309 Ga. 593, 598 (847 SE2d 530) (2020)
(holding that, where a witness identified the defendant in a photo
array after seeing a news report of the defendant’s arrest, the
23 defendant could not challenge the witness’s identification based on
the foregoing due process principles because the defendant was not
“challenging the identification procedure used by law enforcement,
but, instead, is challenging the weight and credibility of [the
witness’s] identification,” matters that were reserved for the jury).
For the foregoing reasons, we conclude that the trial court did not
err in denying Appellant’s motion to suppress Johnson’s
identification testimony.
(c) In contrast, Appellant’s claim regarding Holmes’s
identification testimony implicates due process concerns because the
record shows that, at Holmes’s interview with law enforcement
officials on the morning of the crimes, he identified Appellant as
being involved in the crimes after law enforcement officials showed
Holmes a single photo of Appellant.
“If an out-of-court identification by a witness is so
impermissibly suggestive that it could result in a substantial
likelihood of misidentification, evidence of that out-of-court
identification violates due process and is inadmissible at trial.”
24 Lewis v. State, 314 Ga. 654, 662 (878 SE2d 467) (2022) (cleaned up).
We employ “a two-step process in examining a trial court’s
admission of identification evidence for error,” first deciding
“whether the identification procedure used was impermissibly
suggestive.” Id. (cleaned up). “An identification procedure is not
impermissibly suggestive unless it leads the witness to the virtually
inevitable identification of the defendant as the perpetrator, and is
the equivalent of the authorities telling the witness, ‘This is our
suspect.’” Id. (cleaned up). “Second, if a trial court properly concludes
that the State employed an impermissibly suggestive pre-trial
identification procedure, the issue becomes whether, considering the
totality of the circumstances, there was a substantial likelihood of
irreparable misidentification.” Id. (cleaned up). If there is not a
substantial likelihood of irreparable misidentification, “then both
the pre-trial and in-court identifications are admissible.” Curry v.
State, 305 Ga. 73, 76 (823 SE2d 758) (2019) (cleaned up). We
consider the “totality of the circumstances” in determining whether
there is a substantial likelihood of irreparable misidentification. See
25 Howard v. State, 318 Ga. 681, 687-688 (899 SE2d 669) (2024).
Factors to consider include (1) a witness’s opportunity to view the accused at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the accused; (4) the witness’s level of certainty at the confrontation; and (5) the length of time between the crime and the confrontation.
Id.7 “Moreover, whether the witness knows the defendant is a critical
factor in determining the reliability of an identification.” Lewis, 314
Ga. at 670 (cleaned up). “We review a trial court’s ruling on a motion
7 In two recent cases, we have noted that there is tension between the
“level-of-certainty” aspect of the due process test for determining the likelihood of misidentification and our holding in Brodes v. State, 279 Ga. 435 (614 SE2d 766) (2005), that trial courts should “refrain from informing jurors [that] they may consider a witness’s level of certainty when instructing them on the factors that may be considered in deciding the reliability of that identification.” Id. at 442. See State v. Harris, 316 Ga. 272, 281 n.12 (888 SE2d 50) (2023); Pearson v. State, 311 Ga. 26, 29 n.5 (855 SE2d 606) (2021). In Harris, we explained that [w]hile it seems incompatible that a trial judge should consider the witness’s level of certainty when determining the likelihood of misidentification but the jury may not be instructed to consider the witness’s level of certainty when determining the reliability of the identification, no one has asked us to reconsider our decision in Brodes, and the trial court’s consideration of this factor is expressly sanctioned under [U.S.] Supreme Court precedent, see Neil v. Biggers, 409 U.S. 188, 199 (III) (93 SCt 375, 34 LE2d 401) (1972). 316 Ga. at 281 n.12.
26 to suppress identification evidence for an abuse of discretion,” State
v. Harris, 316 Ga. 272, 280 (888 SE2d 50) (2023), and in reviewing
a ruling on such a motion, “evidence is construed most favorably to
uphold the findings and judgment and the trial court’s findings on
disputed facts and credibility must be accepted unless clearly
erroneous.” Wright v. State, 294 Ga. 798, 801 (756 SE2d 513) (2014)
(cleaned up). Finally, “in determining whether the trial court erred
in denying the motion to suppress identification testimony, this
court may consider the evidence adduced both at the suppression
hearing and at trial.” Id. at 802 (cleaned up).
At trial, Lieutenant Moltrum and Agent Ingalls testified that
they conducted an interview with Holmes at 6:11 a.m. on December
5, about two hours after the crimes. They added that Holmes
identified a man he referred to as “Kevian’s cousin” as being the
perpetrator with the shotgun, but that Holmes said “not really”
when asked if he could identify the second perpetrator who entered
27 the house with a handgun.8 Because Lieutenant Moltrum had heard
officers at the crime scene discussing names like “Lekievius Collier,”
“Kevius,” and “Lekievius Eleby,” and because Lieutenant Moltrum
knew a “Kelius Collier,” as well as Appellant, he asked Holmes about
“Kevian,” such as where he lived. Lieutenant Moltrum asked
Holmes if “Kevian” lived three or four houses away from the victims,
and Holmes said that he did. Lieutenant Moltrum knew that
Appellant lived at that location, and he showed Holmes a copy of
Appellant’s driver’s license. Holmes recognized the picture on the
driver’s license and identified the person depicted as “Kevian” and
said that he was the second intruder. The trial court did not address
whether the use of a single photo for identification was
impermissibly suggestive, but skipped to the second part of the due
process test, ruling that there was not a substantial likelihood of
irreparable misidentification. We conclude that, even assuming that
showing Holmes the driver’s license photograph was impermissibly
8 At the pretrial hearing and at trial, Holmes denied that he initially said
that he could identify the second intruder.
28 suggestive, the trial court did not abuse its discretion in ruling that
there was not a substantial likelihood of irreparable
misidentification.
Here, the evidence indicates that the likelihood of irreparable
misidentification was low. Holmes had an ample opportunity to view
the perpetrator at the crime scene. In this regard, Holmes testified
that, at the time of the crimes, a light was on that “really shines into
the living room” where he was sitting when the intruders came into
the house. Holmes added that he was close enough to touch
Appellant and Spinks during the crimes, that Appellant
accompanied Holmes to Johnson’s bedroom to look for items to take,
and that the crimes lasted about seven minutes. Moreover, Holmes
had become personally acquainted with Appellant before the crimes
and testified that, during the crimes, he was able to see Appellant’s
face and recognized his voice when Appellant spoke. In addition,
Holmes testified that, during the crimes, he was “paying attention”
to the people at the door and to the “people who took me to the back”
of the house, and he remained certain in his identification of
29 Appellant as being one of the assailants. Holmes also testified that
being shown the photograph of Appellant did not change his “mind
in anyway [sic],” as he knew from the crime scene “who had come in
the house.” Finally, there was only a very short time — about two
hours — between the time that Holmes saw Appellant during the
crimes and the identification. Considering the totality of the
circumstances, we conclude that, even though Holmes failed to
initially identify Appellant when speaking to law enforcement
officials, the trial court did not abuse its discretion in ruling that the
presentation of a single photo to Holmes did not create a substantial
likelihood of irreparable misidentification. See Howard, 318 Ga. at
688 (holding that an initial photo array that we assumed was
impermissibly suggestive did not lead to substantial likelihood of
misidentification even where a witness who had not met the
defendant before the day of the shooting and who was uncertain in
identifying the defendant in the initial photo array had “a significant
opportunity to view [the defendant] before and after the shooting”
and identified the defendant with certainty in a second photo array);
30 Harris, 316 Ga. at 281 (explaining that “if the witness was
acquainted or otherwise personally familiar with the suspect before
making an out-of-court identification, then there is not a substantial
likelihood of misidentification regardless of an impermissibly
suggestive procedure” (cleaned up)); Pearson v. State, 311 Ga. 26, 30
(855 SE2d 606) (2021) (holding that there was no substantial
likelihood of misidentification where the witnesses had a good
opportunity to view the perpetrator during the crime, “paid
attention to him at that time,” expressed certainty in their
identifications, and the showup occurred shortly after the crimes);
Wright, 294 Ga. at 800, 802-803 (rejecting argument that a witness’s
in-court identification should have been excluded for substantial
likelihood of irreparable misidentification where the witness was
unable to select defendant definitively from a photo array but
testified that his later identification “was based on remembering
[the defendant] from the scene of the crime”).
6. Appellant contends that the trial court committed plain
error when it allowed Agent Ingalls to testify about her
31 understanding of the meaning of various text messages introduced
into evidence. However, because this case was tried under our
former Evidence Code, plain error review of this evidentiary claim
is not available. See Lane, 312 Ga. at 622. Moreover, under our
former Evidence Code, the claim is not preserved for review because
Appellant did not object to the testimony in question. See id.
(explaining that under the former Evidence Code, “in the absence of
a timely objection, there is no appellate review of evidentiary
rulings” (cleaned up)).
7. Appellant contends that the trial court made several errors
in sentencing him. We agree with one of Appellant’s claims, and we
have identified one merger error in Appellant’s sentencing that
requires correction.
Appellant contends that the trial court erred in failing to merge
the aggravated assaults of Holmes and Johnson with the armed
robbery conviction. At the outset, we note that the trial court erred
in sentencing Appellant on the armed robbery count. Because the
armed robbery served as the underlying felony for the felony murder
32 conviction on which Appellant was sentenced, the conviction and
sentence for armed robbery must be vacated. See Ruff v. State, 314
Ga. 386, 389 (877 SE2d 239) (2022) (where a defendant is “found
guilty only of felony murder, the underlying felony would certainly
be deemed to have merged, as a matter of law, into the felony murder
and a separate sentence for that underlying felony would not be
authorized” (cleaned up)). However, “the same merger analysis
applies in determining whether the . . . aggravated assault merged
into either the armed robbery conviction or the felony murder
predicated on that armed robbery.” Hood v. State, 309 Ga. 493, 503
n.9 (847 SE2d 172) (2020) (cleaned up). In this regard, we have held
that “because there is no element of aggravated assault with a
deadly weapon that is not contained in armed robbery, that form of
aggravated assault will merge into armed robbery if the crimes are
part of the same act or transaction.” Id. at 502-503 (cleaned up).
However, “where one crime is completed before another crime, the
‘same conduct’ does not establish the commission of both offenses.”
Jackson v. State, 318 Ga. 393, 411 (897 SE2d 785) (2024) (cleaned
33 up). Here, the aggravated assaults of Holmes and Johnson were
completed once Appellant and Spinks entered the house and pointed
their guns at Holmes and Johnson, and the armed robbery was
based on Appellant and Spinks subsequently taking the victims to
bedrooms in the back of the house and taking a purse from one of
the bedrooms. Under these circumstances, the aggravated assaults
do not merge with the armed robbery conviction. See Thomas v.
State, 289 Ga. 877, 878-881 (717 SE2d 187) (2011) (holding that
where the defendant committed an armed robbery against the
victim in the music room of an apartment, but where the victim was
subsequently forced into a nearby bathroom and the defendant
committed an aggravated assault against the victim in the
bathroom, the conviction for aggravated assault did not merge with
the conviction for armed robbery because “although the conviction
for the armed robbery of [the victim] also resulted from the music-
room holdup, the conviction for his aggravated assault was based on
Appellant’s forcing the shotgun down his throat later in the
bathroom, as the indictment clearly specified”). Cf. Womac v. State,
34 302 Ga. 681, 681-682, 684-685 (808 SE2d 709) (2017) (holding that
where the evidence showed that the defendant committed an
aggravated sexual battery against a minor on the bed of a motel
room, causing the victim to run into the bathroom, where the
defendant committed other crimes, the aggravated sexual battery
did not merge with the other crimes under Drinkard v. Walker, 281
Ga. 211 (636 SE2d 530) (2006), because it was completed before the
other crimes were committed).
In addition, contrary to Appellant’s contention, the trial court
did not err in sentencing Appellant for the separate assaults of
Holmes and Johnson, as those counts do not merge with each other.
See Sillah v. State, 315 Ga. 741, 758 (883 SE2d 756) (2023) (“If
crimes are committed against different victims . . . , they do not
merge.”). Finally, Appellant correctly claims (and the State
concedes) that the trial court should have merged the offense of
conspiracy to commit armed robbery with the conviction for felony
murder predicated on armed robbery. See OCGA § 16-4-8.1 (a
“person may not be convicted of both conspiracy to commit a crime
35 and the completed crime”); Simmons v. State, 314 Ga. 883, 893 (880
SE2d 125) (2022) (explaining that “the trial court properly merged
the count[ ] alleging conspiracy to commit aggravated assault [of the
victim] . . . into the felony murder conviction predicated on
aggravated assault [of the victim]” (cleaned up)).
8. Appellant claims that the prosecutor made several improper
arguments in closing. In particular, Appellant complains that the
prosecutor referred to him as a “drug dealer.” Appellant, however,
did not object to any part of the prosecutor’s closing argument. His
claim is therefore not preserved for review. See Poellnitz v. State,
296 Ga. 134, 136 (765 SE2d 343) (2014) (holding that the defendant’s
contention that the prosecutor made improper remarks during
closing argument was not preserved for review because of the failure
to make a contemporaneous objection).
9. Appellant contends that his trial counsel provided
constitutionally ineffective assistance by failing to object when
Agent Ingalls testified as to her interpretation of certain text
messages and when the State introduced autopsy photographs that
36 he contends were gruesome and prejudicial. However, Appellant did
not raise either of these claims in his motion for new trial or in his
amended motion, where he was represented by appellate counsel.
He also did not raise them at the hearing on his motion for new trial,
and the trial court did not rule on the claims. Accordingly, he has
not preserved these claims of ineffective assistance of trial counsel
for review. See, e.g., Allen v. State, 317 Ga. 1, 12-13 (890 SE2d 700)
(2023) (explaining that “ineffectiveness claims must be raised and
pursued at the earliest practicable moment, which for a claim of
ineffective assistance of trial counsel is at the motion for new trial
stage if the defendant is no longer represented by the attorney who
represented him at trial” and holding that appellant did not
preserve for review a claim of ineffective assistance where he failed
to raise the claim in his initial motion for new trial or the
amendment or during the hearing on the motion for new trial, and
the trial court did not address the claim in its order denying the
motion for new trial (cleaned up)).
37 Judgment affirmed in part and vacated in part. All the Justices concur.
Decided June 11, 2024.
Murder. Lamar Superior Court. Before Judge Wilson.
Kimberly L. Copeland, for appellant.
Jonathan L. Adams, District Attorney, Dorothy V. Hull, Jessica
B. Haygood, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Beth A. Burton, Deputy Attorney General, Meghan
H. Hill, Clint C. Malcolm, Senior Assistant Attorneys General, M.
Catherine Norman, Elizabeth H. Brock, Assistant Attorneys General,
for appellee.