307 Ga. 711 FINAL COPY
S19A1301. MOSLEY v. THE STATE.
BENHAM, Justice.
Appellant Rashard Mosley appeals his convictions for
numerous offenses, including the murder of Ivory Carter and the
attempted murder and attempted armed robbery of Frederick
Knight.1 On appeal, Mosley contends that the evidence was
1 The crimes occurred from July 30 to August 4, 2014. In October 2014, a Chatham County grand jury returned a 32-count indictment charging Mosley and two co-indictees, LaQuan Brown and Keith Johnson, in connection with the offenses committed against Carter and Knight. The 23 counts relevant to Mosley are as follows: malice murder; four counts of felony murder (predicated on hijacking a motor vehicle, armed robbery, aggravated assault, and possession of a firearm by a first offender); two counts of hijacking a motor vehicle (Carter and Knight); three counts of aggravated assault (Carter and Knight); one count of armed robbery (Carter); two counts of criminal attempt to commit a felony (attempted murder and attempted armed robbery of Knight); nine counts of possession of a firearm during the commission of a felony (one count for the use of a firearm in each of the charged offenses); and possession of a firearm by a first-offender probationer (Knight). Co-indictee Brown was tried separately in February 2016 and convicted of numerous offenses, including murder. This Court affirmed her convictions and sentences in October 2019. See Brown v. State, 307 Ga. 24 (834 SE2d 40) (2019). Johnson pleaded guilty and testified at Mosley’s trial. Mosley was tried by a jury in May 2017. The trial court directed a verdict of acquittal on the count charging felony murder predicated on possession of a firearm by a first offender (as well as the predicate felony). The jury acquitted Mosley of malice murder but found insufficient to sustain his convictions, that the trial court
erroneously permitted the State to elicit various inadmissible
hearsay statements, that the trial court erroneously permitted the
State to adduce “intrinsic evidence,” and that trial counsel was
ineffective. Finding no reversible error, we affirm.
Viewed in a light most favorable to the verdicts, the evidence
adduced at trial established as follows. In late July 2014, Mosley
and his two co-indictees, LaQuan Brown and Keith Johnson,
him guilty of all other offenses. On June 2, 2017, the trial court sentenced Mosley as a recidivist to serve: life in prison without the possibility of parole for felony murder predicated on aggravated assault; life in prison for the armed robbery of Carter to be served concurrently with the murder sentence; twenty years for hijacking Carter to be served concurrently with the murder sentence; five years for possession of a firearm during the commission of a felony (murder) to be served consecutively to the murder sentence; twenty years for hijacking Knight to be served consecutively to the sentence for possession of a firearm during the commission of a felony (murder); twenty years for the aggravated assault of Knight to be served consecutively to the sentence for hijacking Knight; and five years for possession of a firearm during the commission of a felony (attempted murder of Knight) to be served consecutively to the sentence for the aggravated assault of Knight, for a total sentence of life imprisonment without the possibility of parole plus 50 years to serve. Just days later, Mosley filed a timely motion for new trial, which he later amended in June 2018 and September 2018. Following a hearing, the trial court denied Mosley’s motion for new trial as amended on April 4, 2019. Mosley subsequently filed a timely notice of appeal to this Court; this case was docketed in this Court to the August 2019 term and submitted for a decision on the briefs. 2 checked in to a Savannah hotel; video surveillance from the hotel
captured the trio on the property. Shortly after checking in, the trio
left on foot to “meet some dude for some money.” Johnson testified
that Mosley was armed at the time and mentioned that the
rendezvous was actually a robbery setup. According to Johnson, the
trio arrived at the pre-arranged location, and he watched Brown get
into a vehicle when it arrived. Johnson testified that Mosley
approached the driver’s side of the vehicle, that Mosley “tussled”
with the male driver — later identified as Ivory Carter — and that
a gun was fired while the two men fought. Johnson explained to the
jury that the driver fled on foot after being shot and that he and his
co-indictees fled in the man’s blue SUV. Carter died as a result of
the gunshot wounds. A few days later, Brown and Mosley went to
stay at the home of Brown’s cousin, Mary Singleton; the pair arrived
at the residence in an SUV. While there, Singleton overheard the
pair discussing a robbery that netted approximately $500.
Later that week, Brown placed a telephone call to Frederick
Knight and arranged to meet him in the vicinity of Singleton’s
3 residence. When Knight arrived, Brown got “halfway” into Knight’s
truck; Mosley approached the vehicle on the driver’s side and placed
a firearm to Knight’s head, instructing him not to do anything.
Knight pressed the accelerator and sped away, and shots were fired
at his truck. Knight immediately reported the incident to police and
later identified Mosley as one of the assailants. Singleton testified
that, as to this incident, she heard Mosley and Brown discussing
how it “went wrong.”
Law enforcement later arrested Mosley and Brown at
Singleton’s residence and discovered Carter’s battered Nissan
Murano SUV parked in an adjacent lot. A search of the home
revealed the firearm used against Knight and the keys to Carter’s
SUV secreted under a mattress. The jury heard testimony from
Singleton that she lived with kids and did not keep guns in the
residence; she also testified that she observed Mosley place the
firearm under the mattress.
1. Mosley first contends that the evidence against him was
insufficient with respect to the offenses involving Knight, arguing
4 that the “evidence was insubstantial,” that it was “vague,” and that
it merely cast on Mosley a “grave suspicion” of guilt. It is well
settled, however, that we view the evidence in the “light most
favorable to the verdict, with deference to the jury’s assessment of
the weight and credibility of the evidence.” (Citation and
punctuation omitted.) Hayes v. State, 292 Ga. 506, 506 (739 SE2d
313) (2013). Here, Knight identified Mosley as his assailant, the
firearm used during the offense was discovered in Singleton’s
residence (where Mosley was staying), and Mosley was identified as
having hidden the firearm where it was discovered. Further,
Singleton overheard Mosley make incriminating statements about
the robbery going “wrong.”2 With respect to Carter, Johnson
testified that Mosley was armed on the night of Carter’s murder and
that the arrangement to meet Carter was a setup; Johnson also
2 As discussed below, Mosley contends that Knight’s identification was
“fundamentally flawed” and that trial counsel was ineffective for failing to move to suppress it. He also argues that the evidence was insufficient because it was based, at least in part, on hearsay testimony. However, “in determining the sufficiency of the evidence, we consider all of the evidence admitted by the trial court, regardless of whether it was erroneously admitted.” Green v. State, 291 Ga. 287, 289 (1) (728 SE2d 668) (2012). 5 identified Mosley as the triggerman in Carter’s killing; Mosley
arrived at Singleton’s residence in the victim’s vehicle; and the keys
to the SUV were found alongside a firearm that Mosley concealed
under a mattress. Accordingly, the evidence recounted above was
plainly sufficient to support Mosley’s convictions. See Jackson v.
Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979).
Therefore, this claim is without merit.
2. Over Mosley’s objection, the trial court permitted the State
to present evidence and testimony concerning two uncharged
offenses — the burglary of Prince Owens and the armed robbery and
aggravated assault of George Jackson. The trial court concluded
that evidence of the uncharged offenses was admissible “as intrinsic
evidence of the same series of transactions as the crimes charged in
the instant indictment.” Mosley continues to argue on appeal that
the trial court erred in this respect. We disagree.
While OCGA § 24-4-404 (b) (“Rule 404 (b)”) generally controls
the admission of other acts evidence, also known as “extrinsic
evidence,”
6 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.
(citations and punctuation omitted; emphasis in original.) United
States v. Edouard, 485 F3d 1324, 1344 (II) (C) (11th Cir. 2007). See
also Smith v. State, 302 Ga. 717 (4) (808 SE2d 661) (2017).
[E]vidence 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.
(Citation and punctuation omitted.) Williams v. State, 302 Ga. 474,
485-486 (IV) (d) (807 SE2d 350) (2017). Finally, “[t]he evidence must
also meet the balancing test of OCGA § 24-4-403 [(‘Rule 403’)].”
Clark v. State, 306 Ga. 367, 374 (4) (829 SE2d 306) (2019). We
review the trial court’s ruling for abuse of discretion. See Fleming
v. State, 306 Ga. 240, 245 (3) (a) (830 SE2d 129) (2019).
As to the burglary, the jury heard testimony that, in late July
7 2014 — around the same time as the other charged offenses —
Brown contacted Owens asking to be picked up at a local apartment
complex. Owens arrived at the meeting spot and contacted Brown
by phone; although Brown advised Owens that she would be “out in
a minute,” she never appeared. Owens eventually returned home
and discovered that his home had been burglarized. The jury learned
that Owens again attempted to reach out to Brown, but a male
answered the call and, further, that the telephone number used to
contact Owens was also used to contact Carter, the murder victim.
That same week, George Jackson was driving in the vicinity of
Singleton’s residence when he heard someone call out his name and
then saw people on bicycles steer in front of his vehicle; Jackson
stopped his SUV and two individuals jumped into his vehicle. One
of the individuals, a woman, brandished a gun and demanded that
Jackson turn over his keys. Following a struggle for the firearm,
Jackson escaped on foot; his cellular telephone and car keys were
taken from the vehicle. Jackson later identified Brown in a photo
array, indicating that she “favored” the woman from the incident,
8 and Jackson’s keys were found hidden under the mattress in
Singleton’s residence.
Though Brown and Mosley were not charged with all of the
same offenses, the evidence suggests that Brown and Mosley
engaged in a week-long crime spree. The burglary of Owens “was a
link in the chain of events leading up to [Carter’s] murder.” See
Brown v. State, 307 Ga. 24, 29 (2) (834 SE2d 40) (2019). Likewise,
the incident involving Jackson occurred within days of Carter’s
murder and the day before the armed robbery of Knight; the incident
involving Jackson occurred just blocks from Singleton’s residence,
and Singleton’s telephone number was used in both offenses.
Further, evidence from the incident involving Jackson was
discovered alongside evidence from both Carter’s murder and the
incident involving Knight. The evidence of the uncharged offenses
was, as the trial court concluded, evidence of the same series of
transactions as the crimes charged in the indictment. See Williams
v. State, 342 Ga. App. 564 (1) (804 SE2d 668) (2017) (evidence of
uncharged carjacking admissible as intrinsic evidence where it
9 occurred in the middle of a three-day carjacking spree and where
evidence from the uncharged offense helped connect defendant to
charged offenses). See also Johnson v. State, 348 Ga. App. 831 (1)
(823 SE2d 351) (2019); Baughns v. State, 335 Ga. App. 600 (1) (782
SE2d 494) (2016).
Further, though the intrinsic evidence indirectly implicated
Mosley in additional criminal acts and had only minimal evidentiary
value, we cannot say that the trial court abused its discretion in
concluding that the probative value of this evidence was not
substantially outweighed by the danger of unfair prejudice. See
Olds v. State, 299 Ga. 65, 70 (2) (786 SE2d 633) (2016) (recognizing
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)).
3. Though Brown did not testify at Mosley’s trial, the State
10 was permitted to adduce various statements and writings attributed
to her. Mosley argues on appeal, as he did below, that this was
erroneous and that Brown’s statements were nothing more than
inadmissible hearsay.
Though hearsay is generally inadmissible, see OCGA § 24-8-
801, “[u]nder OCGA § 24-8-801 (d) (2) (E) [(‘Rule 801 (d) (2) (E)’)], a
statement by a defendant’s co-conspirator made ‘during the course
and in furtherance of the conspiracy, including a statement made
during the concealment phase of the conspiracy[,]’ is not excluded by
the hearsay rule when offered against the defendant.” Dublin v.
State, 302 Ga. 60, 63 (1) (805 SE2d 27) (2017) (quoting OCGA § 24-
8-801 (d) (2) (E)). To admit such statements under this rule, “the
State is required to show by a preponderance of the evidence that a
conspiracy existed, the conspiracy included the declarant and the
defendant against whom the statement is offered, and the statement
was made during the course and in furtherance of the conspiracy.”
Kemp v. State, 303 Ga. 385, 392 (2) (b) (810 SE2d 515) (2018).
Mosley’s arguments — which pertain to three sets of verbal or
11 written statements made by Brown — are premised on his
contention that Brown’s statements were not, in fact, made during
the course and in furtherance of the conspiracy.3 When reviewing
the trial court’s ruling in this respect, “we accept the trial court’s
factual findings . . . unless they are clearly erroneous. We apply a
liberal standard in determining whether a statement is made in
furtherance of a conspiracy, and statements that further the
3 We need not delve into the co-conspirator analysis with respect to two
additional challenged statements because the testimony was not, as Mosley contends, hearsay. The first statement was made shortly after Carter’s murder: Brown (who was pregnant at the time of the offenses) made an emotional telephone call to Singleton and asked Singleton to care for her child “[i]f anything happened” to Brown. Singleton testified about this conversation and testified that Brown made a similar request days later while staying at Singleton’s residence. As the State rightly explains on appeal, this testimony was not hearsay as it was not offered to prove the truth of the matter asserted, that is, the State was not seeking to prove that Brown wanted Singleton to care for her child. Instead, the testimony established Brown’s consciousness of guilt and apparent belief that she would be unavailable to raise her child. See Blackmon v. State, 306 Ga. 90, 94 (2) (829 SE2d 75) (2019) (“Some of [the statements] may not qualify as hearsay, because they may have been offered not to prove the truth of what [was] said . . . but rather only to show that [the declarant] had made the statement.”). Second, Singleton testified that she overheard Mosley and Brown discussing “getting money” from Carter’s robbery and that she heard them say that “they” got “three or $500.” There was no further clarification on this point and, thus, for all that appears, this statement is attributable to both Brown and Mosley; Mosley does not argue that his own statement was not admissible against him at trial. See Haney v. State, 305 Ga. 785 (4) (827 SE2d 843) (2019). 12 interests of the conspiracy in some way meet this standard.” Kemp,
303 Ga. at 393 (2) (b).
(a) Singleton testified at trial that, shortly after Brown and
Mosley arrived at her residence, she had an emotional conversation
with Brown in which Brown disclosed that Mosley shot Carter.
Mosley contends that this statement did not further the conspiracy
but, instead, simply “spilled the beans” to Singleton. See State v.
Wilkins, 302 Ga. 156, 160 (805 SE2d 868) (2017) (recognizing that
“a statement which was not made ‘to conceal the conspiracy and
served only to disclose the scheme,’ or which ‘merely inform[ed] the
listener of the declarant’s activities,’” was not admissible under Rule
801 (d) (2) (E)). However, “[n]arratives of past events . . . are
admissible under Rule 801 (d) (2) (E) if they serve some present
purpose in the conspiracy.” Kemp, 303 Ga. at 395 (2) (b) (ii). As
such, the context of Brown’s statement is important.
It is clear that Brown relied extensively on Singleton for help
throughout the week-long crime spree. After Carter’s murder,
Brown telephoned Singleton for support and reassurance; later,
13 Brown and Mosley appeared at Singleton’s residence looking for a
place to stay, which Singleton provided; Brown later used
Singleton’s telephone to set up additional crimes, including the one
involving Knight; and Mosley and Brown continued their crimes
while staying at Singleton’s residence and hid evidence in the
residence while staying there. Brown’s statement to Singleton — in
which she identified Mosley as the triggerman — was made during
an emotional conversation in which Brown asked Singleton for help.
Thus, Brown’s statement to Singleton was not simply a confession;
instead, it was made as part of Brown’s on-going relationship with
Singleton and as part of Brown’s continued need for assistance from
Singleton — whether emotional or logistical — while she and Mosley
continued to commit their crimes (and attempted to evade arrest).
Accordingly, given the liberal standard applied to this inquiry, it
was not clearly erroneous for the trial court to conclude that Brown’s
statement that Mosley shot Carter was made in furtherance of the
conspiracy.
(b) Mosley next challenges the admission of jailhouse letters
14 drafted by Brown to Mosley, some written before she made
incriminating statements to police and some written after. As to the
pre-admission letters, Mosley asserts that “nothing in the letters
demonstrate[s] anything other than a couple expressing their love
and jealousness to one another.” This argument, however, is
unavailing. Though the letters touch on the couple’s romantic
relationship, the letters also plainly include commitments and
reassurances concerning the pending charges. In one letter, Brown
states that she will always be on Mosley’s side, that she would die
for him, and that she would lie under oath for him. In a separate
letter, Brown characterizes herself and Mosley as “Bonnie & Clyde”
and remarks that the couple is “in it” for the “long haul.” In fact,
Brown suggests that the couple can return to their criminal lifestyle
upon their release. “[S]tatements that promote cohesiveness among,
or provide reassurance to, other conspirators are made in
furtherance of a conspiracy.” Kemp, 303 Ga. at 395 (2) (b) (ii).
Accordingly, it was not clearly erroneous for the trial court to
determine that Brown’s statements in her pre-admission writings
15 were made in furtherance of the conspiracy.
In the letters following her admission to police — an admission
which implicated both Brown and Mosley in Carter’s murder —
Brown admits to Mosley that she spoke with law enforcement, and
she asks for his forgiveness. The letters briefly describe what Brown
told police about Mosley’s involvement, what information the police
have concerning the crime, what evidence the police lack, and how
Mosley can help himself. In her letters, Brown relays to Mosley that
investigators have not identified the actual shooter, she suggests
that he could claim self-defense, and she tells him that, “no matter
what,” she would maintain that he was not the triggerman; she also
suggested implicating their co-indictee as the actual shooter.
Mosley argues that Brown’s statements in these letters cannot
have been made in furtherance of the conspiracy or its concealment
because the conspiracy ended following Brown’s statement to police
that incriminated both herself and Mosley, and, thus, that they were
inadmissible hearsay. See O’Neill v. State, 285 Ga. 125, 126 (674
SE2d 302) (2009); Crowder v. State, 237 Ga. 141, 152 (227 SE2d 230)
16 (1976). Pretermitting whether this principle remains good law
under Georgia’s current Evidence Code,4 any error in the admission
of these letters was harmless. The letters in question pertain to
Mosley’s involvement in Carter’s murder; however, the evidence
against him in this regard was considerable. Video surveillance
captured Mosley with his two co-indictees before and after Carter’s
alleged murder; Johnson testified that Mosley was armed on the
night of Carter’s murder and that the arrangement to meet Carter
was a setup; Johnson identified Mosley as the triggerman in Carter’s
4 Crowder was concerned with harmonizing two “mutually exclusive” former Code sections concerning the admissibility of statements by a co- conspirator. See Crowder, 237 Ga. at 151-152 (“The question thus is whether that confession was inadmissible because made ‘after the enterprise is ended’ ([Ga. Code Ann.] § 38-414) or admissible because made ‘during the pendency of the criminal project’ ([Ga. Code Ann.] § 38-306). The two sections are mutually exclusive.”). See also Munsford v. State, 235 Ga. 38, 42-43 (218 SE2d 792) (1975) (discussing the same). Likewise, decisions under Georgia’s old Evidence Code declaring that “a conspirator’s post-arrest statement to police incriminating a co-conspirator terminates the conspiracy,” O’Neill, 285 Ga. 126, appear to be premised on former OCGA § 24-3-52, which provided that “[t]he confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself.” See also Fetty v. State, 268 Ga. 365, 371 (489 SE2d 813) (1997). It does not appear that we have squarely addressed this issue under the current Evidence Code. See Harvey v. State, 300 Ga. 598, 603 (797 SE2d 75) (2017) (referencing the principle (but not addressing it) in a case in which the current Evidence Code was applicable), overruled on other grounds by Nalls v. State, 304 Ga. 168 (815 SE2d 38) (2018). 17 killing; Carter’s SUV was found parked adjacent to Singleton’s
residence; the keys to Carter’s SUV were found secreted under a
mattress in Singleton’s residence next to a firearm used in an armed
robbery in which Mosley was identified as the gunman; and
Singleton testified to hearing Mosley make various incriminating
statements concerning the robbery gone wrong. See Davis v. State,
302 Ga. 576, 584 (4) (805 SE2d 859) (2017) (“Even if the statement
. . . was deemed to be outside the co-conspirator exception to hearsay,
its admission into evidence was harmless as it was merely
cumulative of other evidence at trial . . . that [the appellant] was the
shooter.”).
(c) Finally, Mosley challenges as inadmissible hearsay certain
statements made by Brown in a telephone call and letter to Owens,
the victim of the uncharged burglary. Neither claim has merit.
First, Mosley takes issue with Owens’ testimony concerning his
telephone conversation with Brown on the day of the burglary,
namely, that Brown asked Owens to pick her up. Mosley contends
that these statements are inadmissible hearsay because they do not
18 “fit” into the State’s theory that Brown was setting up “older men . .
. so that she could carjack them.” As an initial matter, Owens’
testimony recounting Brown’s statements was not hearsay. As the
State correctly explains on appeal, Owens’ testimony concerning the
telephone conversation was not offered to prove the truth of the
matter asserted; the State was not seeking to prove that Brown was
at a specific location or that she needed a ride. Instead, this
testimony simply explained why Owens left his residence and,
eventually, linked the telephone number used by Brown to one used
to contact Carter. Moreover, even assuming that the testimony was
hearsay, the State demonstrated by a preponderance of the evidence
the existence of a conspiracy, that the conspiracy involved Brown
and Mosley (among others), and that the burglary of Owens was the
first step in their week-long crime spree.
Second, in a letter to Owens — drafted before her interview
with investigators — Brown asked Owens to reach out to Knight and
convince him not to appear for court. Though Mosley contends that
the letter “never mentions . . . Mosley” and that the letter served
19 only Brown’s interests, the trial court was authorized to conclude
that Brown’s letter furthered the conspiracy in that it was an
attempt to continue to conceal their crimes and avoid prosecution.
4. Finally, Mosley asserts that his trial counsel was
constitutionally ineffective in failing to move to suppress Knight’s
pre-trial identification of Mosley and by failing to object to the State
presenting Owens’ prior testimony from Brown’s trial. We agree
with the trial court that Mosley is not entitled to relief.
To succeed on his claims, Mosley must show both that his trial
counsel’s performance was deficient and that he suffered prejudice
as a result of counsel’s deficient performance. Strickland v.
Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)
(1984). “To prove deficient performance, Appellant must show that
his lawyer performed at trial in an objectively unreasonable way
considering all the circumstances and in the light of prevailing
professional norms.” Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d
637) (2013). Appellant must also show that “the deficient
performance prejudiced the defense, which requires showing that
20 counsel’s errors were so serious that they likely affected the outcome
of the trial.” Jones v. State, 305 Ga. 750, 755 (4) (827 SE2d 879)
(2019).
“[S]atisfaction of this test is a difficult endeavor. Simply
because a defendant has shown that his trial counsel performed
deficiently does not lead to an automatic conclusion that he was
prejudiced by counsel’s deficient performance.” Davis v. State, 306
Ga. 140, 144 (3) (829 SE2d 321) (2019). And “[i]f an appellant is
unable to satisfy one prong of the Strickland test, it is not incumbent
upon this Court to examine the other prong.” (Citation and
punctuation omitted.) Id. at 143 (3). With these principles in mind,
we address each of Mosley’s arguments in turn.
(a) Within hours of the incident, law enforcement presented
Knight with a six-photograph lineup that included an older
photograph of Mosley, but Knight could not make an identification.
Days later, police presented Knight with a second six-photograph
lineup that included a different, more recent photograph of Mosley
and a fresh set of photographs of individuals with similar features.
21 Though the second photographic lineup used an entirely different
set of photographs, Mosley’s photograph was unintentionally left in
the same position in both lineups; Knight identified Mosley in the
second lineup and later identified him at trial.
According to trial counsel, he was unaware until the middle of
trial that Mosley’s photograph had been left in the same position in
both the first and second lineups. Trial counsel testified — and the
record reflects — that, although he did not move to suppress the
identification, trial counsel cross-examined the detective on this
“mistake” and then, during closing argument, asserted that Knight’s
identification was not trustworthy. Mosley claims, however, that
trial counsel rendered constitutionally ineffective assistance by
failing to move to suppress the identification.
“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.” Richardson v. State, 276
Ga. 548, 553 (3) (580 SE2d 224) (2003). Here, trial counsel would
22 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.” Clark v. State, 271 Ga. 6, 12 (7) (b)
(515 SE2d 155) (1999). 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.’” (Citation
and punctuation omitted.) Williams v. State, 286 Ga. 884, 888 (4)
(b) (692 SE2d 374) (2010). “Where the identification procedure is
not unduly suggestive, it is not necessary to consider whether there
was a substantial likelihood of irreparable misidentification.” Id.
Here, the fact that Mosley was the only one to appear in both
the first and second lineups did not render the second lineup
impermissibly suggestive. See Clark v. State, 279 Ga. 243 (4) (611
SE2d 38) (2005). Likewise, the second lineup was not impermissibly
suggestive simply because Mosley’s picture was inadvertently left in
the same position in both lineups. See Baugher v. State, 212 Ga.
23 App. 7, 13 (3) (440 SE2d 768) (1994). In fact, Mosley has failed to
demonstrate that the identification procedure the police used was
performed in an inherently suggestive manner. Compare Perry v.
New Hampshire, 565 U. S. 228, 243 (132 SCt 716, 181 LE2d 694)
(2012) (identifying some improperly suggestive lineup procedures).
Mosley, “[h]aving failed to show that an objection to the
identifications would have been successful, . . . has failed to establish
deficient performance by his trial counsel.” Armour v. State, 290 Ga.
553, 555 (2) (a) (722 SE2d 751) (2012).
(b) Owens, the victim of the uncharged burglary, testified at
Brown’s trial; he was cross-examined, and his sworn testimony was
transcribed. Owens was scheduled to testify at Mosley’s trial but
was unable to appear because of an emergency medical condition
requiring immediate heart surgery. The transcript reflects that the
parties agreed to read Owens’ prior testimony into evidence at
Mosley’s trial. The transcript also reflects that trial counsel initially
opposed presenting Owens’ prior testimony but that he eventually
assented, stating as follows:
24 Owens knows my client[,] [a]nd I’ve been doing this a long time[.] I would bet a dollar and give you really good odds that if he comes in here and sits on this stand he’s going to probably identify him in court.
Mosley argues on appeal, as he did below, that trial counsel was
ineffective for agreeing to allow the State to present Owens’ earlier
testimony. According to Mosley, had trial counsel objected, it is
likely that Owens’ testimony would not have been admitted during
trial.
Even if we presume that trial counsel performed deficiently in
this regard, Mosley has failed to demonstrate prejudice. As Mosley
recognizes on appeal, nothing in Owens’ testimony directly
implicates him in the burglary of Owens’ residence. Indeed, the
evidentiary value in Owens’ testimony is in showing that the
telephone number Brown used to communicate with Owens was also
used to communicate with Carter. This fact is less pertinent in
Mosley’s trial because Johnson directly connected Mosley to Carter’s
murder and identified him as the shooter. In light of the limited
value of Owens’ testimony at Mosley’s trial, Mosley has not shown
25 that trial counsel’s decision here likely affected the outcome of trial.
Accordingly, Mosley is not entitled to relief on his claim that he
received ineffective assistance of counsel. See Anthony v. State, 303
Ga. 399, 410 (9) (811 SE2d 399) (2018) (failure to object to evidence
not prejudicial to defendant cannot support a finding of
ineffectiveness).
Judgment affirmed. All the Justices concur.
DECIDED JANUARY 27, 2020. Murder. Chatham Superior Court. Before Judge Abbot. Brian J. Huffman, Jr., for appellant.
26 Meg E. Heap, District Attorney, Christine S. Barker, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew D. O’Brien, Assistant Attorney General, for appellee.