311 Ga. 26 FINAL COPY
S20A1539. PEARSON v. THE STATE.
NAHMIAS, Presiding Justice.
At his trial in September 2011, the jury found Appellant
Gregory Pearson guilty of five counts of armed robbery, two counts
of burglary, one count of aggravated assault, and six counts of
possession of a firearm during the commission of a felony in
connection with robberies in two motel rooms in Valdosta. In this
appeal, he claims that his trial counsel provided ineffective
assistance by failing to object to evidence of three witnesses’
identification of Appellant at a roadside “showup.” He also raises a
claim of trial court error and a claim of ineffective assistance of
counsel related to a surveillance video, because the video was
authenticated by his accomplice, LaQuita Frazier, and Frazier
identified him on the video. Finally, Appellant claims that the lack
of a transcript of voir dire, opening statements, and closing
arguments violates his constitutional right to due process. All of these claims are meritless, so we affirm.
1. The evidence presented at Appellant’s trial showed the
following. On the evening of May 9, 2010, Harold Damron, John
Sparks, Aimee Ellis, Shonda Mathis, and Mathis’s two children were
staying in a room at the Rodeway Inn in Valdosta. Around 9:15 p.m.,
a man knocked on the door. When Damron answered the door, the
man asked him for a cigarette. Damron gave him a Marlboro Light
cigarette and turned back toward the room. The man then pointed a
black handgun at Damron’s back and shoved Damron inside the
room. The man waved his gun around, pointing it at everyone. He
announced that he was robbing them and ordered them to give him
all their money. He took some money from Damron, $3 from Sparks,
and a $100 bill from Ellis’s purse. He also took keys for three
vehicles, which he then used to search the victims’ vehicles in the
parking lot as Damron and Ellis watched him from the motel
window. After he was finished with the vehicles, he tried to get back
in the motel room, but when the victims refused to open the door, he
left. They then called 911. When the police arrived, Ellis told them
2 that the robber was a black man wearing a “white tank [top], hat,
and white shorts and white shoes.”
Around 9:40 p.m., Kevin McCafferty, Shannon Sheffield, and
Ian Morrison, who had been out working together, returned to their
rooms at the Quality Inn, which was next to the Rodeway Inn.
McCafferty and Sheffield were sharing a room, and Morrison had a
room next door. A man followed McCafferty and Sheffield into their
room. He hit Sheffield in the head with a pistol, knocking Sheffield
to the ground. The man then pointed his gun at them. Sheffield gave
the man $15, and McCafferty, who “kept [his] eyes” on the man’s
gun and face, gave him $10. The man left. McCafferty saw a Texas
license plate on the man’s car.
Around this time, a man knocked on Morrison’s door. Morrison
pulled back the curtain of his window so he could see the man, who
was wearing a white sleeveless shirt, a white hat, white shorts, and
white socks.1 Morrison did not let him in. Morrison saw a small, teal-
1 Morrison gave this description of the man’s complete outfit in his trial
testimony. In his statement to the police immediately after the incident,
3 colored car with a Texas license plate backed into a space in the
parking lot and a woman in a black outfit sitting in the driver’s seat.2
After the woman said, “Come on, let’s go,” the man in white clothes
got into the car, and they drove away. McCafferty and Sheffield went
to Morrison’s room to tell him about the robbery, and they called the
police, providing a description of the car and license plate.
Soon after, based on that description, police officers in nearby
Florida pulled over the green Chevy Cavalier with a Texas license
plate that LaQuita Frazier was driving with Appellant in the
passenger seat. Frazier was wearing a black dress, and Appellant
was wearing a white tank top, a white hat, white calf-length pants,
and white shoes. Inside the car, there was a pack of Newport
cigarettes, which Frazier later testified was the brand Appellant
smoked; a single Marlboro cigarette; and a total of $152, including a
Morrison mentioned only that the man was black and was wearing a white tank top and white hat. McCafferty and Sheffield described the robber to the police only as a “black man,” with no other specific details. 2 Morrison testified that he had first noticed this car when he, Sheffield,
and McCafferty drove into the parking lot because he travels frequently and he pays attention to his surroundings. 4 $100 bill, which Ellis later testified was the one that had been taken
from her based on the way it was folded.
Valdosta police officers who had responded to the 911 calls
from the motels told the robbery victims and Morrison that other
officers had pulled someone over based on the description of the
perpetrator’s vehicle, and asked if anyone could identify the robber.
Ellis, McCafferty, and Morrison then went with the officers to the
traffic stop.3 When Ellis, McCafferty, and Morrison arrived at the
roadside where Appellant and Frazier’s car was pulled over, they
were allowed to walk close to the vehicle in which Appellant was
sitting to see if they could identify him.4 Ellis and McCafferty
identified Appellant as the man who had robbed them, and Morrison
identified Appellant as the man who knocked on his door. Morrison
was also shown Frazier and identified her as the woman who had
3 Ellis testified that she volunteered to identify Appellant because she
was certain that she could identify him, explaining, “I will never forget that face.” 4 Neither Ellis nor Morrison testified about whether Appellant was in a
police car, and McCafferty first testified that Appellant was in a police car but then testified that he could not remember. One of the officers who participated in Appellant’s arrest testified that Appellant was put in the back of another officer’s car. 5 been sitting in the car in the Quality Inn parking lot, and Morrison
identified the car that the police had pulled over as the car that he
had seen at the motel.
At trial, Ellis and McCafferty, as well as the other three victims
who testified (Damron, Sparks, and Sheffield), identified Appellant
in court as the man who robbed them, and Morrison identified
Appellant in court as the man who knocked on his door. Ellis
testified that she was certain that the man she identified at the
roadside showup was the robber, and all of the witnesses testified
that they had no doubt or question that Appellant was the man that
they saw at the motel. Damron and Morrison also specifically
testified that their identifications were based on what they
remembered from the night of the robberies, with Morrison adding,
“You just don’t forget stuff like that.” Ellis and Damron testified that
the lights were on in their motel room, so they were able to see
Appellant well, and Ellis added that the parking lot was well-lit.
Frazier, who had pled guilty to two counts of robbery and
agreed to testify against Appellant, told the jury the following. She
6 and Appellant were driving on May 9, 2010, when Appellant said
that he wanted to rob a woman Frazier knew. Appellant had a black
handgun with him. When Frazier told Appellant that she did not
know where his intended target lived, they went to a motel.
Appellant got out of the car and returned after a short time. When
he got back in the car, he pulled his gun out from under his clothes
and put it on his lap. He told Frazier to drive a bit further. He saw
someone unpacking a car and told Frazier to back up before the
person got away. Appellant then got out of the car, and Frazier saw
him hit the person with his gun. She yelled at Appellant to “come
on.” As Appellant got into the car, Frazier saw a man looking out the
window from another room. They then drove toward Jacksonville,
Florida. When the police started to follow them, Appellant threw his
gun out the car window.
The gun was never recovered. Appellant did not testify at trial.
The jury found Appellant guilty as charged, and the trial court
sentenced him to serve life in prison plus five years and — after a
long delay — denied his motion for new trial. This appeal followed.
7 2. As discussed above, Ellis, McCafferty, and Morrison
identified Appellant at the roadside showup on the night of the
crimes. Appellant’s trial counsel filed a pretrial motion to suppress
testimony about the showup identifications, arguing that the
procedure was “unduly suggestive,” “inherently unreliable,” and
“likely [to] cause misidentification.” The record does not include an
order ruling on the motion, however, and trial counsel did not
mention the pretrial motion or otherwise object when the evidence
of the showup identifications was admitted during the trial.
Appellant argues that his trial counsel’s failure to secure a
ruling on the suppression motion constituted ineffective assistance.
To succeed on this claim, Appellant must show both that his trial
counsel’s performance was professionally deficient, meaning that
counsel performed in an “objectively unreasonable way considering
all the circumstances and in light of prevailing professional norms,”
and that Appellant suffered prejudice as a result, meaning that
counsel’s error “likely affected the outcome of the trial.” Mosley v.
State, 307 Ga. 711, 720 (838 SE2d 289) (2020) (citations and
8 punctuation omitted). See also Strickland v. Washington, 466 U.S.
668, 687 (104 SCt 2052, 80 LE2d 674) (1984). We need not address
both parts of this test if Appellant fails to prove one. See Mosley, 307
Ga. at 720.
Appellant correctly points out that this Court has said that “a
one-on-one showup is inherently suggestive.” Butler v. State, 290 Ga.
412, 414 (721 SE2d 876) (2012) (citation and punctuation omitted).
Nevertheless, evidence of an identification made during such a
showup is inadmissible only if the showup procedure was
impermissibly suggestive and there was a substantial likelihood of
irreparable misidentification. See id. at 415. See also Scruggs v.
State, 309 Ga. App. 569, 576 (711 SE2d 86) (2011) (holding that a
showup procedure was not impermissibly suggestive).
We need not decide whether the showup procedure in this case
was impermissibly suggestive, because even assuming that it was,
Appellant has failed to show that there was a substantial likelihood
of irreparable misidentification. See Butler, 290 Ga. at 415
(explaining that if there was no substantial likelihood of irreparable
9 misidentification, the reviewing court may pretermit the question of
impermissible suggestiveness). Factors to be considered in
evaluating the likelihood of misidentification include the
opportunity of the witness to view the criminal at the time of the
crime, the witness’s degree of attention, the accuracy of the witness’s
prior description, the level of certainty demonstrated by the witness
at the identification, and the length of time between the crime and
the showup. See, e.g., White v. State, 350 Ga. App. 218, 222-223 (828
SE2d 445) (2019); Freeman v. State, 306 Ga. App. 783, 785 (703
SE2d 368) (2010). See also Neil v. Biggers, 409 U.S. 188, 199-200 (93
SCt 375, 34 LE2d 401) (1972).5
5 In this Court’s 4-3 decision in Brodes v. State, 279 Ga. 435 (614 SE2d
766) (2005), the majority opinion, in considering the pattern jury instructions for criminal cases in Georgia courts, cited a “scientifically-documented lack of correlation between a witness’s certainty in his or her identification of someone as the perpetrator of a crime and the accuracy of that identification” in holding that trial courts should “refrain from informing jurors 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. However, as indicated by the cases cited in the text above, Georgia courts have continued, as we are obliged to do on matters of federal constitutional law, to follow the holding of the United States Supreme Court in Neil that courts reviewing the admissibility of evidence of a showup identification as a matter of constitutional due process should consider “the level of certainty demonstrated by the witness at the confrontation.” 409 U.S. at 199. 10 In this case, the evidence indicates that the likelihood of
irreparable misidentification was low. Ellis, McCafferty, and
Morrison each had a good opportunity to view the perpetrator at
their motel rooms and paid attention to him at that time. Ellis
testified that the lights were on in her room and the parking lot was
well-lit, so she was able to see Appellant well. McCafferty was held
at gunpoint by Appellant and testified that he focused on Appellant’s
face. And Morrison testified that he moved his curtain to look out
the window when Appellant was at his door and generally paid close
attention to his surroundings. All three witnesses indicated that
they had no doubt that Appellant was the perpetrator, and although
McCafferty and Morrison did not testify about their level of certainty
at the time of the showup, Ellis testified that she had been certain
that she correctly identified the robber. And the showup happened
shortly after the crimes.
Although the pre-showup descriptions given by Ellis,
McCafferty, and Morrison were not detailed, with all three
witnesses giving the perpetrator’s race and gender and Ellis and
11 Morrison mentioning some of his white clothing, nothing in those
descriptions was inaccurate, and in any event the lack of detail alone
does not require a finding of a substantial likelihood of
misidentification. The totality of the circumstances does not show
that the trial court would have found a substantial likelihood of
misidentification. See, e.g., Butler, 290 Ga. at 415 (holding that
there was not a substantial likelihood of irreparable
misidentification when the victim “had [the] opportunity to view his
attacker’s face and focused his attention thereon,” his description of
the attacker was “‘fairly accurate,’” and there was less than an hour
between the crime and the identification (citation omitted));
Freeman, 306 Ga. App. at 785 (holding that there was not a
substantial likelihood of irreparable misidentification,
notwithstanding the victim’s initial description of the robber’s t-
shirt color, when “the victim observed [the appellant] from ‘two or
three feet away’ for several minutes while he was being robbed”; “the
area of the parking lot where the robbery occurred was well lit”; the
showup happened less than 30 minutes after the incident; and the
12 victim “expressed a high degree of certainty that [the appellant] was
the man who robbed him”). “‘[H]aving failed to show that an
objection to the identifications would have been successful,
[Appellant] has failed to establish deficient performance by his trial
counsel’” for not securing a ruling on counsel’s motion to suppress,
so Appellant’s claim falters on the first prong of the ineffective
assistance test. Mosley, 307 Ga. at 721 (citation omitted).
3. Appellant makes two arguments related to a surveillance
video that was recorded on the evening of the robberies. When
Frazier testified, the State introduced the video, which was recorded
at a Best Western motel where Appellant and Frazier briefly
stopped before the robberies to visit Appellant’s aunt. Frazier
testified that the video reflected what happened there “exactly as
[she] remember[ed] it,” with no “alterations or deletions.” Appellant
objected to the admission of the video recording on the ground that
Frazier was not a proper person to authenticate it. He argued that
the State needed to present the operator of the machine that
recorded the video or a similar person. The trial court overruled
13 Appellant’s objection, concluding that Frazier’s testimony that the
video was a fair and accurate representation of what happened was
sufficient.
The video was then played for the jury. It shows a man wearing
a yellow shirt and white pants and a woman in a black dress get out
of a greenish-blue car, go inside a building, and return a short time
later, with the woman getting in the driver’s side and the man
getting in the passenger’s side of the car. The video does not clearly
show their faces, but Frazier testified that she was the woman and
Appellant was the man.
(a) Appellant first renews his argument from trial that Frazier
was not a proper person to authenticate the video. However, “[u]nder
Georgia law, generally, a videotape is admissible where the operator
of the machine which produced it, or one who personally witnessed
the events recorded, testifies that the videotape accurately
portrayed what the witness saw take place at the time the events
occurred.” Moore v. State, 305 Ga. 251, 255 (824 SE2d 377) (2019)
14 (citation and punctuation omitted; emphasis added).6 Frazier
testified that she personally witnessed the events recorded and that
the video accurately portrayed them. Thus, the trial court did not
abuse its discretion in concluding that she properly authenticated
the video. See id. at 256.
(b) Appellant also argues that his trial counsel should have
objected to Frazier’s identification of him as the man seen on the
video because the jury should have been able to decide this question
for itself. See Dawson v. State, 283 Ga. 315, 320 (658 SE2d 755)
(2008) (“[I]t is improper to allow a witness to testify as to the identity
of a person in a video or photograph when such opinion evidence
tends only to establish a fact which average jurors could decide
thinking for themselves and drawing their own conclusions.”
(citation and punctuation omitted)). The video in this case, however,
does not clearly show the man’s face, so it would have been difficult
for the jurors to identify the man. See id. at 321. By contrast,
6 This standard was developed under Georgia’s former Evidence Code,
which applied at the time of Appellant’s trial in 2011, and it was carried forward into the current Evidence Code. See Moore, 305 Ga. at 255 n.4. 15 Frazier, who was very familiar with Appellant, was a witness to the
events in the video, so her testimony was not based merely on her
opinion of whom she saw on the video, but also on her recollection of
what she experienced in the parking lot. Thus, her identification of
Appellant was admissible, see id. at 319-320, and Appellant’s trial
counsel did not perform deficiently by failing to object to it, see
Mosley, 307 Ga. at 721.
4. Finally, Appellant argues that the lack of a transcript of his
trial’s juror voir dire, opening statements, and closing arguments
violates his due process rights under the United States and Georgia
Constitutions because — he asserts — he cannot supplement the
transcript to support his claims of ineffective assistance of trial
counsel. Under OCGA § 17-8-5 (a), “[t]he arguments of counsel at
trial are not required to be transcribed,” and “[v]oir dire is not
required to be transcribed unless the prosecution is seeking the
death penalty.” Dunlap v. State, 291 Ga. 51, 53 (727 SE2d 468)
(2012). See also State v. Graham, 246 Ga. 341, 341-342 (271 SE2d
627) (1980) (holding that a materially identical predecessor of OCGA
16 § 17-8-5 (a) did not require voir dire to be transcribed in non-death
penalty cases).7
If a defendant wants those parts of the trial transcribed, he
may make a specific request. See, e.g., Allen v. State, 310 Ga. ___,
___ (851 SE2d 541) (2020) (“[I]f a defendant wants a more complete
record of voir dire, he must make a specific request to that effect.”).
If, as in this case, the defendant does not make such a request and
there is no transcript of voir dire, opening statements, or closing
arguments, but the defendant believes that a transcript of those
parts of the trial is necessary for his appeal, he may utilize the
statutory process for supplementing a trial transcript found in
OCGA § 5-6-41 (f) and (g). See Bryant v. State, 309 Ga. App. 649, 650
n.2 (710 SE2d 854) (2011) (noting that voir dire was not transcribed,
but the record was supplemented pursuant to OCGA § 5-6-41 (f) to
include information about dismissed jurors). See also Stiles v. State,
7 OCGA § 17-8-5 (a) says in pertinent part: “On the trial of all felonies
the presiding judge shall have the testimony taken down and, when directed by the judge, the court reporter shall exactly and truly record or take stenographic notes of the testimony and proceedings in the case, except the argument of counsel.” 17 264 Ga. 446, 448 (448 SE2d 172) (1994) (holding that the appellant
failed to demonstrate that a juror did not honestly answer a question
during voir dire because “voir dire was not reported and appellant
did not complete the record pursuant to OCGA § 5-6-41”).
Appellant argues that the lack of a transcript of voir dire,
opening statements, and closing arguments in this case violates his
due process rights because he cannot pursue supplementation under
OCGA § 5-6-41. This argument is premised on his assertion that
because he seeks to raise claims of ineffective assistance of trial
counsel, his trial counsel cannot participate in the creation of a
supplemental transcript. However, this Court has rejected that
premise:
[The] contention that trial counsel could not be expected to assist appellate counsel because “trial counsel cannot be made to assert his own ineffectiveness” is without merit. Trial counsel would have been aiding in the reconstruction of the transcript, not using the transcript to demonstrate any error. . . . Moreover, in many of this Court’s prior decisions on a reconstructed record, a defendant’s trial counsel testified as part of the efforts at reconstruction, whether by affidavit or at a hearing held for that purpose.
18 Bamberg v. State, 308 Ga. 340, 350 n.9 (839 SE2d 640) (2020). Thus,
Appellant’s constitutional claim is meritless.
Judgment affirmed. All the Justices concur.
Decided March 1, 2021.
Transcript; constitutional question. Lowndes Superior Court.
Before Judge Hardy.
Conger & Smith, Gregory D. Smith, for appellant.
Bradfield M. Shealy, District Attorney, Catherine H. Helms,
Michelle T. Harrison, Assistant District Attorneys; Christopher M.
Carr, Attorney General, Patricia B. Attaway Burton, Deputy
Attorney General, Paula K. Smith, Senior Assistant Attorney
General, for appellee.