ENUMERATION OF ERRORS

COMES NOW the Defendant, ADAM LEE JONES, and submits the following enumeration of errors:

A. The trial court erred in denying Defendant’s motion to suppress identification. (R-166-174; T-276-348).

B. The trial court erred in denying Defendant’s motion in limine regarding eyewitness confidence in identification testimony. (R-281-285; T-381-383).

The trial court erred in refusing to give Defendant’s requested charges addressing identification. (R-203-204, 243-246, 286-287; T-847-848).

The trial court erred in admitting prior difficulties between the Defendant and the victim. (R-135-138, 179-189; T-251-275).

There was insufficient evidence in which to convict the Defendant of murder.

There was insufficient evidence in which to convict the Defendant of felony murder.

There was insufficient evidence in which to convict the Defendant of aggravated assault.

There was insufficient evidence in which to convict the Defendant of possession of a firearm during the commission of a felony.

 

Respectfully submitted this _____ day of May, 2000.

Fulton County Public Defender’s Office
Attorneys for Defendant

__________________
J. Jeffrey Lacy
Georgia Bar Number: 431044
Fulton County Public Defender’s Office
137 Peachtree Street, SW
Atlanta, Georgia 30303
(404) 730-5200

CERTIFICATE OF SERVICE

I hereby certify that pursuant to OCGA § 17-1-1, I have on this day served a copy of Appellant’s Enumeration of Errors upon (1) Paul L. Howard, Jr., District Attorney of Fulton County, Atlanta Judicial Circuit, or his agent Assistant District Attorneys Bettieanne C. Hart or Christopher M. Quinn at the District Attorney’s Office located on the 3^rd floor of the Fulton County Courthouse, 136 Pryor Street, S.W., Atlanta, Georgia 30303, and (2) Thurbert Baker, Attorney General for the State of Georgia, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, by first-class mail postage pre-paid.

I.A. STATEMENT OF JURISDICTION

The Supreme Court of Georgia rather than the Court of Appeals of Georgia has general jurisdiction of this case on appeal for the reason that this is a murder case in which a sentence of death could have been imposed. Ga. Const. (1983), Art. 6, Sec. 6, Par. 3 (8).

I.B. STATEMENT OF THE TRIAL PROCEEDINGS

The Defendant, Adam Jones was tried by jury in Fulton County Superior Court on October 27, 28, 29, and 30, 1998. (T-1). The Honorable Stephanie B. Manis, Judge, Superior Court, Atlanta Judicial Circuit, presided over the trial. (T-1). The jury reached its verdict on November 2, 1998, finding Defendant guilty of murder (Count 1), felony murder (Count 3), aggravated assault (Count 4), and possession of a firearm during the commission of a felony (Count 5). (Volume V, p. 2-3; see also Amendment to Volume IV; R-296). Defendant’s felony murder and aggravated assault convictions merged into his conviction for murder. (Volume V, p. 9). Defendant was, therefore, sentenced on Counts 1 and 5. (Volume V, p. 10). He was sentenced to life imprisonment for murder, and a consecutive five year term of imprisonment for his conviction for the firearm offense. (Volume V, p. 11; R-294-295).

Defendant timely filed his motion for new trial on November 16, 1998 (R-299-301), subsequent to the verdict returned by the jury, and this Court’s judgment of conviction and sentence entered on November 2, 1998. (Trial Transcript Volume V, p. 2-3, 10-11; see also Amendment to Volume IV). Defendant then amended his motion for new trial on October 4, 1999, and filed a brief in support. (R-307-401). A hearing was held on Defendant’s motion and amended motion for new trial on November 16, 1999. (R-402). Defendant’s motion for new trial was denied on November 16, 1999. (R-403). Defendant’s counsel consequently filed a notice of appeal on November 17, 1999, attaching thereto an Affidavit of Indigence. (R-1-4). Pursuant to OCGA § 17-1-1 and the rules of the Supreme Court, the undersigned counsel forwarded a copy of Defendant’s notice of appeal to the Fulton County District Attorney’s Office as well as the Attorney General’s Office of Georgia. In a cover letter enclosing Defendant’s notice of appeal to said counsel for the State, the undersigned counsel inquired as to the prosecution’s desire or intention to argue this case orally.

This Court docketed Defendant’s case on May 5, 2000. It is the undersigned counsel’s desire to have oral argument, particularly addressing the issue which this court left open in footnote 6 in Johnson v. State, S99G0759 (February 28, 2000), aff’g, 236 Ga. App. 252, 511 S.E.2d 603 (1999): whether a witness’s level of certainty or confidence in their identification is a factor which a witness should be allowed to testify, and which the jury should be instructed to consider when considering the reliability of a witness’s identification.

Defendant is currently incarcerated at Macon State Prison, P.O. Box 426, Oglethorpe, Georgia 31068. Defendant is EF # 406457 E2-146.

I.C. STATEMENT OF THE FACTS

At approximately 11:00 p.m. on November 19, 1996, Michael Sanders was shot in the head through the right ear by a .38 caliber revolver while he was walking in a dark, heavily wooded dirt trail between Pickfair Avenue and Fair Drive in southwest Atlanta closely adjacent to I-75/85. (T-393, 422-424, 506-507, 548, 580, 598-599, 606, 607-608, 616-617, 621, 626, 629-630, 691; see, State’s Exhibt # 11; Defense Exhibits # 3 through # 8). Sanders was also shot in the chest twice. (T-548-549, 580). One chest wound was a non-fatal graze wound. (T-548-549, 550; see, State’s Exhibits #6 and # 9). The second gunshot wound to the chest did not enter the chest cavity and also was not fatal. (T-549-550, 580, 588-590; see State’s Exhibit # 7, 8, 10).

Nineteen hours after being shot, Michael Sanders died at Grady Memorial Hospital from the gun shot wound to the head. (T-549, 573, 588). Dr. Heninger performed the autopsy on Michael Sanders on November 21, 1996 at 2:00 p.m. (T-570, 573).

Approximately an hour after the shooting, at approximately midnight, Adam Jones, Michael Sanders’ best friend, was apprehended a few blocks away from the crime scene, on Ashwood Avenue, while he was standing at the bus stop. (T-469-472, 480, 489, 632, 707, 791-792, 797, 800-801, 802-803; see State’s Exhibit # 3). Atlanta police officer Tommy Henderson frisked Defendant, handcuffed him, placed Defendant in the back of Henderson’s patrol car, and took Defendant back to Pickfair Avenue. (T-472, 483). Witnesses on Pickfair identified Defendant as being with Sanders moments before he was shot and as being the same man they saw running away from the "cut through" trail after the shots were fired. (T-401-404, 472, 484-485, 495-496, 609-612, 632-633, 640-642, 654-656, 676).

Defendant was later charged with murdering Michael Sanders (also referred hereinafter as "Mike"). Defendant was 18 years old. (T-783). From the first moment when he was questioned by Detective R.E. Chamber with the Atlanta Homicide Unit on November 20, 1996 (T-697-699; see also State’s Exhibit # 35), to being questioned by his father (T-777), to his trial (T-793-794, 802), Defendant denied being with Michael Sanders on the evening of November 19, 1996, and denied shooting and murdering Mike.

Defendant maintained (and still maintains) that someone else shot Mike, namely Corey Walker, who in 1996, was 16 years old. (T-795). Defendant presented evidence at trial that on November 18, 1996, a day before Mike was shot, Mike chased after and shot at Corey Walker while running out of Mike’s girlfriend’s (Tameka Tucker) apartment on Ashwood Avenue. (T-664, 751, 754, 763, 771, 784-788; see photo - State’s Exhibit # 3). Tameka Tucker also testified that Mike told her that he shot at Corey. (T-530-533, 679-681).

Later, Corey Walker went to Defendant’s home (about 2:00 in the early morning hours of Tuesday, November 19, 1996), to retrieve a gun he claimed Defendant instructed him to get. (T-745-747, 750-754, 761-762, 767-769, 770). Defendant was not home when Corey knocked on the door. (T-747). Defendant’s parents answered the door and spoke with Corey. (T-746, 752, 761-763, 769, 770). Defendant’s parents testified at trial that when they refused to give Corey a gun Corey stated, "That’s all right. I know where the nigger live. Me and my brother going to smoke [Mike]." (T-754, 763, 764, 771). Defendant’s parents did not give Corey a gun. (T-754, 764). Defendant’s parents were unaware whether Defendant even had a gun. (T-770). After Corey left, Defendant’s parents searched Defendant’s room for a gun. They did not find one. (T-752, 762, 776).

On November 25, 1996, Defendant’s father contacted the lead investigator on the case: Detective R.E. Chambers. Defendant’s father informed Detective Chambers about Corey Walker coming to his home in the early morning hours of November 19, 1996. Mr. Jones informed the lead detective that Mike shot at Corey and Corey was looking for a gun to kill Mike. Detective Chambers was fortified against anything other than his own conclusion. Disappointingly, instead of pursuing a material lead and obtaining the truth or eliminating this reasonable theory that Corey Walker killed Michael Sanders, the police foreclosed this line of investigation because they were convinced they had the person who killed Mike. (T-755-759, 765-766, 773-774).

Defendant returned home late in the afternoon on November 19, 1996, between 5:00 and 6:00 p.m. (T-747, 764, 776, 777, 788-789). Defendant’s parents informed him about Corey’s visit and told their son that Corey said he was going to "smoke" Mike. (T-748, 764, 776, 789). They asked Defendant what was going on with Mike and Corey. (T-764, 789). Initially Defendant told his parents that he did not know anything about Mike shooting at Corey because he did not want to alarm them. (T-748, 764, 789, 794-795). Then he told them what happened. (T-748, 789). Defendant’s father urged him to stay home and not go around Mike or Corey. (T-764, 776, 789). After taking a shower and ironing some clothes, Defendant hollered upstairs for his sister to lock the door behind him. It was approximately 6:30 p.m.. (T-748, 749, 765, 776. 777, 789).

Defendant testified at trial that after leaving home at 6:35 p.m. on November 19^th (just hours before the shooting), he took a MARTA bus to Underground Atlanta. (T-790, 798). He stayed downtown for a while, then took another MARTA bus to Tameka Tucker and Mike’s apartment at 345 Ashwood Avenue. (T-661, 664, 790, 798-799). He arrived at the apartment at about 10:00 p.m. Tameka answered the door. Mike was not home. Defendant went inside the apartment and stayed about 5 to 10 minutes. Tameka told him Mike went to the store. (T-790). Tameka did not tell Defendant which store Mike went to; however, Adam assumed Mike went to the Shell station located on Metropolitan Parkway (formerly known as Stewart Avenue) because that is where Mike often went. (T-800). Defendant left Tameka’s and walked to the Shell gas station to look for Mike. (T-790). It took Defendant approximately 15 minutes to walk to the Shell station. (T-791, 800). Adam did not take any cut through trails to the store. Instead, he walked the lighted streets — Ashwood, Fair Road, to Metropolitan — to get to the store. (T-791; see Defendant’s Exhibit # 12 — street map). Defendant did not see Mike at the store. He walked back to Ashwood Avenue taking the same route and taking 15 minutes to return. He did not go back to Tameka’s apartment, but waited at the bus stop in front of Tameka’s apartment building to go back home. (T-790-791, 792, 800, 802). He was at the bus stop for about 5 to 10 minutes when a police officer approached him, questioned him, and placed him in a patrol car at 11:59 p.m.. (T-791-792, 800-801, 802-803).

In the course of establishing Defendant’s possible motive for murdering his best friend, Michael Sanders, the State put forward evidence, over defense objection (T-251-274), that Defendant expressed his intent to kill Mike a week before the shooting. (T-723-725). Demarco Woodruff, a friend of Adam and Mike, testified that Defendant told him that he was going to kill Mike. (T-723-725). Demarco responded on direct examination by the prosecutor that he did not take Adam’s threat seriously. (T-724). Demarco testified that Adam and Mike were close friends who spent a good deal of time together. (T-713-714, 728-729). Mike and Adam both played games with guns with each other. (T-714-715). Demarco also testified that Adam and Mike often claimed they were going to kill the other. Demarco did not take Mike or Adam’s threats seriously. (T-723).

Although Defendant admitted during his testimony that he and Mike played games with guns with each other, he denied ever threatening to kill Mike. (T-793).

The State also put forward Tameka Tucker. She was Michael Sander’s girlfriend and the mother of his child. (T-660-661). She was living with Michael Sanders at an apartment on Ashwood in November of 1996. (T-664). According to Tameka, on November 19, 1996, Adam was at the apartment. She awoke at 9:30 p.m. Adam, Michael, and her son were asleep. Later Michael awoke, then Adam. She, Michael and Adam watched a movie on the television. When the movie ended, Adam and Michael left carrying .38s. (T-665-666, 678). According to Tameka, Michael and Adam were walking and said they were going to rob someone at the Shell. (T-666, 667). Michael was wearing a plaid shirt and dark jeans. (T-667). Adam was wearing a red Tommy Hilfiger jacket, jeans, and a white shirt. (T-668).

Later, Adam returned. He was not wearing his red jacket. (T-668). He had the guns. (T-669). She did not notice any blood on Adam’s clothes, body, hands, or arms. (T-679). Tameka asked about Michael. According to Tameka, Adam told her he shot Michael in some woods. (T-668, 673). Tameka started laughing. She didn’t believe Adam because they played so much. (T-668). Adam stood there looking serious, and told Tameka, "Yes, I did. How do you think I got both of the guns?" (T-668, 669). Adam then asked Tameka if she was going to tell anyone. "No," she told him. Adam then told her that if she told anyone he would shoot her. (T-669).

Tameka became scared. She grabbed her baby and went in her bedroom and closed the door behind her. (T-670). When she heard the door close, she looked out the window and saw Adam run down Ashwood with both guns in his hand. (T-670, 672). Tameka telephoned her brother Demarco. (T-672). Demarco instructed her to hang up and call the police. (T-672). That’s what she did. (T-672). Later she went to Pickfair, spoke to police on the scene, told them Adam shot Michael, and gave them a description of Adam. (T-673, 675-676). Tameka testified that she did not identify Adam when he was brought back to Pickfair. (T-676, 677).

II. ENUMERATION OF ERRORSThe trial court erred in denying defendant’s motion to suppress identification.

B. The trial court erred in denying defendant’s motion in limine regarding eyewitness confidence in identification testimony.

The trial court erred in refusing to give defendant’s requested charges addressing identification.

The trial court erred in admitting prior difficulties between the defendant and the victim.

E. There was insufficient evidence in which to convict the defendant of murder.

There was insufficient evidence in which to convict the defendant of felony murder.

There was insufficient evidence in which to convict the defendant of aggravated assault.

H. There was insufficient evidence in which to convict the defendant of possession of a firearm during the commission of a felony.

 

 

III. ARGUMENT SUPPORTED BY CITATIONS OF AUTHORITY

III.A. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO SUPPRESS IDENTIFICATION.

III.A.1. PRESERVATION OF ERROR

Defendant moved to suppress his pre-trial and in-court identification. (R-166-174). The trial court conducted an evidentiary hearing prior to trial on Defendant’s motion. (T-276-340). The trial court heard argument of counsel. (T-341-347). The trial court denied Defendant’s motion. (T-347-348). Defense counsel renewed his objection and motion to suppress identification during the trial. (T-402, 612).

III.A.2. STATEMENT OF TESTIMONY AND ARGUMENT

COMPARING AND DISTINGUISHING TESTIMONY

This case demonstrates the vagaries of identification testimony when it is allowed to be presented with impunity and its calamitous results.

The testimony of the following witnesses is applicable on this issue: Zelda Ware, James Stanley Ware, Don Mosely, Tameka Tucker, Officer Tommy Henderson, Officer Alfred Robinson, and Detective R.E. Chambers.

Zelda Ware testified for the State at the pre-trial motion to suppress identification hearing and during the trial.

Zelda Ware was sitting on her living room couch watching "Good Times" on the television at about 11:00 to 11:30 p.m. with James Ware and Don Mosely when her dog outside started barking. (MTS-ID- T-277; T-385, 386). She turned around, peeped through her closed window blinds, and saw two unfamiliar and unknown black men walking down the street in front of her house. (MTS-ID-T-277-278; T-387, 389, 413, 457, 458-460). One of the men was light skinned and was wearing a red jacket and a black skull cap. (MTS-ID-T-279-280; T-389, 391). She did not see a brand name on the jacket. (T-391). The other man was dark skinned and was wearing a dark-colored jogging suit jacket and a black skull cap, too. (MTS-ID-T-280; T-389).

At the pre-trial hearing Ms. Ware testified that the man wearing the red jacket was about five foot six inches tall. (MTS-ID-T-280). At trial she testified that he was six feet tall, and pointed to Defendant sitting at counsel table; she had no doubt. (T-390, 391).

According to Ms. Ware, the second man was about two inches shorter than the man wearing the red jacket. (T-390). This second man was closer to her house than the man wearing the red jacket. (T-391).

According to Ms. Ware, she saw the men’s faces and the man in the red jacket looked at her. (MTS-ID-T-279; T-392, 393, 403, 434). She watched the two men until they past her house going toward the cut-through trail. (T-392). She could not see the cut-through trail from her house due to the trees and brush. (T-393).

Moments later, Ms. Ware heard gunshots. (T-395, 396). Her dog began to bark again. (MTS-ID-T-282; T-397). She looked out the window and saw a man jogging back up the street in front of her house. She claimed it was the same man she had seen earlier who was wearing the red jacket. She pointed to the Defendant in court as this man she saw. (MTS-ID-T-282, 287; T-397-398). He was carrying his red jacket balled-up in his hand as he ran back up the street. (T-399). She did not see the skull cap on his head. (T-398). Later she testified that she could not remember if her was wearing the skull cap when he ran back up the street after the gunshots. (T-404). He was wearing a white shirt. (T-398).

The police arrived about 20 minutes later. (T-400). Ms. Ware did not want to get involved and stayed in her house. Her brother spoke to the police when they responded. (T-400).

Ms. Ware identified the Defendant to the police as the man she had seen about 40 minutes earlier who was wearing the red jacket and who jogged past her house after the gunshots were fired. (T-401). The Defendant was sitting in the back of a police car alone. The police illuminated Defendant’s face with a flashlight. (MTS-ID-T-283, 291; T-426). Defendant was about two to three feet away from her during this show-up identification. (MTS-ID-T-289-290). She saw a black skull cap in the front seat of the patrol car which she assumed belonged to the shooter. (MTS-ID-T-291; T-404, 426-427). She had no doubt Defendant was the right person. (MTS-ID-T-283; T-401, 403). Defendant was not wearing a red jacket during this show-up encounter. (MTS-ID-T-290).

Ms. Ware was transported to the police station with her brother James and Don Mosely. (MTS-ID-T-292). She identified Defendant at the police station as he sat in a room by himself. (MTS-ID-T-284, 292-293; T-406, 409). The police showed photographs, as well. (MTS-ID-T-293). She picked one person out of the line-up. (MTS-ID-T-294).

After Ms. Ware identified the Defendant at the station, she gave an oral statement. (T-407, 434). A police officer took down Ms. Ware’s statement and presented her with a typed version for her to read and verify as accurate. (T-434, 435, 456). Ms. Ware refused to read her statement (T-435, 456); however, she signed it as an accurate reflection of her oral statement. (T-435).

Defendant was the only person Ms. Ware was asked to identify. (MTS-ID-T-288; T-457).

On cross-examination, defense counsel asked Ms. Ware questions to attempt to reconcile or point out differences in her November 20, 1996 statement and her October 1998, trial testimony. For example, defense counsel pointed out to Ms. Ware that she never told the police on November 20, 1996, that she saw the face of the two men that walked past her house. Ms. Ware insisted that she did, but the officer did not take in down. (T-437). Defense counsel also pointed out that her trial testimony about seeing the jacket rolled up in the man’s hands as he jogged back up the street after the shooting was not in her November 20, 1996, statement either. (T-438-439). Ms. Ware acknowledged that she should have read her statement, but she didn’t. (T-439). Becoming more defensive and entrenched, she stated she knew what she saw. (T-439).

Defense counsel asked Ms. Ware if her statement to the police should be disregarded because it was unreliable. Ms. Ware replied that she did not care. (T-439).

Defense counsel then asked Ms. Ware if she would like to read her statement to refresh her recollection. Ms. Ware refused. (T-439). At the request of defense counsel, a bench conference was conducted where defense counsel expressed his concern whether Ms. Ware could read. (T-439-440).

Defense counsel stated, "I’m afraid she can’t read, and that’s why she doesn’t want to read it herself." (T-440). Counsel requested that someone from the district attorney’s office read Ms. Ware’s statement to her outside the presence of the jury. (T-440). Ms. Ware overheard defense counsel (T-441) and, in front of the jury exclaimed, "I’m leaving, because that is an insult." (T-440). The trial judge warned Ms. Ware to calm down. When Ms. Ware would not, the judge asked the jury to retire to the jury room. (T-440). Ms. Ware continued her outrage, despite the trial judge’s requests to calm down. (T-440-441). The trial judge explained defense counsel’s role. Defense counsel apologized to Ms. Ware and explained his concerns based on earlier experience with a similar situation. (T-441-442). Counsel informed Ms. Ware he approached the bench so he could make his concern known to the judge, thereby protecting his client while also not embarrassing her in front of the jury. (T-441-442). The trial judge tried to explain that the attorneys attempt to be thoughtful to witnesses and the defendant. Ms. Ware would not be appeased and interrupted the judge, wanting to fuss some more like a 10 year-old. The trial judge cut her off, telling Ms. Ware correctly to "hush." (T-442). Then the trial judge informed Ms. Ware, "[W]e are going to continue this trial, with due regard to the interests of the State and Mr. Jones. You have no options here but to remain and testify truthfully." (T-442). The trial judge emphasized to Ms. Ware that defense counsel was not trying to embarrass her. (T-442).

Ms. Ware then told the prosecutor, "Mr. Dixon, he thought I was lying, so he said the reason why . . . afraid she cannot read. Well, I’m afraid I have amnesia." (T-442-443).

The prosecutor informed Ms. Ware, "[T]hat’s not what he said. He was – his concern was – was that – it was not to insult you, that’s what I want you to be clear on. As lawyers, it has happened to all of us where we had a witness who could not read, and we embarrassed them and often embarrassed ourselves. It’s just part of the procedure. It’s nothing against you. Do you understand what I’m saying?"

Ms. Ware replied, "No, sir."

A five-minute recess was allowed in order for the prosecutor to speak with Ms. Ware. (T-443).

The jury returned and the defense counsel’s cross-examination of Ms. Ware continued. Defense counsel referred to Ms. Ware’s preliminary hearing testimony where she testified that the person ran back up the street wearing the red jacket instead of carrying it as she had testified at trial. (T-454). Entrenched, Ms. Ware stated that she did not testify like that. (T-454). Defense counsel showed Ms. Ware the page and lines from the preliminary hearing transcript. Ms. Ware then acknowledged that defense counsel was correct; however, recalcitrantly, Ms. Ware maintained that she remembered that the man had the jacket in his hand. (T-454).

Defense counsel again pointed out that in Ms. Ware’s statement to the police given immediately after the incident, she did not mention anything about seeing a man carrying a red jacket. Ms. Ware testified that she was not aware of that since she did not read her own statement. (T-454-455).

Defense counsel then gave Ms. Ware the statement to look at with the expectation that she could read and it would refresh her memory. (T-455).

Ms. Ware acknowledged that there was nothing in her statement to the police stating that she looked directly in the face of the man when he was in front of her house. She insisted, almost two years later, that it was omitted. (T-456).

Ms. Ware also acknowledged that her November 1996, statement to the police did not include any mention that she saw a man run past her house holding his red jacket. (T-456).

Defendant contends that there was a substantial likelihood of misidentification of Defendant by Zelda Ware for the following reasons: First, the identification procedure was impermissibly suggestive. Ms. Ware’s identification was contaminated and highly influenced by being allowed to see the skull cap in the front seat of the patrol car. This was analogous to the police telling a witness they had picked the right person or telling a witness prior to identifying a suspect in a real or photographic line-up that they believed the suspect was in the line-up and they just needed the witness to verify it.

Second, Ms. Ware’s attitude about the whole affair was haphazard as evidenced by her carelessness in not reading and verifying her statement which she made orally to the police (T-435), and by her resistence to getting involved. (T-431). The prosecutor’s spin was that Ms. Ware’s lack of interest in getting involved increased her credibility. (T-822). This is not the case at all. Ms. Ware’s recalcitrance and blithe attitude demonstrates her own lack of confidence in her own identification. She just would not admit it. She could not admit it because it would have embarrassed her just as she became embarrassed and then irrate when she thought defense counsel was stating or implying that she could not read in front of the jury, although this was not the case at all. (T-439-443). Bringing Ms. Ware into court to testify before a judge and then in front of a jury only increased her recalcitrance to state that the only black person sitting at counsel table was the person she saw on her street two years earlier, whether that was so or not. This would not be so chilling and harmful if other credible and competent witnesses corroborated her testimony. Unfortunately we do not have any reliable and credible eyewitness corroboration in this case, namely from James Ware and Don Mosely, free from an impermissible identification procedure and avoiding the substantial likelihood of irreparable misidentification.

James Stanley Ware also testified for the State at the pre-trial motion to suppress identification hearing and during the trial.

Like his sister Zelda Ware, James Ware was watching "Good Times" on the television at about 11:00 to 11:30 p.m. with Don Mosely when the dog outside started barking. (MTS-ID-T-296-297; T- 490-491). He glanced out the window and saw two unfamiliar and unknown men walking down the street. (T-491, 492, 500, 502). He did not pay too much attention to their faces, their facial complexion, skin color, or their clothing. (MTS-ID-T-304; T-499-500). He "didn’t even look." (T-500).

Mr. Ware was not wearing his glasses; he had not worn them for a while. (MTS-ID-T-297, 304; T-493-494, 497, 499). His vision was blurry, and as a consequence, he did not see them well. (T-497, 512). Mr. Ware did not, or was unable to, determine what the men were wearing or their facial complexion. (T-492). Mr. Ware went back to his television show. (T-492).

Moments later, Mr. Ware heard gunshots. His dog began to bark again. He got up and looked out the window. Still not wearing his required glasses, and with blurry vision, he saw a man jogging from the cut-through trail back up the street. (MTS-ID-T-299, 304; T-493, 500, 501). Despite his admittedly blurry vision because he was not wearing his glasses, Mr. Ware testified that this man jogging back up the street was about six feet tall, weighed about 160 lbs., and was wearing a red Tommy Hilfiger jacket and blue jeans. (MTS-ID-T-298, 304; T-494, 507). In contrast to Zelda Ware’s testimony (T-398, 399, 404), according to James Ware, the man was wearing a black skull cap (T-494), and did not have anything in his hands. (T-494). Rather, his hands were in his pocket. (T-494).

Initially, the police brought someone different to identify on the scene. (MTS-ID-T-305-306; T-508). This first man was not the right man because he was wearing the wrong clothes and his complexion was too dark. (T-508, 509). According to Mr. Ware, he and Don Mosely observed this initial suspect for identification. (T-509).

About 5 or 10 minutes later – about 20 to 25 minutes after hearing the gunshots – the police brought Defendant back to the scene. (MTS-ID-T-306-307, 308; T-509). The police told Mr. Ware they thought they had the right guy this time, and told Mr Ware the person had a black skull cap. (MTS-ID-T-306-307, 308, 509-510). James Ware identified the Defendant while Defendant sat in the back of a patrol car on the scene. An officer shined his flashlight into the patrol car and Mr. Ware was asked to look at him. (MTS-ID-T-300, 301, 306-308; T-495). According to Mr. Ware, the Defendant was not wearing a red Tommy Hilfiger jacket, nor was he wearing a skull cap. (MTS-ID-T-306-307; T-496, 511). However, Mr. Ware knew the police had the skull cap during this identification procedure. (MTS-ID-T-308; T-496, 509-510).

In contrast to his testimony on direct examination, Mr. Ware testified on cross examination at the motion to suppress hearing that the police did not talk to him at the scene. Instead they took him to the police station where he gave a statement. MTS-ID-T-305). But later in his cross-examination he detailed the identification procedure and testified that the police asked "three of them" to identify the man in the patrol car. (MTS-ID-T-306-308).

Despite not wearing his glasses at trial and being handicapped with blurry vision, Mr. Ware identified the Defendant as the same person he saw on November 19, 1996, immediately after hearing gunshots, and the same person he identified in the patrol car. In concluding that under the totality of the circumstances there was no likelihood of irreparable misidentification, the Court of Appeals in Flores noted that the victim got a good look at her assailant as he approached her (even if she may not have gotten a good look at him when he attacked her from behind and during their struggle). Also, the victim’s description of Flores to the police was substantially correct, and her identification of Flores within an hour of the incident was positive. (T-497). He punctuated this by testifying at the motion to suppress identification hearing and at trial that he had no doubt. (MTS-ID-T- 301; T-497, 499).

Mr. Ware was transported to the police station with Don Mosely and a woman he identified as "Kim." (T-514). He identified the Defendant again at the police station. (MTS-ID-T-301, 308, 309; T-513). Mr. Ware looked through a two-way mirror and was asked to identify one person in a room. (MTS-ID-T-309; T-513). That person was Defendant. (T-513). He testified at the motion to suppress identification hearing that he had no doubt of his identification at the police station, either. (MTS-ID-T-301).

Mr. Ware identified Defendant in court as the person he saw the night of November 19, 1996, on Pickfair. (MTS-ID-T-301). And, not surprisingly, he testified he was confident in his identification; he had no doubt. (MTS-ID-T-302).

Mr. Ware testified that he identified the Defendant by the clothes he had on, his skin complexion, i.e., the "brightness of his face," and the black skull cap that the police had showed him. (MTS-ID-T-300, 309; T-511-512). Also, Mr. Ware testified at the motion to suppress hearing that he was sure because he "saw his face features and everything, and I knew it was him." (MTS-ID-T-301). Mr. Ware defined "features" at trial as the man’s shape, his face features and his clothes." (T-512). Yet Mr. Ware acknowledged the generality of his clothes and "features" description. (T-512-513). Contrast James Ware’s general description to Sparks v. State, 185 Ga. App. 225, 227, 363 S.E.2d 631 (1987), where the witness gave a detailed description of the assailant’s unique facial features with special reference to the prominent bumps on his cheeks. This counteracted any impermissible suggestiveness that may have been created by showing the witness a single photograph.

3. Don Mosely also testified for the State at the pre-trial motion to suppress identification hearing and during the trial.

Mr. Mosely was sitting around watching "Good Times" with Zelda Ware, James Ware, and his brother Tony Mosely at about 11:00 p.m. on November 19, 1996, when the dog began to bark outside. (MTS-ID-T-310-311; T-636). Don got up and briefly looked out the window. MTS-ID-T-311; T-637). He saw two unknown and unfamiliar men walking down the street. (MTS-ID-T-311; T-637, 645). In this brief look, Mr. Mosely did not see the men’s faces. (MTS-ID-T-316; T-638). He testified that one of the men was six foot tall, weighed about 150 to 160 lbs., had bright brown skin, and wearing a red Tommy Hilfiger pullover shirt/jacket closed up to the neck, a black skull cap, and blue jeans. (MTS-ID-T-311, 312, 317; T-637, 638, 648-649). The only thing Mr. Mosely noticed about the other man was that he wore dark clothes. (MTS-ID-T-312, 317; T-638, 649). At trial, he added that the man had a darker complexion. (T-638, 650). This man was closer to the house than the one wearing the red pullover shirt. (T-649).

Moments later, Mr. Mosely heard gunshots from the pathway down from the house — the same direction the two men had been walking. (MTS-ID-T-312; T-638-639). He looked out the window again. The light-skinned man he had seen wearing the red pullover came jogging back up the street. (MTS-ID-T-313; T-639). However, the man had taken the red pullover off. He was wearing blue jeans and a white shirt. (MTS-ID-T-313; T-639, 653). At trial, Mr. Mosely added that he was also wearing a black skull cap. (T-639, 653). The man’s hands were at his sides as he jogged back up the street. (T-640, 653). His hands were empty. He was positive. (T-654).

The police brought this same man back to Pickfair about an hour after the police started to look for him. (MTS-ID-T-313; T-640). According to Mr. Mosely, the police stayed at the scene "a pretty long time before they even started looking." (MTS-ID-T-314).

The man was in the back of the police car. (MTS-ID-T-314; T-640). Don Mosely was in the back of another police car with Tameka Tucker, Michael Sanders’ girlfriend. (MTS-ID-T-318, 320; T-640). According to Don, the police shined their lights into the car and asked Tameka Tucker, "Is that him right?" (T-656). Tameka identified the Defendant. (MTS-ID-T-318; T-641, 655). Don was not asked to identify him. According to Mr. Mosely, it was because he was unable to identify by facial features. (MTS-ID-T-314, 318; T-641, 655, 657). However, he testified that he told the police that "based on the height . . . and weight and everything [he] saw, that’s the person [he] saw [running back]." (MTS-ID-T-315). He had no doubt that at the time. (MTS-ID-T-315).

At trial, Don changed his testimony a bit. At trial he stated that the police asked him to identify the man on the scene; however, he couldn’t because all he knew was the man’s complexion and characteristics. (T-641). He didn’t get a good look at the man’s face. He didn’t see the man from the front. He just got a profile. (T-642, 650, 651). According to Don, he did not tell the police that was the same guy. (T-641, 642). He did not say anything to the police about the person that was brought back until he got to the police station. (T-641). Despite any foundation or the inability of making an out-of-court identification, Mr. Mosely was allowed to make an in-court identification of Defendant as the same person he had seen running past the house after he heard the gunshots and the same person he had seen in the back of the police car on the scene later. He was positive. (T-641, 642). Miraculously, Mr. Mosely’s vision and recollection improved over two years.

The police initially brought another man, the wrong man, to the scene to be identified. This man did not fit Mr. Mosely’s description. He had on different clothes and had a different skin color. (MTS-ID-T-315, 317; T-643, 652).

Don Mosely was taken to the police station. He rode in the same patrol car with James Ware and Tameka Tucker. (T-657). He gave a statement. The police brought the Defendant in for identification. (MTS-ID-T-316, 319; T-643). Mosely did not identify the Defendant at the police station. He "didn’t bother to look at him." (MTS-ID-T-316, 319; T-658). The police did not ask him to look in the room and identify Defendant, but Don witnessed Zelda Ware identify the man. (MTS-ID-T-319; T-643). Don was not shown a photo lineup. (MTS-ID-T-319).

According to Don Mosely, his identification was based on the man’s height, skin color, and the fact that he was wearing blue jeans and a white tee shirt. (T-651-652).

4. Tameka Tucker testified for the State at trial. Her testimony is important on this issue because it contradicts Don Mosely’s trial testimony on cross-examination where he stated that Tameka Tucker, while sitting in the back of a partol car with Mr. Mosely, identified the Defendant on the scene. (T-654-656 ).

Ms. Tucker, however, testified on direct examination by the prosecutor that she did not see, nor did she identify the Defendant on the scene. (T-676, 677). Thus, Tameka Tucker’s testimony not only contradicts Don Mosely’s testimony, it also goes to the dependability of Don Mosely’s recollection of events, and casts grave doubt on the confidence of his in-court identification of the Defendant.

Ms. Tucker testified that she was taken to the police station in a patrol car, and that two men were in the car with her. (T-676). She identified the Defendant at the police station. (T-677).

5. Officer Tommy Henderson with the Atlanta Police Department testified for the State at the pre-trial motion to suppress identification hearing and at trial.

After the reported shooting on November 19, 1996 on Pickfair Avenue, Officer Henderson canvassed the area for the suspect described as a black male named Adam Jones, wearing a red jacket, blue jeans, and a black skull cap. (MTS-ID-T-320-322, 324, 325; T-469, 477, 484). After canvassing the area for about 10 to 20 minutes, Officer Henderson saw Defendant standing at a bus stop. (See, State’s Exhibit # 3). Defendant was wearing a white tee shirt and blue jeans. (MTS-ID-T-322, 325; T-470-471, 478-479, 480). Officer Henderson got out of his patrol car and approached the Defendant. (T-479). He noticed a black skull cap in Defendant’s back pant pocket. (MTS-ID-T-322, 325; T-469, 471, 474). Officer Henderson asked the Defendant for identification. Defendant complied. (MTS-ID-T-325; T-482). Officer Henderson frisked Defendant. No weapons were found. Then Officer Henderson handcuffed Defendant and placed him in the back of his patrol car. (MTS-ID-T-322, 326; T-481, 483). Officer Henderson placed the skull cap in the front seat of his patrol car. (MTS-ID-T-326; T-474). Officer Henderson did not search for a red jacket. He never found a red jacket. (MTS-ID-T-326, 327; T-471).

Henderson and Defendant returned to Pickfair for identification. (MTS-ID-T- 322, 326; T-472). According to Officer Henderson, Defendant remained in the back of his patrol car while three people (one female and two males) were brought over to the car by Officer Robinson for identification. (MTS-ID-T-322; T-472, 484-485). According to Officer Henderson, all three positively identified the Defendant. (MTS-ID-T-322). Defendant was the only person in the back of the patrol car during the identifications by these three persons on the scene. (MTS-ID-T-327). During this on-scene identification, the skull cap taken from Defendant’s back pant pocket, was in the front seat with Officer Henderson. (T-475).

Officer Henderson identified Defendant in court as the person he had in the back of his car two years earlier. (MTS-ID-T-323; T-472).

After the Defendant was identified on the scene, Officer Henderson transported Defendant to the police station. Officer Henderson was not present for any identification at the station. (MTS-ID-T-323, 327-328; T-473, 486).

6. Officer Alfred Robinson with the Atlanta Police Department also testified for the State at the motion to suppress identification hearing and at trial.

Officer Robinson was the initial responding officer to the scene at Pickfair Avenue on November 19, 1996. (MTS-ID-T-328-330).

Officer Robinson spoke to three persons on the scene (James Ware, Tameka Tucker, and Zelda Ware). (MTS-ID-T-331; T-607, 608, 609). They gave him a description of the suspect: a black male wearing a red jacket, blue jeans, and a black skull cap who was about six foot tall and light skinned. (MTS-ID-T-331). Robinson gave this description over the radio. (MTS-ID-T-331-332; T-609). In contrast to Officer Henderson’s testimony, this description did not include the name Adam Lee Jones. (MTS-ID-T-337-338).

Officer Henderson detained a black male thought to be the suspect and brought him back to Pickfair. (MTS-ID-T-332, 334; T-609-610). This occurred 20 to 30 minutes after Robinson responded to the scene. (MTS-ID-T-334; T-610, 631). It was about midnight. (T-632). Defendant was not wearing a red jacket. (T-614).

James Ware and Zelda Ware identified Defendant as Defendant sat in the back of Henderson’s patrol car in handcuffs. (MTS-ID-T-333, 339-340; T-611, 612, 632). However, at trial, Officer Robinson changed his testimony at bit. At trial he testified that Zelda Ware and Tameka Tucker identified the Defendant on the scene. (T-611, 612, 613, 630-631).

In contrast to Officer Henderson’s testimony, Officer Robinson maintained that he, not Officer Henderson recovered Defendant’s identification card. (T-633).

Officer Robinson testified that he did not recall whether he told the witnesses prior to their identifications at the car that the police had found a skull cap on the Defendant. (MTS-ID-T-340).

In contrast to James Ware and Don Mosely’s testimony, Defendant was the only person brought back to the scene to be identified. (MTS-ID-T-335, 336).

Officer Robinson identified Defendant in court as the same person Officer Henderson brought back to Pickfair. (MTS-ID-T-334; T-610).

Officer Robinson transported Zelda Ware to the police station. (T-631). Officer Henderson transported Defendant to the police station. (T-633-634). The other witnesses were transported by other officers (T-631); however, at trial Robinson testified that he transported the witnesses, including Zelda Ware to the police station. (T-634). This seems more in line with the testimony of Tameka Tucker (T-676), Don Mosely (T-657), James Ware (T-514), and Zelda Ware (MTS-ID-T-292).

Officer Robinson was not present for any other identification of Defendant that night: November 20, 1996. (MTS-ID-T-334; T-613).

7. Detective R.E. Chambers testified for the State at the trial only. His testimony contradicted the testimony of Officers Henderson and Robinson, Tameka Tucker, Don Mosely, Zelda Ware, and James Stanley Ware concerning the identification conducted at the scene.

According to Detective Chambers, Zelda Ware, Don Mosely, James Ware, and Tameka Tucker identified the Defendant on the scene. (T-693-694, 695). Tameka Tucker testified that she did not identify the Defendant on the scene. She did not see the Defendant on Pickfair. (T-676, 677).

Don Mosely neither positively identified Defendant on the scene nor at the police station, because he did not get a sufficient look at the two men walking down Pickfair prior to the shooting and the man jogging back up Pickfair after hearing gun shots. (MTS-ID-T-316, 319; T-641, 642, 643, 650, 651).

James Stanley Ware’s eyesight was so blurry, his identifications on the scene and at the police station are glaringly suspect, if not unfounded. (T-493-494, 501, 512).

Officer Tommy Henderson’s testimony runs contrary to Detective Chambers’ testimony about on the scene identification, as well. According to Officer Henderson, three people (one female and two males) identified Defendant on the scene. (MTS-ID-T-322; T-472, 484-485).

Officer Alfred Robinson’s testimony also is contrary to Detective Chambers’ testimony about the on-scene identification of Defendant. Robinson testified at the motion to suppress identification hearing that James Ware and Zelda Ware identified Defendant on the scene. (MTS-ID-T-333, 339-340; T-611, 612, 632). However, Robinson testified at trial that Zelda Ware and Tameka Tucker identified the Defendant. (T-611, 612, 613, 630-631).

As to the identification of the Defendant that occurred at the homicide office, Detective Chambers’ testified at trial that the same four people (Zelda Ware, James Stanley Ware, Don Mosely, and Tameka Tucker) also identified the Defendant at the police station. (T-697). This is contrary to the trial testimony of Don Mosely who unequivocally stated that he did not identify the Defendant at the police station. Mosely didn’t even bother to look at the Defendant at the station. (T-316, 319, 643, 658).

In addition, Detective Chambers testified that Adam Jones was the only suspect. (T-710). This runs contradictory to James Ware’s and Don Mosely’s testimony that the police initially brought the wrong person for them to identify on the scene prior to the Defendant being brought to the scene for identification. (J. Ware pre-trial: T-305-306 ; J. Ware trial: T-508-509; Mosely pre-trial: T-315, 317; Mosely trial: T-643, 652).

The only thing consistent as to the show-up identification at the police station, was that the Defendant was placed in a room by himself, and was identified while he sat in this room. (Zelda Ware, MTS-ID-T-284, 292-293; T-406, 409; James Ware, MTS-ID-T-301, 308, 309; T-513; Don Mosely, MTS-ID-T-316, 319; T-643, 658; Tameka Tucker, T-676, 677; Det. Chamber, T-711, 712).

Detective Chambers testified that a photo line-up was not used. (T-712). Zelda Ware testified that a photo line-up was shown to her after viewing Defendant in the room. (MTS-ID-T-293, 294). She was the only witness who testified that the police used a photo line-up. (Don Mosely, MTS-ID-T-319).

The Court reasoned that although the store clerk had the opportunity to view the robber during the robbery, according to her testimony the robber was not facing her but was at her side during the robbery, and she deliberately avoided looking at him. In addition, she was nervous and upset. Her description was couched only in general terms and she was certain the robber was not included in the original, proper photographic showup, despite the presence of an old photograph of defendant. Even after viewing the suggestive single photograph of the defendant the store clerk was only "pretty sure." Id. at 509-510.

McCoy v. State, 190 Ga. App. 258, 378 S.E.2d 888 (1989), is distinguishable from the case sub judice. In McCoy, the defendant was apprehended and taken back to the crime scene about ten minutes after the incident. The police officer informed the victim/eyewitness that they "had a gentleman out in the car and could she come outside to see if it was the perpetrator of the crime, and to identify him." The victim was also asked "is this the one that could have robbed you?" The victim went to the police car and observed the defendant inside. She did not hesitate in her identification of the defendant as the perpetrator. The witness observed that except for the blue jacket, the defendant was wearing the same clothing he had worn during the robbery, including grey shoes.

The in-court identification testimony in the case sub judice was tainted by the suggestive pre-trial identification procedure which created a very substantial likelihood of irreparable misidentification. The issue is not whether the witnesses had a sincere belief that they recognized and identified the correct individual, or were confident in their identification. The issue is whether any unduly suggestive factors entered into the equation and influenced the witnesses to reach an incorrect – albeit sincere – conclusion. The bottom line is whether, under the totality of the circumstances, there is a likelihood of misidentification.

Adam Jones was on trial for murder. He was facing the consequence of living out the rest of his life in prison. Zelda Ware, Don Mosely, and James Ware blithely testified about identification despite bad eyesight, inattention, and lack of opportunity to view the men before the shooting or the man running away after the shooting, darkness, and "a distance [in]sufficient for reasonable acuity." Semple v. State, S99A0551 (September 13, 1999).

To conclude that Defendant attacks the credibility of the identification witnesses herein, and for this Court to side-step this issue by thereby holding that "determinations of witnesses’ credibility, including the accuracy of eyewitness identification are within the jury’s exclusive province," Norris v. State, 258 Ga. 889, 890, 376 S.E.2d 653 (1989), High v. State, 247 Ga. 289, 290-291, 276 S.E.2d 5 (1981), would be an abdication of this Court’s appellate review authority and duty. The Defendant attacks Zelda Ware’s, James Ware’s, and Don Mosely’s identifications, applying the factors set forth in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). The Defendant does not merely attack the witnesses’ credibility. An attack on the impermissible suggestibility of the contaminated identification procedure and the substantial likelihood of misidentification under the prevailing law is inextricably based on the witness’s credibility. This is because, "‘reliability is the linchpin in determining the admissibility of identification testimony’." Lindsey v. State, 182 Ga. App. 10, 14, 354 S.E.2d 650 (1987) (citing, Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)).

Zelda Ware’s, James Stanley Ware’s, and Don Mosely’s undependable pre-trial and in-court identifications contributed to the verdict. Powers v. State, 147 Ga. App. 459, 463, 249 S.E.2d 292 (1978). Given the circumstantial nature of the evidence in this case, and the emphasis in the State’s presentation of the case and closing argument (T-821-823) on the witnesses’ identifications, this court should not consider the improperly admitted pre-trial and in-court identifications to be harmless error. This improperly admitted evidence violated Appellant's fundamental right to due process, his right to a fair trial, and his right to a result that is reliable. It also permitted the State to obtain a conviction with evidence of a lesser weight than would otherwise be necessary in order to prove Defendant guilty beyond a reasonable doubt. See, U.S. Const. Amend. 5, 6, 8, and 14; Ga. Const. (1983) Art. 1, Sec. 1, Par. 1, 2, 7, 11, 12, 14, and 17; and, O.C.G.A. § 16-1-5.

III.B. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION IN LIMINE REGARDING WITNESS CONFIDENCE IN IDENTIFICATION TESTIMONY.

This enumeration of error addresses the issue left open in footnote 6 of Johnson v. State, S99G0759 (February 28, 2000), aff’g 236 Ga. App. 252, 511 S.E.2d 603 (1999): whether a witness’s level of certainty or confidence in her identification is a factor which a witness should be allowed to testify, the State to emphasize, and which the jury should be instructed to consider when considering the reliability of a witness’s identification.

When viewed in connection with the fact that identification testimony is freely admitted against the accused, To the extent that the Supreme Court jurisprudence does protect the defendant, it only does so against mistakes caused by suggestive police practices. It does not offer any protection from the eyewitness whose misidentification was not the result of police conduct. As a result, expert testimony is necessary to assist the jury in intelligently and accurately evaluating the factors that may impact upon the reliability of an eyewitness identification. additional safeguards are needed to ensure that the jury intelligently evaluates eyewitness testimony and reaches an accurate verdict.

Finally, as the Third Circuit has recognized, "[t]o the extent that a mistaken witness may retain great confidence in any inaccurate identification, cross-examination can hardly be seen as an effective way to reveal the weaknesses in a witness’ recollection of an event." United States v. Downing, 753 F.2d 1224, at 1230 n.6 (3^rd Cir. 1985). Scientific studies also show that cross-examination is not effective to dissuade jurors from relying on confidence as the single biggest factor in evaluating identification testimony, as discussed below. See Wells, supra. (citing studies).

The "confidence equals accuracy" argument is particularly prejudicial because it reinforces and exploits juror misconceptions about the witness process. See, e.g., Caisson & Barndollar, The Psychology of Eyewitness Testimony: A Comparison of Experts and Prospective Jurors, 22 J. Applied Psychology 1241 (1992) (over half of prospective jurors believe confident predicts accuracy).

Consequently, Defendant urges this Court to hold that a witness’s level of certainty or confidence in their identification is irrelevant to the accuracy of their identification. This Court should hold that a witness’s level of certainty or confidence in her identification is not a factor which a witness should be allowed to testify, the State to emphasize, and which the jury should be instructed to consider when considering the reliability of a witness’s identification.

III.C. THE TRIAL COURT ERRED IN REFUSING TO GIVE DEFENDANT’S REQUESTED CHARGES ADDRESSING IDENTIFICATION.

Defendant requested the trial court to give two charges on identification different from the standard pattern jury charge on identification which the trial judge opted to use. Defendant’s request to charge on identification were consistent with the theme of his motion in limine on eyewitness confidence in making identifications as discussed previously in Section III.B. of this brief hereinabove.

Defendant’s request to charge number twelve (12) stated:

Identification testimony is an expression of opinion or impression by the witness. In deciding whether or not to believe a witness who identifies the defendant, remember that you must consider not only whether the witness is telling the truth or is lying. You must also consider the possibility of "good faith mistake." In weighing the testimony of an eyewitness, you should remember that there is no proven relationship between a witness’s confidence and a witness’s accuracy. An eyewitness’s certainty about an identification may have many more sources, and does not necessarily bear on the correctness of the identification. Indeed, some believe that an eyewitness’s confidence is among the least significant factors in predicting the accuracy of an identification. The accuracy of an identification is a question for you the jury to decide beyond a reasonable doubt.

(R-243).

Defendant’s request to charge number thirteen (13) stated:

One of the most important issues in this case is the identification of the defendant as the perpetrator of the crime. The Government has the burden of proving identity, beyond a reasonable doubt. You, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict him.. If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant not guilty.

Identification testimony is an expression of belief or impression by the witness. Its value depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later.

In appraising the identification testimony of a witness, you should consider the following:

One, are you convinced that the witness had the capacity and an adequate opportunity to observe the offender?

Whether the witness had an adequate opportunity to observe the offender at the time of the offense will be affected by such matters as how long or short a time was available, how far or close the witness was, how good were lighting conditions, whether the witness had had occasion to see or know the person in the past.

In general, a witness bases any identification he makes on his perception through the use of his senses. Usually the witness identifies an offender by the sense of sight – but this is not necessarily so, and he may use other senses.

In appraising the identification testimony of a witness, you should also ask yourselves: Are you satisfied that the identification made by the witness subsequent to the offense was the product of his own recollection? You may take into account the circumstances under which the identification was made.

If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to him for identification, you should scrutinize the identification with great care.

Thirdly, you may take in account any occasions in which the witness failed to make an identification of defendant, or made an identification that was inconsistent with identification at trial.

Fourth, and lastly, you must consider the credibility of each identification witness in the same way as any other witness, consider whether he is truthful, and consider whether he had the capacity and opportunity to make a reliable observation on the matter covered in his testimony.

I again emphasize that the burden or [sic.] proof on the prosecutor extends to every element of the crime charged, and this specifically includes the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime with which he stands charged. If after examining the testimony, you have a reasonable doubt as to the accuracy of the identification or identification process, you must find the defendant not guilty.

(R-244-246).

The trial court refused to give Defendant’s request to charge numbers twelve and thirteen. (T-805). Instead, the trial court gave the pattern jury instruction on identification. (T-805, 836-838). The trial court instructed the jury that:

Identity is a question of fact to be determined by the jury. It depends upon the credibility of the witness or witnesses offered for this purpose, and you have the right to consider all of the factors previously charged to you regarding credibility of witnesses.

Some but not all of the factors you may consider in assessing reliability of identification are: A, the opportunity of the witness to view the alleged perpetrator at the time of the alleged incident; B, the witness’s degree of attention towards the alleged perpetrator at the time of the alleged incident; C, the level of certainty shown by the witness by his or her identification; D, the possibility of mistaken identities, whether the witness’s identification may have been influenced by factors other than the view the witness claimed to have; E, whether the witness, or prior occasions, did not identify the defendant in this case as the alleged perpetrator.

It is for you to say whether, under the evidence in this case, the testimony of the witnesses, and the facts and the circumstances of the case sufficiently identify this defendant, beyond a reasonable doubt, as the perpetrator of the alleged crime.

It is not necessary that the defendant show that another person committed the alleged offense. It is sufficient, if there are facts and circumstances in this case which would raise a reasonable doubt whether this defendant is, in fact, the person who committed the crime.

If you do not believe the defendant has been sufficiently identified as the person who committed the alleged crime or if you have any reasonable doubt about such, then it would be your duty to acquit the defendant.

The burden of proof rests upon the State to prove, beyond a reasonable doubt, the identity of this defendant as the person who committed the crime or crimes alleged in this bill of indictment.

(T-836-838).

Defendant filed a written reservation of right to object to jury charges prior to trial. (R-203-204, 286-287). Defendant also orally reserved his right to object to jury charges after the trial court charged the jury. (T-847-848).

Defendant’s request to charge numbers 12 and 13 were particularly tailored to Defendant’s sole defense, misidentification.

Daniel, Georgia Criminal Trial Practice, § 24-2, points out that

After the jury has heard all the evidence, it is the trial judge’s duty to instruct or charge the jury on the principles of law which apply to the case.

. . . Jury instructions should be tailored to the indictment and adjusted to the evidence admitted. . . .

The jury instructions from the court must be presented so as to enable the jury to deal with the real issues in the case and properly decide them. It has been held that if the judge undertakes to charge the law on any subject, it is his duty to charge all the law on that subject which is material and applicable to the case on the trial. . . .

Even in the absence of a request to charge, the court should give the jury appropriate instructions on every substantial issue in the case presented by the evidence. Thus, it is error for the court to fail to instruct the jury on the sole defense of a defendant, even in the absence of a request to charge, if the evidence supports such an instruction. . . . [A] trial judge must charge on the controlling issues and the main theories of the defense.

The United States Court of Appeals for the Eleventh Circuit has held that a criminal defendant has the right to have the jury instructed on his theory of defense, separate and apart from instructions given on the element of the charged offense. United States v. Opdahl, 930 F.2d 1530 (11^th Cir. 1991); United States v. Lively, 803 F.2d 1124 (11^th Cir. 1986). A trial court may not refuse to charge the jury on a specific defense theory where the proposed instruction presents a valid defense and where there has been some evidence adduced at trial relevant to that defense. United States v. Middleton, 690 F.2d 820, 826 (11^th Cir. 1982), cert. den. 460 U.S. 1051 (1983). Georgia appellate courts have echoed this general rule from the Eleventh Circuit, and have held that due process and fundamental fairness entitle a defendant to a charge which explains his theory of defense to the jury, especially when that is her sole defense. Tarvestad v. State, 261 Ga. 605, 606, 409 S.E.2d 513 (1991); Hayes v. State, 261 Ga. 439, 405 S.E.2d 660 (1991); Pippins v. State, 224 Ga. 462, 465, 162 S.E.2d 338 (1968).

Defendant asserts that the pattern jury instruction on identification which the trial court gave, without more, was harmful error. The prosecutor pointed out in his closing argument that Don Mosely and James Ware testified that they had no doubt that the Defendant was the man (T-822), thus emphasizing again the witnesses’ perceived confidence in their own identification. The trial court should have given Defendant’s request to charge number 12 and 13 which countered the State’s emphasis on the eyewitnesses’ confidence in their alleged identifications.

The failure to give Defendant’s request to charge numbers 12 and 13 violated Defendant’s rights to due process, his right to receive a fair trial, his right to present a defense, and his right to a have a result that is reliable. It also permitted the State to obtain a conviction with evidence of a lesser weight that would otherwise be necessary in order to prove Defendant guilty beyond a reasonable doubt. As such, it violated Defendant’s rights as guaranteed by the 5^th, 6^th, 8^th, and 14^th Amendments of the United States Constitution, Article 1, Section 1, Paragraphs 1, 2, 7, 11, 12, 14, and 17 of the Georgia Constitution of 1983, and OCGA § 16-1-5. See, Gardner v. Florida, 430 U.S. 349, 357-358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); Beck v. Alabama, 447 U.S. 625, 637-638, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980); United States v. Opdahl, 930 F.2d 1530 (11^th Cir. 1991); United States v. Lively, 803 F.2d 1124 (11^th Cir. 1986); United States v. Middleton, 690 F.2d 820, 826 (11^th Cir. 1982), cert. den. 460 U.S. 1051 (1983); Tarvestad v. State, 261 Ga. 605, 409 S.E.2d 513 (1991); Hayes v. State, 261 Ga. 439, 405 S.E.2d 660 (1991); Lobdell v. State, 256 Ga. 769, 775, 353 S.E.2d 799 (1987); Johnson v. State, 238 Ga. 59, 60-61, 230 S.E.2d 869 (1976); Pippins v. State, 224 Ga. 462, 465, 162 S.E.2d 338 (1968); Dill v. State, 222 Ga. 793, 152 S.E.2d 741 (1966); Smith v. State, 109 Ga. 479, 480(3), 484-485, 35 S.E.2d 59 (1900); Owens v. State, 173 Ga. App. 309, 326 S.E.2d 509 (1985); Dinnan v. State, 173 Ga. App. 191, 195, 325 S.E.2d 851 (1984); Carswell v. State, 171 Ga. App. 455, 320 S.E.2d 249 (1984); Jackson v. State, 154 Ga. App. 867, 270 S.E.2d 76 (1980); Kimbrell v. State, 148 Ga. App. 302, 304-305, 250 S.E.2d 883 (1978); Johnson v. State, 135 Ga. App. 360, 362, 217 S.E.2d 618 (1975).

III.D. THE TRIAL COURT ERRED IN ADMITTING PRIOR DIFFICULTIES BETWEEN THE DEFENDANT AND THE VICTIM.

Defendant, prior to trial, submitted a written motion in limine and memorandum of law in support (R-179-189) which objected to the State introducing three alleged prior difficulties between the Defendant and the victim, Michael Sanders. (R-135-138). The trial court conducted a pre-trial hearing outside the presence of the jury on Defendant’s motion. (T-251-274).

The following is the State’s statement of prior difficulties in its "Exhibit ‘A’" attached to its notice of prior difficulties (R-137):

Between January and March 1995, Defendant pointed a handgun at Michael Sanders and threatened to kill him. Witness: Wayne Arnold, Fulton County Jail."

The State withdrew this alleged prior difficulty. (T-254).

In November, 1996, Defendant indicated that he planned to kill Michael Sanders. Witness: Demarco Woodruff."

(R-137).

TRIAL COURT’S RULING ON ALLEGED PRIOR DIFFICULTY NUMBER 2

The trial court considered argument of counsel and ruled that the State’s alleged prior difficulty number 2 was not admissible to show a prior difficulty; however, the court stated, it may show the nature of the relationship between the Defendant and the victim. (T-272. 273-274).

At trial, Demarco Woodruff testified that sometime in 1995 Mike said he was going to go somewhere and he asked Adam if he could see the .380 pistol. Adam gave it to Mike. Mike ran off with the pistol and did not return. Adam said he was going to kill Mike because he did not give him back his pistol. Demarco did not take Adam’s threat seriously. (T-722).

The State’s alleged prior difficulty number two (2) should have been ruled inadmissible because there was insufficient credible and competent evidence establishing the alleged prior difficulty, and insufficient evidence establishing a sufficient connection between the alleged prior difficulty and the crime charged. The alleged prior difficulty was carelessly offered with a general time frame ("in or around 1995"). Then the witness who presented it to the jury had a general blithe recollection about the time in which it may have occurred. The evidence did not show that the incident occurred. There was absolutely no identifiable and specific non-character relevance of the alleged prior difficulty, i.e., that it tended to prove the Defendant’s motive or intent, or that it established the state of the relationship a year later, or perhaps even more, in November of 1996, between the victim and the Defendant. (See also, T-271). Smith v. State, 267 Ga. 363, 478 S.E.2d 379 (1996); Stewart v. State, 263 Ga. 843, 844-845, 440 S.E.2d 452 (1994); Maxwell v. State, 262 Ga. 73, 75, 414 S.E.2d 470 (1992); Stephens v. State, 261 Ga. 467, 405 S.E.2d 483 (1991). Contra, Fetty v. State, 268 Ga. 365, 369, 489 S.E.2d 813 (1997).

TRIAL COURT’S RULING ON ALLEGED PRIOR DIFFICULTY NUMBER 3

As to alleged prior difficulty number 3 (R-137), the trial court ruled that it was admissible because it was relevant to the issue of motive and it showed the nature of the relationship of the Defendant and the victim. (T-272-275).

State’s alleged prior difficulty number three should have been ruled inadmissible because it was not a threat, and there was insufficient credible and competent evidence to support its admissibility and introduction at trial. (See also, T-271). Smith v. State, 267 Ga. 363, 478 S.E.2d 379 (1996); Stewart v. State, 263 Ga. 843, 844-845, 440 S.E.2d 452 (1994); Maxwell v. State, 262 Ga. 73, 75, 414 S.E.2d 470 (1992); Stephens v. State, 261 Ga. 467, 405 S.E.2d 483 (1991).

Demarco Woodruff testified at trial that sometime in November 1996, he was at the Huddle House on Stewart Avenue with Mike and Adam. While Mike was in the bathroom, Adam told Demarco that he was going to kill Mike through the pathway. As with alleged prior difficulty number two, Demarco did not take this threat seriously. (T-723-725). According to Demarco Woodruff, Adam did not say why he was going to kill Mike. (T-724-725).

In his concurring opinion in Wall, Presiding Justice Fletcher also pointed out that "[e]ven if the evidence of prior difficulties is relevant to prove a material issue in dispute, the court must additionally weigh its probative value against its prejudicial effect before determining admissibility. . . . In balancing the probative value against the prejudicial effect, the trial court may consider factors such as remoteness, the availability of other evidence to prove the disputed issue, strength of the proof of the prior act evidence, and possibility of juror confusion." Wall, supra, at 510-511 (Fletcher, P. J., concurring).

Events that are remote in time have little probative value and should be excluded if they would prejudice the defendant. Carr v. State, 267 Ga. 701, 482 S.E.2d 314 (1997) ("[E]vidence of prior difficulties . . . must have some probative connection with the incident giving rise to the case being tried . . . something which sheds light upon the motives of the parties.").

Defendant contends the trial court committed reversible error in allowing the State to present evidence of alleged prior difficulties between the Defendant and the victim, Michael Sanders. They were not prior difficulties at all, if believed. The admissibility of these alleged prior difficulties is not harmless. They were relied on by the State as an essential piece of the circumstantial puzzle presented and argued to the jury.

The admission of the alleged prior difficulties violated Defendant's right to due process, his right to a fair trial, his right to present a defense, and his right to a result that is reliable. It had no probative value and impermissibly injected Defendant’s character into the trial. OCGA § 24-2-2. It also permitted the State to obtain a conviction with evidence of a lesser weight than would otherwise be necessary in order to prove Defendant guilty beyond a reasonable doubt. OCGA § 16-1-5. As such, it violated Defendant’s rights as guaranteed by the 5th, 6^th, 8^th and 14th Amendments of the United States Constitution, as well as Ga. Const. (1983) Art. 1, Sec. 1, Par. 1, 2, 7, 11, 12, 14, and 17, and OCGA §§ 16-1-5, 24-2-2. See, Gardner v. Florida, 430 U.S. 349, 357-358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); Beck v. Alabama, 447 U.S. 625, 637-638, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980).

III.E. THERE WAS INSUFFICIENT EVIDENCE IN WHICH TO CONVICT THE DEFENDANT OF MURDER.

There was insufficient evidence in which to warrant Adam Lee Jones’ conviction for murder in Count One of the indictment as "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brown v. State, 250 Ga. 862, 864, 302 S.E.2d 347 (1983).

OCGA § 16-1-5 provides:

Every person is presumed innocent until proven guilty. No person shall be convicted of a crime unless each element of such crime is proven beyond a reasonable doubt.

III.F. THERE WAS INSUFFICIENT EVIDENCE IN WHICH TO CONVICT THE DEFENDANT OF FELONY MURDER.

Adopting and incorporating his argument in section III.E. of this brief hereinabove, Defendant asserts that there was insufficient evidence in which to warrant his conviction for felony murder. Examining the evidence in its entirety in a light most favorable to the verdict, no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Barela v. State, 271 Ga. 169, 517 S.E.2d 321 (1999); Brown v. State, 250 Ga. 862, 864, 302 S.E.2d 347 (1983).

"To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." OCGA § 24-4-6. See, Barela v. State, supra; Brown v. State, 250 Ga. 862, 864, 302 S.E.2d 347 (1983).

In this case there is no direct evidence that Adam Jones committed or participated in the shooting of Michael Sanders, or indeed that he was even present when the killing occurred. There is some circumstantial evidence that he had a motive for the killing; that he was present during the killing; and that he fled thereafter. However, aside from this circumstantial evidence of motive, presence, and flight there is no credible and competent evidence tending to identify Adam Jones as a participant in the murder of Michael Sanders, and the evidence is therefore insufficient as a matter of law to sustain Adam Jones' conviction for felony murder. See, Johnson v. State, 269 Ga. 840, 506 S.E.2d 374 (1998); Moore v. State, 255 Ga. 519, 340 S.E.2d 888 (1986); Brown v. State, 250 Ga. 862, 302 S.E.2d 347 (1983). Contra Semple v. State, supra; Barela v. State, supra.

III.G. THERE WAS INSUFFICIENT EVIDENCE IN WHICH TO CONVICT THE DEFENDANT OF AGGRAVATED ASSAULT.

There was insufficient evidence in which to warrant Adam Lee Jones’ conviction for aggravated assault as no rational trier of fact could have found proof of guilt beyond a reasonable doubt when examining the evidence in its entirety in a light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Barela v. State, supra; Brown v. State, 250 Ga. 862, 864, 302 S.E.2d 347 (1983).

The evidence supporting Defendant’s conviction for aggravated assault is fraught with unreliability. Defendant adopts and incorporates his argument in Section III.E. of this brief hereinabove, in the interest of economizing space, to support his argument in this section.

"To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." OCGA § 24-4-6. See, Barela v. State, supra; Brown v. State, 250 Ga. 862, 864, 302 S.E.2d 347 (1983).

In this case there is no direct evidence that Adam Jones committed or participated in the shooting of Michael Sanders, or indeed that he was even present when the shooting occurred. There is some circumstantial evidence that he had a motive for shooting Michael Sanders; that he was present during the shooting; and that he fled thereafter. However, aside from this circumstantial evidence of motive, presence, and flight there is no credible and competent evidence tending to identify Adam Jones as a participant in the shooting or death of Michael Sanders, and the evidence is therefore insufficient as a matter of law to sustain Adam Jones' conviction for aggravated assault. See, Johnson v. State, 269 Ga. 840, 506 S.E.2d 374 (1998); Moore v. State, 255 Ga. 519, 340 S.E.2d 888 (1986); Brown v. State, 250 Ga. 862, 302 S.E.2d 347 (1983); Brazle v. State, 223 Ga. App. 504, 506, 478 S.E.2d 412 (1996). Contra, Barela v. State, supra; Williams v. State, 256 Ga. 460, 349 S.E.2d 695 (1986).

III.H. THERE WAS INSUFFICIENT EVIDENCE IN WHICH TO CONVICT THE DEFENDANT OF POSSESSION OF A FIREARM DURING THE COMMISSION OF A FELONY.

Adopting and incorporating his argument made in section III.E. of this brief hereinabove, Defendant contends that as the evidence was insufficient to support his convictions for murder, felony murder, aggravated assault, it also, therefore, is insufficient to support Defendant’s conviction for possession of a firearm during the commission of a felony. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence was entirely circumstantial and failed to exclude all reasonable hypotheses save that of his guilt. OCGA § 24-4-6. See, Barela v. State, supra. Examining the evidence in its entirety in a light most favorable to the verdict, no rational trier of fact could have found proof of guilty beyond a reasonable doubt. Jackson v. Virginia, supra; Barela v. State, supra.

In this case there is no direct evidence that Adam Jones committed or participated in the shooting of Michael Sanders, or indeed that he was even present when the shooting occurred. There is some circumstantial evidence that he had a motive for shooting Michael Sanders; that he was present during the shooting; and that he fled thereafter. However, aside from this circumstantial evidence of motive, presence, and flight there is no credible and competent evidence tending to identify Adam Jones as a participant in the shooting or death of Michael Sanders, and the evidence is therefore insufficient as a matter of law to sustain Adam Jones' conviction for possession of a firearm during the commission of a felony. See, Johnson v. State, 269 Ga. 840, 506 S.E.2d 374 (1998); Moore v. State, 255 Ga. 519, 340 S.E.2d 888 (1986); Brown v. State, 250 Ga. 862, 302 S.E.2d 347 (1983); Brazle v. State, 223 Ga. App. 504, 506, 478 S.E.2d 412 (1996). Contra, Barela v. State, supra; Williams v. State, 256 Ga. 460, 349 S.E.2d 695 (1986).

This Court should hold:

That the pre-trial identifications were impermissibly suggestive and conducive to irreparable mistaken identification;

That the in-court identifications had no independent origin other than the tainted pre-trial identifications and should not have been allowed by the trial court;

That the witnesses should not have been allowed to testify as to their level of certainty or confidence in their pre-trial and in-court identifications;

That the trial court should not have instructed the jury that they could consider the witnesses’ level of certainty when evaluating the reliability of the witnesses’ identification of the Defendant as the perpetrator;

That the trial court should have given Defendant’s requested jury instructions 12 and 13 on identification; and,

That the trial court committed reversible error in admitting alleged prior difficulties between the Defendant and the victim because they had no identifiable and specific non-character relevance and because their prejudicial effects outweighed their relevance.

Defendant urges this Court to further hold that these errors contributed to the verdict, and as such, were harmful which require reversal of Defendant’s convictions and sentence, and remand for a new trial.

Lastly, Defendant urges this Court to hold that there was insufficient, reliable, and competent evidence to sustain the verdict on each count which Defendant was convicted.

For all the foregoing reasons enumerated above, Defendant prays that the Court set aside his convictions and grant him a new trial.

Respectfully submitted this _____ day of May, 2000.

Fulton County Public Defender’s Office
Attorneys for Defendant

__________________
J. Jeffrey Lacy
Georgia Bar Number: 431044
Fulton County Public Defender’s Office
137 Peachtree Street, SW
Atlanta, Georgia 30303
(404) 730-5200

CERTIFICATE OF SERVICE

I hereby certify that I have on this day served a copy of Appellant’s Brief upon (1) Paul L. Howard, Jr., District Attorney for Fulton County, Atlanta Judicial Circuit, or his agents, Assistant District Attorneys Bettieanne C. Hart or Christopher M. Quinn at the District Attorney’s office located on the 3^rd floor of the Fulton County Courthouse, 136 Pryor Street, S.W., Atlanta, Georgia 30303, and, (2) Thurbert Baker, Attorney General for the State of Georgia, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, via first-class mail, postage prepaid, pursuant to OCGA § 17-1-1.

This _____ day of May, 2000.

An appeal from the Superior Court of Fulton County,

Atlanta Judicial Circuit,

The Honorable Stephanie B. Manis, trial judge

DEFENDANT: ATTORNEY FOR DEFENDANT:

ADAM LEE JONES J. JEFFREY LACY

EF # 406457 E2-146 Georgia Bar Number: 431044