author: MCFADDEN, Judge. DILLARD, Judge,

text:
    A15A2359.
    In the Interest of J. M. L., a child.
    (784 SE2d 869)
   MCFADDEN, Judge.

Lesli Huso, who wishes to adopt three-year-old J. M. L. appeals from the juvenile court’s order appointing the girl’s foster mother, Ava Deverger, as her permanent guardian. See former OCGA § 15-11-30.1. In an earlier appeal in this case, we affirmed an order in which the juvenile court determined that it was in J. M. L.’s best interest to award Deverger permanent guardianship. In the Interest of J. M. L., 330 Ga. App. XXIII (Case No. A15A0315) (January 28, 2015) (unpublished).

In this appeal, Huso asks us to revisit two issues that we resolved against her in the earlier appeal: whether the juvenile court had jurisdiction to make the permanent guardianship ruling, and whether the juvenile court’s ruling met the statutory requirements for the appointment of a permanent guardian. Although we resolved the earlier appeal in this case in an unpublished decision without opinion pursuant to Court of Appeals Rule 36, our Supreme Court has made it clear that such decisions still establish the law of the case. Huso is not entitled to a second try at a more favorable appellate ruling on those issues.

Huso also argues that we should reverse the order on appeal because, instead of conducting a hearing and determining J. M. L.’s best interest after Deverger filed a guardianship petition, the juvenile court held the hearing and made the best interest determination before the guardianship petition was filed. Nevertheless, Huso was notified of and participated in the hearing, and we are not persuaded by her argument that the juvenile court’s failure to conduct a second hearing and make a second best interest determination after the filing of the petition is reversible error.

For these reasons, as detailed more fully below, we affirm the juvenile court’s order appointing Deverger as J. M. L.’s permanent guardian. We deny Deverger’s motions to dismiss this appeal and for sanctions.

1. Facts and procedural posture.

As an initial matter, we note that the appellate record in this case is limited. It is comprised mostly of court filings and orders, and the bulk of the facts in this case are set out in the first order, which we previously affirmed. Although several evidentiary hearings occurred before the juvenile court entered the order that was the subject of Huso’s first appeal, the parties chose not to include transcripts of those hearings in the appellate record. “In accordance with the presumption of the regularity of court proceedings, we must assume in the absence of a transcript that there was sufficient competent evidence to support the [juvenile] court’s findings.” Reed v. Reed, 295 Ga. 574, 578 (2) (761 SE2d 326) (2014) (citation and punctuation omitted).

Keeping these limitations in mind, the record shows that J. M. L. was born on April 17, 2012. At the time of J. M. L.’s birth, her mother was a residential patient in a substance abuse rehabilitation facility and her three older half-siblings (hereinafter, the siblings) were in the temporary legal custody of the Department of Family and Children Services (DFCS) and the physical custody of J. M. L.’s great aunt. Because the mother was making progress on her case plan at the time, DFCS did not seek to have J. M. L. removed from her custody. Eventually, J. M. L. and her mother joined her siblings in the great aunt’s home.

In March 2013, the mother left the great aunt’s home with J. M. L. and was found at a motel about a week later. She had resumed using drugs. At that point, DFCS obtained legal custody of the girl and began proceedings in the juvenile court to have her adjudicated deprived. Initially DFCS sought to place J. M. L. in the physical custody of her great aunt, with her siblings, but the great aunt declined to take her. Consequently, in late March 2013, DFCS placed J. M. L. in foster care with Deverger. At that point, J. M. L. was approximately 11 months old. She has remained in Deverger’s physical custody since that time.

At a hearing in October 2013, a court-appointed guardian ad litem informed the juvenile court that Huso, a Florida resident who had become acquainted with the great aunt, sought to adopt all four children. The juvenile court instructed DFCS to investigate this possibility.

In January 2014, Huso filed a petition in superior court seeking an order confirming the termination of the biological parents’ parental rights to all four children so that she could begin proceedings in Florida to adopt them. In support of her petition, Huso presented the superior court with documents reflecting that the mother of the four children and the biological fathers of J. M. L.’s three siblings had surrendered their parental rights. She also presented evidence that J. M. L.’s biological father was unknown. However, she did not inform the superior court either that DFCS had legal custody of the children or that the children were the subject of a juvenile court proceeding.

In February 2014, Huso moved to intervene in the juvenile court proceeding and petitioned for that court to transfer custody of the four children to her so that she could take action in Florida to adopt them. At that time, Huso made the juvenile court aware of her pending petition in the superior court. After an April 3, 2014 hearing, the juvenile court granted Huso’s motion to intervene and entered a provisional order granting her temporary custody of J. M. L.’s siblings. As to J. M. L., however, the juvenile court scheduled a new hearing because Deverger had not been given notice of the first hearing.

In the meantime, still unaware of the juvenile court proceeding, the superior court entered an order on April 14,2014, terminating the parental rights of the four children’s mother and fathers.

On April 17, 2014, Deverger moved to intervene in the juvenile court proceeding and filed a written objection to Huso’s petition for a change of custody. The juvenile court permitted her to intervene, over Huso’s objection.

On April 25, 2014, the juvenile court began the rescheduled hearing on Huso’s motion for custody of J. M. L. but suspended it after the child’s guardian ad litem could not continue to participate for medical reasons. The juvenile court resumed the hearing on June 27, 2014, with a new guardian ad litem. The juvenile court concluded the hearing on July 1, 2014. Huso participated in the hearing.

At around this time the juvenile court informed the superior court about the juvenile court proceeding, and on June 24, 2014, before the conclusion of the juvenile court hearing, the superior court issued an order setting aside his April 14 order terminating parental rights as to the four children. In the June 24 order, the superior court chided Huso for not notifying him of the juvenile court proceeding, which the superior court believed her counsel was obliged to do. The superior court stated that, consequently, he

was not informed of a fact necessary to enable [him] to make an informed decision. The pendency of another proceeding involving the minor children clearly is such a fact. If counsel for [Huso] had complied with his obligations as aforesaid, [the superior court] would not have entered the proposed order [counsel] presented to the [c]ourt ex parte before reviewing the pleadings and the evidence adduced in that [juvenile court] proceeding. After doing so, the [c]ourt would have determined whether [he] should exercise jurisdiction to terminate parental rights, or allow the [j]uvenile [c]ourt proceedings to proceed. Those proceedings could provide [Huso] the same relief she sought in this ex parte proceeding, termination of the parental rights of the children she wishes to adopt.

(Punctuation omitted.) (Huso asserts in one of her appellate briefs that the superior court subsequently took additional actions, but the appellate record in this case contains no other superior court orders or information about what, if any, further proceedings have occurred in that court since the entry of the June 24, 2014, order setting aside the earlier termination order. Huso cannot carry her burden on appeal by citing in her brief to documents that are not in the record. Brown v. Fokes Properties 2002, 283 Ga. 231, 232 (1) (657 SE2d 820) (2008); Threatt v. Rogers, 269 Ga. App. 402, 404 (1) (604 SE2d 269) (2004).)

On July 27, 2014, the juvenile court entered the order that was the subject of the first appeal in this case (hereinafter, the “first order”). In the first order, the juvenile court held that, even though the mother of J. M. L. surrendered her to Huso for adoption, it was in the girl’s best interest to remain permanently in Deverger’s custody and care. See In the Interest of C. B., 300 Ga. App. 278, 279 (2) (a) (684 SE2d 401) (2009) (“Notwithstanding a valid surrender, a [juvenile] court may find placement with and adoption by [the person designated by the surrendering parent] not to be in the child’s best interest.”) (citation omitted). The juvenile court cited evidence of the bond that had formed between J. M. L. and Deverger and the emotional distress that severing that bond would inflict upon the girl. Accordingly, the juvenile court sustained Deverger’s objection to the proposed change of custody sought by Huso. Instead, in the first order, the juvenile court awarded permanent guardianship of J. M. L. to Deverger upon the condition that Deverger file a petition for permanent guardianship within ten days. After Deverger filed a guardianship petition, Huso filed a response and a notice of appeal from the first order.

Among the arguments Huso made in her appeal from the first order, she challenged the juvenile court’s jurisdiction to award a permanent guardianship to Deverger and she argued that the juvenile court could not have made the statutorily-required findings for such an award. We were not persuaded, and affirmed the first order in an unpublished decision under Court of Appeals Rule 36 on the grounds that “(1) The evidence supports the judgment; (2) No reversible error of law appears, and an opinion would have no precedential value; and (3) The judgment of the court below adequately explains the decision.”

While the appeal of the first order was pending, the juvenile court determined that, should that first order be affirmed, a further order would be required to actually appoint Deverger as J. M. L.’s permanent guardian. Accordingly, upon remittitur, the juvenile court on April 8, 2015, entered the order that is the subject of the instant appeal (hereinafter, the “second order”). In the second order, the juvenile court granted Deverger’s petition for permanent guardianship, ordered that Deverger be appointed J. M. L.’s permanent guardian, and ordered that DFCS be relieved of custody of the child. As in the first order, the juvenile court held in the second order, among other things, that he had jurisdiction over the action and that the appointment of Deverger as a permanent guardian was in J. M. L.’s best interest.

In this appeal, Huso argues that the juvenile court erred in entering the second order for three reasons: because the juvenile court lacked jurisdiction to appoint Deverger as permanent guardian; because the juvenile court could not have made the statutorily-required findings for such an appointment; and because the juvenile court had not met statutory requirements to provide notice and a hearing before appointing Deverger the girl’s permanent guardian. As detailed below, none of these arguments require reversal.

2. Huso’s first enumeration of error.

In her first enumeration of error, Huso challenges the juvenile court’s jurisdiction to enter the permanent guardianship order. As our Supreme Court has made clear, however, juvenile courts have original jurisdiction of proceedings for permanent guardianships under both our former and current Juvenile Code. In the Interest of M. F., 298 Ga. 138, 139-140 (1) & n. 4 (780 SE2d 291) (2015). See former OCGA § 15-11-30.1 (a) (2) (“the juvenile court shall be vested with jurisdiction to appoint a permanent guardian for a child whose custody is the subject of controversy before the court as a result of an adjudication that the child is deprived”).

Moreover, the basis of this enumeration of error is Huso’s assertion that the juvenile court “lacked subject matter jurisdiction or authority to ignore, invalidate, and/or set aside [the mother’s] surrender of her parental rights as to J. M. L. in favor of [Huso].” In the first appeal in this case, we considered and rejected this very assertion, affirming the first order in the face of Huso’s nearly-identical claim that the juvenile court erred in entering the first order because

a [j]uvenile [c]ourt does not have subject matter jurisdiction or authority to ignore, invalidate, and/or set aside a valid surrender of parental rights that had been properly executed by a child’s legal mother placing the child for adoption, so long as the legal mother’s parental rights have not been terminated.

Although our earlier decision was unreported and nonprecedential, see Court of Appeals Rule 36, our Supreme Court has held that such decisions are “still binding on the parties, for they establish the law ofthe case as providedby OCGA § 9-11-60 (h).” MoretonRolleston, Jr., Living Trust v. Kennedy, 277 Ga. 541, 542 (591 SE2d 834) (2004) (citation and punctuation omitted); accord Rooney v. State, 287 Ga. 1, 2 (2) (690 SE2d 804) (2010). Accordingly, Huso is bound by our earlier rejection of her first enumeration of error. See Moreton Rolleston, Jr., Living Trust, supra; see also Smith v. Nasserazad, 247 Ga. App. 457 (1) (544 SE2d 186) (2001) (looking to enumerations of error in appellate record in Rule 36 case to determine what rulings are binding on parties in subsequent appeal). She cannot seek a second appellate review of the issue.

We find no merit in Huso’s argument that the law of the case rule does not apply because her initial appeal from the first order was “premature.” This argument appears to challenge this court’s jurisdiction to decide Huso’s initial appeal. However, a determination that we had such jurisdiction was inherent in our decision to consider the appeal and affirm the juvenile court’s judgment in the first order. See Kilgore v. State, 325 Ga. App. 874 (1) (756 SE2d 9) (2014) (“It is the duty of this court in all instances to inquire into our jurisdiction.”) (citation and punctuation omitted).

3. Huso’s second enumeration of error.

In her second enumeration of error, Huso argues that the “juvenile [c] ourt erred in entering [the second order] because it was impossible for the juvenile [c]ourt to find that ‘termination of parental rights and adoption’ is not in J. M. L.’s best interest in order to satisfy the jurisdictional requirement of OCGA § 15-11-240 (a) (2).” Although Huso bases this argument on Georgia’s new Juvenile Code, the former Juvenile Code actually applies to this case, as noted above. See In the Interest of G. R. B., 330 Ga. App. 693, n. 1 (769 SE2d 119) (2015).

The provision in the new Juvenile Code to which Huso cites, OCGA § 15-11-240, replaced former OCGA § 15-11-30.1 (a) (2) (A) and (B). The former Juvenile Code pertinently provided that “the juvenile court shall be vested with jurisdiction to appoint a permanent guardian for a child whose custody is a subject of controversy before the court as a result of an adjudication that the child is deprived[,]” and set forth the findings that the juvenile court was required to make before entering such an order. Former OCGA § 15-11-30.1 (a) (2) (A). Those requirements included a finding by the juvenile court “that termination of parental rights and adoption . . . is not in the best interest of the child[.]” Former OCGA § 15-11-30.1 (a) (2) (A) (ii). Huso argues that the juvenile court did not make and could not have made this finding.

We are sympathetic to Huso’s observation that some of the facts of this case are at odds with a finding that termination of parental rights and adoption were not in J. M. L.’s best interest, given that the mother had surrendered her rights to the girl and that in both the first and second orders the juvenile court noted that the permanent guardianship was “for the purpose of adoption.” Nevertheless, in the first order the juvenile court held that it had made all of the necessary findings to appoint Deverger as J. M. L.’s permanent guardian required by either the former or new Juvenile Code, and we affirmed the first order in the face of a similar challenge from Huso. As stated above, our earlier affirmance of the first order establishes as the law of the case that the juvenile court was authorized to find that all of the statutory requirements for appointing a permanent guardian were met in this case. See Moreton Rolleston, Jr., Living Trust, 277 Ga. at 542; Smith, 247 Ga. App. at 457 (1).

4. Huso’s third enumeration of error.

In her third enumeration of error, Huso asserts that the

[jjuvenile [cjourt erred in entering [the second order] without first providing notice as required by OCGA § 15-11-243 (a), without holding a hearing on the petition for permanent guardianship to address [Huso’s] objections as required by OCGA § 15-11-243 (b), and without considering Code Section 15-11-240 as required by OCGA § 15-11-243 (b).

As mentioned above, although Huso cites to the new Juvenile Code, the former Juvenile Code applies. The provision of the former Juvenile Code relevant to this claim of error is former OCGA § 15-11-30.1 (a) (2) (E), which pertinently provides:

Notice of a guardianship petition pursuant to this paragraph shall be given in accordance with subsection (c) of Code Section 29-2-17[.] . . . The hearing shall be conducted in accordance with Code Section 29-2-18, to determine the best interest of the child, and in reaching its determination the court shall consider subparagraph (A) of this paragraph [setting forth the required findings for appointing a permanent guardian].

Subsection (c) of OCGA § 29-2-17 requires notice of a petition for permanent guardianship of a minor to be given to specified persons by specified means of service. OCGA § 29-2-18 provides: “Upon the filing of a petition for the appointment of a permanent guardian of a minor and the giving of notice, the court shall hold a hearing and the standard for determination for all matters at issue shall be the best interest of the minor.”

Huso correctly points out that the juvenile court did not follow the order set forth in the above Code sections. This is due to the unusual procedural path taken by this case, whereby the juvenile court determined that Deverger’s permanent guardianship was in J. M. L.’s best interest in the context of a hearing on Huso’s motion for custody of the girl. The above Code provisions contemplate a guardianship petition, followed by notice to certain persons, followed by a hearing at which the juvenile court makes a best interest determination. Here, however, the hearing at which the juvenile court determined that a permanent guardianship was in J. M. L.’s best interest occurred before Deverger filed a guardianship petition and gave Huso notice of that petition.

Decided March 29, 2016.

Hester Outman, James B. Outman, Justin Y. Hester, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Penny L. Hannah, Senior Assistant Attorneys General, James A. Chamberlin, Jr., Assistant Attorney General; Sarah H. Warren, Deputy Solicitor- General; Killian & Boyd, Autumn N. Cocchi; Jason R. Clark; Kathleen W. Wilcox; Frances W. Dyal, for appellee.

Nevertheless, the record shows that a multi-day hearing did occur, that Huso participated in the hearing, that in an order the juvenile court made a best interest determination in which he considered the statutory requirements, that Deverger subsequently filed a guardianship petition on the instruction of the juvenile court, that she served the petition upon Huso’s counsel, and that Huso filed a response to that petition. The record further shows that Huso filed a notice of appeal from the juvenile court’s order a day before a hearing was scheduled to occur in the case. In that appeal, Huso did not challenge the juvenile court’s lack of strict compliance with the timing of the above filings, actions, and proceedings.

Given these circumstances, we are not persuaded by Huso’s argument that the second order must be reversed so that the juvenile court can hold a second hearing and make a second determination about whether the permanent guardianship is in J. M. L.’s best interest. The juvenile court held a hearing and made a determination that it was in J. M. L.’s best interest to appoint Deverger as her permanent guardian, and we affirmed that ruling. A further hearing on the issue would serve no purpose under the particular circumstances of this case.

Judgment affirmed.

Ellington, P. J., concurs. Dillard, J., concurs in judgment only.

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. As a result, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

       Georgia’s former Juvenile Code applies to this case because it involves a juvenile proceeding that was commenced before January 1,2014. See In the Interest of G. R. B., 330 Ga. App. 693, n. 1 (769 SE2d 119) (2015).


source: Caselaw Access Project

author: Doyle, Chief Judge.

license: Public Domain

text:
    A15A1677.
    ALSTON & BIRD LLP v. HATCHER MANAGEMENT HOLDINGS, LLC.
    (785 SE2d 541)
   Doyle, Chief Judge.

Hatcher Management Holdings, LLC (“the Company”) filed suit against Alston & Bird LLP (“the Firm”), asserting legal malpractice and breach of fiduciary duty claims. The Firm filed a notice of nonparty fault pursuant to OCGA § 51-12-33, seeking to apportion damages among the Company and multiple nonparties. The trial court granted the Company’s motion to strike the notice and certified the issue for immediate review. This Court granted the Firm’s application for interlocutory appeal, and for the reasons that follow, we reverse the trial court’s order striking the Firm’s apportionment notice.

In 2000, Maury Hatcher employed the Firm and one of its trust and real estate partners, John Sawyer, to create the Company, which was established to hold the assets, including real estate, of the Hatcher family patriarch as an estate planning mechanism. Maury was the manager of the Company, which was comprised of various Hatcher family members, including Maury and several of his siblings. According to the Company, Maury secretly liquidated and redeemed his interest in the Company, personally valuing his interest, which constituted a breach of his fiduciary duty, and he embezzled a large portion of the Company’s assets. In January 2009, Maury resigned from the Company, but Sawyer and the Firm continued to act at his direction, despite their continued representation of the Company; the Firm did not disclose the conflict of interest to the Company, nor did it inform the Company of Maury’s actions.

In December 2009, the Company sued Maury in Fulton County and, following a trial on damages, obtained a judgment against him in the amount of $4,046,937. In May 2012, the Company filed the instant case against the Firm, asserting claims of legal malpractice and breach of fiduciary duty; the Firm was the only named defendant. The Firm moved for summary judgment, and the trial court denied the motion.

Thereafter, the Firm filed a notice of nonparty fault pursuant to OCGA § 51-12-33, informing the Company that the Firm intended to ask the trier of fact to apportion fault for the Company’s alleged damages among the Firm and several nonparties, including Maury Hatcher, Jerry B. Hatcher, Alan B. Hatcher, and Caldwell & Watson, LLP. In the notice, the Firm alleged that Jerry and Barry Hatcher caused and contributed to the Company’s damages by, inter alia: improperly claiming to be managers when they were not; failing to investigate Maury’s actions after his questionable accounting; failing to provide financial statements when they were managers; delaying taking legal action against Maury to preserve Company assets; failing to take sufficient action to collect the judgment against Maury; and wasting Company money on legal fees, loans, and compensation for themselves without member approval. The Firm alleged that Caldwell & Watson, counsel for the Company, caused and contributed to the Company’s damages by: failing to advise Company members of Jerry and Barry Hatcher’s mismanagement and improper actions, including withholding financial information; delaying filing suit against Maury; and failing to diligently pursue claims and the judgment against Maury. Finally, with regard to Maury, the Firm referred to the various documents in the record alleging his wrongdoing, including embezzlement of Company assets.

The Company moved to strike the Firm’s notice of nonparty fault, arguing that (1) apportionment of damages was available only under subsection (b) of OCGA § 51-12-33, which the Company alleges applies only to cases brought against multiple defendants; and (2) there was no evidence upon which to apportion damages. In a brief order, lacking explanation for its ruling, the trial court struck the Firm’s apportionment notice. This appeal followed.

The Firm argues that the trial court erred by striking its notice of nonparty fault. In response, the Company contends that Georgia’s apportionment statute, OCGA § 51-12-33 (b), clearly and unambiguously limits apportionment of damages to cases “[w]here an action is brought against more than one person. . . .” While this assertion is correct, apportioning fault, not damages, is the issue in this case.

In its entirety, OCGA § 51-12-33 provides:

(a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.
(b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.
(c) In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.
(d) (1) Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.
(2) The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the non-party’s name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.
(e) Nothing in this Code section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly stated in this Code section.
(f) (1) Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties.
(2) Where fault is assessed against nonparties pursuant to this Code section, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action.
(g) Notwithstanding the provisions of this Code section or any other provisions of law which might be construed to the contrary, the plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.

In Zaldivar v. Pritchett, which was decided after the briefing in this case, the Supreme Court

[held] that OCGA § 51-12-33 (c) requires the trier of fact in cases to which the statute applies to “consider the fault of all persons or entities who contributed to the alleged injury or damages,” meaning all persons or entities who have breached a legal duty in tort that is owed with respect to the plaintiff, the breach of which is a proxjmate cause of the injury sustained by the plaintiff. That includes not only the plaintiff [itself] and defendants with liability to the plaintiff, but also every other tortfeasor whose commission of a tort as against the plaintiff was a proximate cause of [its] injury, regardless of whether such tortfeasor would have actual liability in tort to the plaintiff.

Applying the rationale in Zaldivar to this case, we hold that

[t]o the extent that [the Firm] can prove that [the nonparties identified in the apportionment notice] breached a legal duty in tort that it owed [the Company], the breach of which is a proximate cause of the injury that [the Company] sustained, the trier of fact in this case may be permitted under OCGA § 51-12-33 (c) to assign “fault” to [the nonparty].

Given the assertions in this case alleged by the Firm regarding the nonparties’ actions, the trial court erred by striking the Firm’s notice of nonparty fault.

Decided March 1, 2016 —

Reconsideration denied March 30, 2016

Robbins Ross Alloy Belinfante Littlefield, Richard L. Robbins, Jason S. Alloy, Joshua B. Belinfante, Rachel F. Gage, for appellant.

Caldwell, Propst & DeLoach, Harmon W. Caldwell, Jr., Harry W. MacDougald, Jeremy M. Moeser, for appellee.

Judgment reversed.

Phipps, P. J., and Boggs, J., concur.

       Portions of the factual recitations contained herein are taken from the Company’s complaint, the" parties’ briefs, and the trial court’s factual findings and legal conclusions contained in the order denying the Firm’s motion for summary judgment. For purposes of the legal issues raised in this appeal only, we assume they are correct.

       297 Ga. 589 (774 SE2d 688) (2015).

       (Emphasis supplied.) Id. at 600 (1). The holding in Zaldivar, which was a single-defendant case, was not limited to cases involving more than one defendant.

       Id. at 604 (2). See also Walker v. Tensor Machinery Ltd., 298 Ga. 297, 304 (779 SE2d 651) (2015) (holding that a trier of fact is not prohibited “from assigning fault to a nonparty employer that has immunity under the exclusive remedy provisions of the Workers’ Compensation Act” in a negligent failure to warn case filed against a single defendant, which designed and manufactured the machine that allegedly injured the plaintiff); Barnett v. Farmer, 308 Ga. App. 358, 362 (2) (707 SE2d 570) (2011) (physical precedent only) (reversing the trial court’s refusal to instruct the jury to apportion the award of damages to the plaintiff according to the percentage of fault of the single defendant and the plaintiff’s husband, a nonparty).

       See Zaldivar, 297 Ga. at 604 (2); Six Flags Over Ga. II v. Martin, 335 Ga. App. 350, 364-365 (3) (780 SE2d 796) (2015) (“it is a defendant’s burden to establish a rational basis for apportioning fault to a nonparty; but whether the defendant meets that burden given the evidence at trial is an issue that shouldbe left to the jury”); Couch v. Red Roof Inns, 291 Ga. 359, 366 (1) (729 SE2d 378) (2012); Double View Ventures v. Polite, 326 Ga. App. 555, 562 (1) (b) (757 SE2d 172) (2014) (“[T]he [defendants have a burden to establish a rational basis for apportioning fault to a nonparty. Whether the [defendants would have met that burden given the trial evidence presented should have been left for the jury to determine. Accordingly, the trial court erred by taking that issue away from the jury and completely omitting the [nonparty] from the verdict form.”) (citations omitted).


author: Boggs, Judge. MILLER, Presiding Judge, PHIPPS, Presiding Judge,

text:
    A15A1878.
    KING v. THE STATE.
    (784 SE2d 875)
   Boggs, Judge.

Travis King appeals from his convictions for armed robbery, aggravated assault, and two counts of possession of a weapon during the commission of a felony. He asserts that the trial court erred in the admission of evidence, in its charges to the jury, and by improperly commenting on the evidence. He also raises four grounds of ineffective assistance of counsel. For the reasons explained below, we affirm.

The record shows that a customer was at the counter of a convenience store when a man entered the store and said, “[G]et down . . . this is a stickup.” The customer turned around “and when [he] turned the gun hit [him].” Initially thinking that “somebody was teasing [him],” the customer “threw [his] hand up,” kicked the gun up, and said “get that s**t out of my face.” The man cursed at the customer, placed the gun into the customer’s stomach, and forced him to the floor. After going to the floor, the customer could only hear what the gunman said. The gunman then demanded money and instructed the store clerk not to look at him. The clerk complied with the gunman’s demands and called the police after the assailant left.

The robber wore a dark handkerchief tied around his nose and mouth, but “when he was talking it slipped down.” The customer testified that “[i]t slid down just about here (pointing).” At another point in his testimony, he agreed that it slipped down to the chin, but did not explain where on the chin. The customer testified that he got “a good look at him” and informed the police, “if I ever see him or hear his voice again I would recognize him. You don’t forget a person’s voice or face when they put a double barrel in your stomach and cock it.” He also testified that, based on his experience working for a telephone company for 25 years, he hears voices more than the average person. The customer, an avid sportsman, described the gun as “a double barrel sawed-off shotgun,” approximately 19-20 inches long.

The police had no solid leads in their investigation for about a year, until they received a letter from an inmate seeking a $100 reward because he overheard another inmate bragging about robbing the particular store involved. Although the letter did not name King, it contained enough information to enable the police to pinpoint Kang as a suspect. Specifically, the letter explained that the man would be getting out of jail in September and identified “where the man was from.” The inmate never received a reward.

The investigating officer developed a photo array featuring King and five other men and showed it to the customer, who promptly identified King as his assailant. The victim testified that he “was 99 percent sure from the pictures, but [he] wanted to hear his voice because you never forget that voice.” Based on this identification, King was arrested.

A few weeks later, the officer arranged for the customer to listen to King speaking in a different room, and the customer identified King’s voice as that of the gunman. The customer testified, “I didn’t know who the person was____They never let me see him, they just let me hear his voice.” The customer later heard the same voice three times on the telephone. He explained that he learned after the robbery that he and King are “distant relatives,” and that he received collect'phone calls from King. The first time he accepted the call, King asked “what [he] was going to do.” The customer then replied “what do you think I’m going to do.” He did not report these conversations to the district attorney’s office until he was “called in” months later.

The State charged King with armed robbery of the clerk, aggravated assault of the customer, possession of a sawed-off shotgun during the commission of an armed robbery, and possession of a sawed-off shotgun during the commission of an aggravated assault. Defense counsel filed a motion in limine to exclude evidence of the customer’s pretrial photo identification of King on the ground that the photo array was prejudicial. Counsel also sought to prevent any in-court identification on the ground that it would be tainted by the photo array. Following a hearing, the trial court denied the motion.

At trial, the customer identified King as the man who had assaulted him and robbed the store, and the inmate identified King as the man he had overheard bragging about committing the crimes. The inmate also testified about the following details of the crime that he had learned from King: the robbery location, use of a sawed-off shotgun, placing the gun in the man’s stomach, telling the man to get on the floor, and taking around $6,500 in the robbery. The store clerk testified that the robber took $5,200 in cash and $1,500 in checks. On cross-examination, the inmate admitted that he had recently pled guilty to a cocaine charge.

Multiple defense witnesses testified that King’s family hosted a neighborhood back-to-school party the evening that the robbery occurred. The party location was a 30-minute drive from the store that was robbed. The party was attended by 50-100 people and was located in the street “around the houses.” As one neighbor acknowledged, “there was no way to see who was there all of the time.” This neighbor left the party at 9:00 p.m., over an hour before the robbery, which occurred between 10:00 and 10:30 p.m. Another neighbor, who was also related to King and “real good friends” with him, claimed that he would have noticed if King had left the party for an hour, but would not have noticed if he left for five or ten minutes. Another also testified that King was present for the entire party, other than a trip to the store that lasted around five minutes.

King’s sister testified that King was at the party the entire time, but acknowledged that she left the party between 10:00 and 11:00 p.m. Another neighbor testified that King was at the party, but remembered him collecting “money from the people who were there to go to the store and get some more beer and ice.” He testified that King was gone no longer than five or ten minutes.

Finally, King’s mother testified that the party ended between 10:30 and 11:00 p.m. and claimed on direct examination that King was there the entire time because she “wouldn’t let him leave” since he was the co-host. During cross-examination, she admitted that “[h]e left once to go get some ice.” The mother also testified that the customer witness contacted her to ask that she pay money in exchange for him not testifying against her son. She admitted that they never met and that she never contacted the authorities about him attempting to extort money.

The jury found King guilty on all counts. He moved for a new trial, but the trial court denied the motion. This timely appeal followed.

1. King argues that the trial court erred in failing to exclude the customer’s pretrial identification of him based upon the photographic lineup. “Evidentiary rulings are reviewed under an abuse of discretion standard, which... is different from and not as deferential as the clearly erroneous/any evidence standard of review. [Cit.]” Reeves v. State, 294 Ga. 673, 676 (2) (755 SE2d 695) (2014). The Supreme Court of Georgia has characterized the “abuse of discretion” standard as “at least slightly less deferential than the ‘any evidence’ test” and “not quite as deferential as the ‘clearly erroneous’ test.” (Citations and punctuation omitted.) Reed v. State, 291 Ga. 10, 13 (3) (727 SE2d 112) (2012). It also explained that

sometimes the appellate courts find it necessary to use more than one standard of review to evaluate a single trial-court ruling. Thus, in various contexts, we accept factual findings unless they are clearly erroneous and review a trial court’s ultimate decision on the particular issue for abuse of discretion.

(Citations and punctuation omitted.) Id. In this case, the trial court held a hearing on the motion to exclude the identification testimony and simply denied the motion without explanation. We therefore apply an abuse of discretion standard of review. See Green v. State, 291 Ga. 287, 293 (6) (728 SE2d 668) (2012).

(a) The first step of the analysis is to consider whether the lineup was impermissibly suggestive. Green, supra, 291 Ga. at 293 (6). And “[i]n determining whether an identification procedure was fair, the question is not whether the array of photographs used by police could ‘have been more nearly perfect.’ [Cit.]” (Footnote omitted.) Pinkins v. State, 300 Ga. App. 17, 20 (684 SE2d 275) (2009). Here, as the dissent acknowledges, “[t]he men depicted in the array are all the same race and have the same general complexion and facial hair — ” And while there are discernible differences between the quality of King’s picture and the other five pictures in the photo lineup, our courts have “repeatedly held that slight differences in the size, shading, or clarity of photographs used in an identification lineup will not render the lineup impermissibly suggestive.” (Citations and punctuation omitted.) Green, supra, 291 Ga. at 293 (6).

In cases where differences between the defendant’s photograph compared to all of the other photographs in a lineup are used to argue that the trial court erred by admitting an identification, this court frequently has found no abuse of discretion because the trial court was authorized to conclude that the lineup was not impermissibly suggestive. See Redding v. State, 296 Ga. 471, 474 (4) (769 SE2d 67) (2015) (defendant’s photograph “had a plain white background while the other photographs had identical gray backgrounds”); Green, supra, 291 Ga. at 293 (6) (defendant’s photo “more of a closeup shot and has more detail than the other photos”); Pinkins, supra, 300 Ga. App. at 21 (defendant’s “picture showedhim with his head more tilted than any of the other men pictured in the lineup”); Rutland v. State, 296 Ga. App. 471, 474 (2) (675 SE2d 506) (2009) (defendant’s photo less sharp than others in the lineup) Brewerv. State, 219 Ga. App. 16, 20 (6) (463 SE2d 906) (1995) (picture tone of defendant’s photograph “demonstrably lighter than the other five persons”). Therefore, the mere fact that King’s photograph itself is noticeably different from the others does not, without more, render the lineup impermissibly suggestive.

Indeed, a lineup is less likely to be found impermissibly suggestive when there are “physical differences in the photographs themselves (as opposed to the persons pictured in the photographs).” Pinkins, supra, 300 Ga. App. at 20. See also Marshall v. State, 285 Ga. 351, 352 (2) (676 SE2d 201) (2009) (“The fact that defendant’s photograph was the only one depicting a gold necklace did not make the photographic line-up unduly suggestive, ‘especially when there are other individuals in the lineup having roughly the same characteristics and features as the accused.’ [Cit.]”). This is particularly true where there has been no suggestive police conduct when showing the photographic array to the witness. See Pinkins, supra, 300 Ga. App. at 21 (no indication that procedure used in showing the display to the witness was improper); Rutland, supra, 296 Ga. App. at 474 (2) (no suggestion that suspect depicted in one of the six photographs shown); Williams v. State, 264 Ga. App. 115, 117 (1) (589 SE2d 676) (2003) (officer never suggested that defendant was the perpetrator).

In this case, it is undisputed that the lineup was not shown to the customer in an improper way. The detective testified that he did not tell the customer “anything specific” about the lineup and merely asked him to look at it “to see if anyone on this page had committed the crime.” He made no suggestions about which photographs the customer should or should not choose. The customer also testified that no one suggested what photograph he should select and that he selected King based on his memory. For all of the above-stated reasons, the trial court was authorized to conclude that the photograph lineup and concomitant procedures were not impermissibly suggestive.

(b) While it is not necessary to conduct the second step of the analysis, I believe that the trial court was also authorized to conclude from the evidence before it that there was no substantial likelihood of irreparable misidentification.

With regard to the customer’s opportunity to view the robber at the time of the crime, he was adamant from his initial interview with the police that he got “a good look at him” and that “if [he] ever see[s] him or hear[s] his voice again [he] would recognize him. You don’t forget a person’s voice or face when they put a double barrel in your stomach and cock it.” The customer was standing close enough to the robber for him to put the gun into his stomach. While he testified that the handkerchief over the robber’s face did not slip down all the way during the robbery, he also explained “[i]t slid down just about here (pointing).” At one point, the customer agreed that it slipped down to the chin, but did not explain where on the chin. The trial court, rather than this court, had the benefit of seeing where the witness pointed and to evaluate his opportunity to view the robber’s face.

I disagree with the dissent’s view that the customer’s “attention could not have been focused solely on the robber” because he was also able to describe the weapon. That an experienced hunter was able to describe the weapon does not exclude the possibility that at times his attention was focused solely upon the robber’s face. And the customer’s lack of eloquence in describing the robber’s facial features should not render his testimony that he would never forget the robber’s face meaningless. “Experience teaches... that many persons may lack the ability to articulate a detailed description of a person they have seen and yet can still identify him on sight.” Israel v. Odom, 521 F2d 1370, 1375 (I) (C) (7th Cir. 1975). And we have previously concluded that no substantial likelihood of misidentification existed in a case in which the victim could not describe the perpetrator to the police but also testified “that he would recognize him if he saw him.” Garlington v. State, 268 Ga. App. 264, 265 (601 SE2d 793) (2004). The customer’s statement that he would never forget the robber’s face also shows a great degree of attention.

The customer testified that he was 99 percent certain after viewing the photographic lineup and that he told the police “if I ever hear his voice I will be absolutely 100 percent sure. ... I wanted to hear his voice because you never forget that voice.” A couple of weeks later, the police asked him to come and listen to a person’s voice, and the customer identified it as the robber’s voice. He testified that he “didn’t know who the person was____They never let me see him, they just let me hear his voice.” The detective testified that the customer never had any hesitation before identifying King’s photograph and that he was also able to identify King’s voice. While the lineup occurred one year after the robbery, this court has previously found no substantial likelihood of misidentification in cases involving significant lapses of time between the crime and the identification. See Bonner v. State, 278 Ga. App. 855, 856-857 (2) (630 SE2d 127) (2006) (three months); Qadir v. State, 235 Ga. App. 884, 885 (2) (510 SE2d 362) (1998) (two months); Cummings v. State, 233 Ga. App. 806, 808-809 (4) (505 SE2d 73) (1998) (two years); Crumbley v. State, 189 Ga. App. 384, 385 (1) (375 SE2d 482) (1988) (five months).

Finally, we are not persuaded by the two cases relied upon by the dissent to support its view that the trial court abused its discretion by failing to conclude that there was a substantial likelihood of irreparable misidentification. See Sims v. State, 244 Ga. App. 823 (537 SE2d 133) (2000) (physical precedent only); Banks v. State, 216 Ga. App. 326 (454 SE2d 784) (1995). Both of these cases involved the more problematic showup identification. In one, the witness was told by police that they had enough information to arrest the defendant after she gave a “tepid identification” following a showup identification. Sims, supra, 244 Ga. App. at 826 (1). They later asked her to identify in a photographic lineup the man she had seen during the crime and during the showup. Id. In Banks, supra, the defendant was seated in a patrol car when the witness was asked to identify the perpetrator, the victim failed to describe the suspect as having a beard before the showup, and explained this discrepancy by stating that he “could not see too well” and had not paid too much attention to the person’s face. Banks, supra, 216 Ga. App. at 329 (3).

2. King claims that the trial court erred by admitting the customer’s in-court identification of him because it was tainted by the allegedly suggestive lineup. This claim of error is rendered moot based upon our holding in Division 1.

3. King contends that the trial court erred in giving a jury instruction on a method of committing aggravated assault that was not alleged in the indictment. The record shows that the indictment alleged one of three alternative methods of committing aggravated assault. See former OCGA § 16-5-21 (a) (2001). Specifically, the indictment alleged that King “did unlawfully make an assault upon the person of [the customer] with a sawed off shotgun, a deadly weapon, by pointing said shotgun at the face and stomach of said [customer], placing said [customer] in reasonable apprehension of immediately receiving a violent injury.”

Relevant portions of the trial court’s charge to the jury include:

He is charged with four counts. He is charged with armed robbery, aggravated assault, possession of a sawed-off shotgun during the commission of an armed robbery, and possession of a sawed-off shotgun during the commission of an aggravated assault.
The burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crimes charged beyond a reasonable doubt.
Now, he is also charged with aggravated assault. And... in that connection I’m going to charge you the Official Code of Georgia, Title 16-8-41, which reads in part: a person commits the offense of aggravated assault when that person assaults another person with the intent to murder, rape or rob; or with a deadly weapon; or with an object, device, or instrument which when used offensively against a person is likely to or actually does result in serious bodily injury.
To constitute an assault [,] actual injury to the other person need not be shown. It is only necessary that the evidence show beyond a reasonable doubt an intention to commit injury on another person, coupled with the apparent ability to commit that injury, or that the other person was intentionally placed in reasonable apprehension of immediately receiving a violent injury from the defendant.
In that connection I charge you that under Georgia law a firearm, or in this instance if you believe a sawed-off shotgun, is a deadly weapon.
[I]f after considering the testimony and evidence presented [to] you, together with the charge of the Court, you should find and believe beyond a reasonable doubt that this defendant in Upson County did on or about the date alleged in this indictment commit the offense of aggravated assault, as I have defined that for you, then you would be authorized to find the defendant guilty; and in that event the form of the verdict would be: We the jury, find the defendant guilty of... aggravated assault.
Now jurors, you’re going to have this indictment form out with you .... [D]on’t begin your deliberations until I’ve sent to you the indictment, the various pieces of evidence that have been submitted, as well as some paper to complete the other three verdicts on.

It is well established that “[a] criminal defendant’s right to due process may be endangered when, as here, an indictment charges the defendant with committing a crime in a specific manner and the trial court’s jury instruction defines the crime as an act which may be committed in a manner other than the manner alleged in the indictment. [Cits.]” Harwell v. State, 270 Ga. 765, 766 (1) (512 SE2d 892) (1999). A jury instruction deviating from the indictment will violate due process if “there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment. [Cit.]” (Emphasis supplied.) Id. “And in determining whether a charge contained error, ‘jury instructions must be read and considered as a whole.’ ” (Citations and footnote omitted.) Holman v. State, 329 Ga. App. 393, 400-401 (2) (b) (ii) (765 SE2d 614) (2014).

While evidence was presented in this case to support a conviction on an unalleged manner of committing the crime (assault with intent to rob), the jury was instructed that the State was “required to prove every material allegation of the indictment and every essential element of the crimes charged beyond a reasonable doubt.” Additionally, the trial court read the indictment to the jury at the beginning of the trial and also sent it out with them during their deliberations. “Taking the charge as a whole, we conclude that a jury of average intelligence would not have been confused by the charge, and that the trial court’s charge properly set forth the basis on which the jury was authorized to convict [King] on the count of [aggravated assault].” (Citations, punctuation and footnote omitted.) Clemens v. State, 318 Ga. App. 16, 20 (2) (733 SE2d 67) (2012). See also Holman, supra, 329 Ga. App. at 400 (2) (b) (ii) (defect in charge “cured by the jury being provided with the indictment” and the instruction “that the State must prove beyond a reasonable doubt all material allegations in the indictment and all essential elements of the crimes charged”); Boatright v. State, 308 Ga. App. 266, 272-273 (1) (e) (707 SE2d 158) (2011) (same).

4. King asserts that the trial court improperly commented on the evidence in violation of OCGA § 17-8-57. During trial, the following colloquy took place between the trial court, the prosecutor, and the inmate who testified that King bragged about robbing the convenience store:

[THE STATE]: Okay. Now, on or about August of 2002, okay, did you have an occasion to hear a conversation that Mr. King was having?
[WITNESS]: Yes, sir.
[THE STATE]: And do you see Mr. Travis King in this courtroom?
[WITNESS]: Yes, sir.
[THE STATE]: Can you identify him for me please, sir?
[WITNESS]: (Pointing.)
[THE STATE]: Let the record reflect he’s identified the defendant.
[THE COURT]: So noted.

Former OCGA § 17-8-57, applicable to King’s 2003 trial, provided in part: “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” Here, however, the trial court’s two-word response to the prosecutor’s request did not express or intimate an opinion as to what had or had not been proved. As King concedes, the witness identified King as the person who “confessed to him while he was incarcerated in the prison system,” and the trial court used the customary language to let the record reflect that he did so. See Ford v. State, 298 Ga. 560, 564 (5) (783 SE2d 906) (2016) (where ballistics expert testified that bullets retrieved from decedents’ bodies were fired from a .40 caliber gun, trial court’s statement that “there is evidence that the gun that shot the bullets that killed these people were .40 caliber,” was not an opinion about the veracity of the evidence itself); see also Lobdell v. State, 256 Ga. 769, 774 (8) (353 SE2d 799) (1987) (finding trial court’s questions to witness clarifying her identification of defendant after she testified merely that he was “present in court” were not improper). This enumeration is therefore without merit.

5. King argues that the trial court erred in giving an Allen , charge using language disapproved by the Supreme Court of Georgia. In Burchette v. State, 278 Ga. 1 (596 SE2d 162) (2004), the Supreme Court of Georgia held “that the statement that the case ‘must be decided by some jury’ is inaccurate,” and should no longer be used in the Allen charge. Id. at 2-3. But King was tried in 2003, a year before the decision in Burchette,

which is prospective in its application, and therefore does not control here. The question remains, however, whether the instruction given in this case is so coercive as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.

(Citation and punctuation omitted.) Widner v. State, 280 Ga. 675, 677-678 (3) (631 SE2d 675) (2006).

The record reveals that the jury was charged and then began deliberations at 2:56 p.m. The jury returned to the courtroom at 4:55 p.m., and the court asked the foreperson, “I am certainly aware that it is now right at 5:00 o’clock [sic], and I want to do whatever this jury wants to do. First I want to know do you want to stay awhile longer tonight? Or do you want to come back tomorrow?” The foreperson replied, “I would rather stay longer tonight, Your Honor, not come back tomorrow.” But when the court asked if the jury was making some progress, the foreperson said, “No, sir,” and informed the court that the vote was “[ejleven, one.” When the court again asked the foreperson if it “would be good ... to stay awhile longer tonight,” the foreperson responded “I don’t think we’ll reach a decision tonight.” The court then dismissed the jury for the evening and announced that the court would reconvene at 8:30 the next morning. Before the jury began to deliberate the next morning, the court found it appropriate to instruct the jury as follows, in light of the foreperson’s statement the day before that the vote was “[ejleven, one,” and that they had been considering this case for a considerable time:

It is the law that a unanimous verdict is required. And while this verdict must be the conclusion of each juror and not a mere acquiescence of jurors in order to reach an agreement, it is still necessary for all of the jurors to examine the issues and questions submitted to them with candor and fairness and with proper regard for and in deference to the opinion of each other. A proper regard for judgment of others will greatly aid us in forming our own judgment.
Now, this case has — must be decided by some jury selected in the same manner that this jury was selected. And there is no reason to think that a jury better qualified than you could ever be chosen.
Each juror must listen to the arguments of the others with a disposition to be convinced. If the members of the jury differ in their view of the evidence the difference of opinion should cause them all to scrutinize the evidence more closely and to reexamine the grounds of your opinions.
Your duty is to decide this issue which has been submitted to you, if you can conscientiously do so. In conferring you should lay aside all mere pride or opinion and bear in mind that the jury room is no place for taking up and maintaining in a spirit of controversy either side of the cause.
You should ever bear in mind that as jurors you are not to be advocates for either side. The aim to keep in view is the truth as it appears from the evidence, and only from the evidence that took place in this case, and to examine that in light of the instructions and the law that I have given you.
At this time, Madam Foreperson, and jurors, I’m going to ask you to go back to the jury room and continue your deliberations. You may retire.

(Emphasis supplied.) Fifteen minutes after the jury returned to deliberate after the overnight break, the foreperson announced that the jury had reached a verdict. And following the verdict, the jury was polled, and each juror affirmed the verdict reached.

Just as in Burchette, supra, “because the ‘must-be-decided’ language constituted but one small portion of an otherwise balanced and fair Allen charge, it did not render the charge impermissibly coercive.” (Citations and footnote omitted.) 278 Ga. at 3. The court

cautioned the jurors that the verdict was not to be mere acquiescence of the jurors in order to reach an agreement, that any difference of opinion should cause the jurors to scrutinize the evidence more closely, and that the aim was to keep the truth in view as it appeared from the evidence, considered in light of the court’s instructions . . . the judge, though firm in admonishing the importance of juries making verdicts, was careful not to intimate or express any opinion as to the propriety of any particular verdict, nor did he make any suggestion tending to coerce any particular group of jurors to agree with the others.

(Citations and punctuation omitted.) Scott v. State, 281 Ga. App. 106, 111 (3) (635 SE2d 582) (2006).

King argues that proof of the coercive nature of the court’s instruction is shown by the fact that the jury returned a verdict 15 minutes after being given the charge. In Lowery v. State, 282 Ga. 68 (646 SE2d 67) (2007), the Supreme Court of Georgia determined that as a matter of law, similar inaccurate language in an Allen charge did not make the charge coercive because it was “but one small portion of an otherwise balanced and fair Allen charge. [Cit.]”Id. at71-72 (4) (a). The court then declined to address “appellant’s effort to establish coercion by comparing the length of jury deliberations before and after the Allen charge was given.” Id. at 72 (4) (a). The court held that the

[additional factors mentioned in Burchette — the length of jury deliberations before and after the Allen charge and the jurors’ reaffirmation of their verdict when polled — do not render a non-coercive charge coercive. Rather, these factors play an important role in determining coerciveness when there is a possibility the charge could be coercive, i.e., when it has not been determined as a matter of law that the charge is not coercive.

Id. We have made such a determination here. Even if this case had presented the possibility that the Allen charge was coercive, we have held in a case with no evidence of the length of deliberations before and after the Allen charge, that there was no showing of coercion where, as here, the jury was polled following the verdict and each juror affirmed his or her verdict. Drogan v. State, 272 Ga. App. 645, 648 (2) (613 SE2d 195) (2005).

Under these circumstances, the Allen charge was not coercive and therefore does not provide a basis for reversal.

6. King contends that he received ineffective assistance of counsel based upon his trial attorney’s (a) failure to obtain and present expert testimony on the issue of eyewitness identification; (b) request of a jury charge that included consideration of a witness’s level of certainty; (c) failure to object or move to exclude evidence of the pretrial voice identification by the customer; and (d) failure to move to exclude cumulative and bolstering testimony by a police officer. In ruling on a claim of ineffective assistance,

[ujnder the two-part test established in Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), [King] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.

(Citations and punctuation omitted.) Harrison v. State, 313 Ga. App. 861, 865 (3) (722 SE2d 774) (2012).

As a general rule, reasonable trial tactics and strategies do not amount to ineffective assistance of counsel. The decisions on which witnesses to call and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his or her client. Whether an attorney’s trial tactics were reasonable is a question of law, not fact. When assessing the reasonableness of counsel’s actions, a court must evaluate counsel’s performance from his or her perspective at the time of trial. This Court reviews a trial court’s ruling on an ineffective assistance claim on appeal by accepting the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. [Cits.]

Hughley v. State, 330 Ga. App. 786, 791 (4) (769 SE2d 537) (2015).

When reviewing a claim that trial counsel’s performance was deficient, this Court applies a strong presumption that counsel’s performance falls within the wide range of reasonable professional assistance. This presumption is particularly difficult to overcome where, as here, trial counsel is not available to testify.

(Citations and punctuation omitted.) Jones v. State, 296 Ga. 561, 567 (4) (769 SE2d 307) (2015). That trial counsel is unavailable due to her untimely death following the trial “does not relieve [King] of his heavy burden of proving ineffective assistance [of counsel].” (Citation and punctuation omitted.) Hicks v. State, 295 Ga. 268, 276 (3) (b), n. 7 (759 SE2d 509) (2014).

(a) We find no merit in King’s claim that trial counsel was ineffective for failing to present an expert witness on eyewitness identification. As the Supreme Court recognized in Glass v. State, 289 Ga. 542 (712 SE2d 851) (2011),

[t]he holding in Johnson v. State, 272 Ga. 254 (526 SE2d 549) (2000), concerning testimony of an expert in eyewitness identification does not stand for the proposition that defense counsel is required to call an expert witness at trial where one of the primary issues involved is eyewitness identification of the defendant, let alone the proposition that the failure to call such an expert witness amounts to ineffective assistance.

(Citations and punctuation omitted; emphasis in original.) Id. at 549 (6) (d). Here, we must presume that trial counsel made a strategic decision not to call an expert witness, and “trial tactics and strategy, however mistaken they may appear with hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Citation and punctuation omitted.) Villegas v. State, 334 Ga. App. 108, 111 (2) (778 SE2d 363) (2015).

This court has previously recognized valid strategic reasons for deciding not to present such an expert. In Breland v. State, 287 Ga. App. 83 (651 SE2d 439) (2007), “trial counsel testified she chose not to pursue evidence of an expert in eyewitness identification because she feared that doing so would have prompted the state to do the same, which she believed ultimately would have harmed [the] defense.” Id. at 88 (3). We concluded that “[t]rial counsel’s tactical decision that the risks of introducing such expert evidence outweighed its potential benefits did not constitute deficient performance.” Id. See also Winfield v. State, 278 Ga. App. 618, 620-621 (2) (629 SE2d 548) (2006) (trial counsel’s strategic decision not to hire expert to testify about unreliability of eyewitness identifications based upon photographic lineups did not amount to ineffective assistance). Accordingly, we cannot conclude that trial counsel’s decision not to present expert testimony was so patently unreasonable that no reasonable attorney would have made a similar decision.

(b) King contends that trial counsel erred by requesting a jury charge that advised the jury to consider a witness’s level of certainty. At the time this case was tried in 2003, the Supreme Court’s decision in Brodes v. State, 279 Ga. 435 (614 SE2d 766) (2005) (instructing trial courts to refrain from charging on a witness’s level of certainty), had not yet been decided. Id. at 443. “There is no general duty on the part of defense counsel to anticipate changes in the law. . . .” (Citations, punctuation and footnote omitted.) Rickman v. State, 277 Ga. 277, 280 (2) (587 SE2d 596) (2003). Although the Georgia courts may sometimes apply a new decision to cases already tried,

that does not alter the long-standing precedent that, when addressing a claim of ineffectiveness of counsel, the reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial. Thus, a new decision does not apply in a manner that would require counsel to argue beyond existing precedent and anticipate the substance of the opinion before it was issued.

(Citation and punctuation omitted.) Williams v. Rudolph, 298 Ga. 86, 89 (777 SE2d 472) (2015). After examining trial counsel’s perspective at the time of trial, including the fact that the requested charge was then a pattern jury instruction, we cannot conclude that trial counsel was ineffective for failing to anticipate the Supreme Court’s decision in Brodes, supra. And, even if we were to assume that trial counsel performed deficiently by requesting the pattern jury charge, King cannot show that he was prejudiced by the request given other evidence linking him to the crime. See Rabie v. State, 294 Ga. App. 187, 194 (5) (b) (668 SE2d 833) (2008) (ineffective assistance claim based upon requesting level of certainty charge failed where “there was evidence in addition to [eyewitness] identification which linked [defendant] to the robbery”); Peeler v. State, 286 Ga. App. 400, 404 (2) (b) (649 SE2d 775) (2007) (ineffective assistance of counsel claim failed where evidence in addition to eyewitness identification linked defendant to crime). In this case, King’s jailhouse admissions also linked him to the crimes.

(c) Kang argues that trial counsel was ineffective because she did not object or move to exclude evidence of the pretrial voice identification by the customer. Again, we must presume that trial counsel made a strategic decision not to move to exclude this evidence or object to its admission at trial. Thomas v. State, 273 Ga. App. 357, 362 (4) (b) (615 SE2d 196) (2005) (presuming trial counsel made strategic decision not to file a motion to suppress identification based upon suggestive photo array).

And we cannot conclude that such a strategic decision would be patently unreasonable. “Although one-on-one show-ups have been sharply criticized, and are inherently suggestive, the identification need not be excluded as long as under all the circumstances the identification was reliable notwithstanding any suggestive procedure.” Jefferson v. State, 206 Ga. App. 544, 546 (2) (425 SE2d 915) (1992). The customer identified King’s voice after previously identifying him in a photo array that we have concluded was not impermissibly suggestive. Here, the customer asked to hear a voice to confirm his visual identification, the voice identification procedure was conducted separately from the photographic lineup, he did not view King while listening to the voice, the words spoken by King were not the same as those used in the robbery, and he was 100 percent certain of his voice identification after being 99 percent certain of his identification of King in the photographic lineup. Consequently, “the subsequent [voice] show-up may be characterized as merely confirmatory and therefore reliable, despite the suggestive procedure.” Gibbs v. State, 403 S.C. 484, 494 (III) (A) (744 SE2d 170) (2012). See also Israel, supra, 521 F2d at 1374 (I) (A) (“[w]here, as here, the victim heard the voice of a suspect after she had identified him by sight, [a show-up identification] is probably less objectionable than if she had not yet identified him”).

Under these circumstances, there was no substantial likelihood of misidentification, and the failure to file a meritless motion cannot amount to ineffective assistance of counsel. Lupoe v. State, 284 Ga. 576, 580 (3) (f) (669 SE2d 133) (2008). Moreover, based upon the customer’s pretrial and in-court identifications, as well as King’s jailhouse admission, we conclude that King cannot demonstrate prejudice from counsel’s alleged shortcoming in failing to seek exclusion of the voice identification. See Campbell v. State, 228 Ga. App. 258, 261-262 (2) (c) (491 SE2d 477) (1997) (finding any error in admission of voice identification harmless because “the victim had unequivocally identified [the defendant] in a photo lineup”).

(d) In his remaining claim of ineffective assistance, King asserts that trial counsel should have objected to the police officer’s testimony about the customer’s pretrial visual and voice identifications. “ [A] decision not to obj ect is usually a matter of trial strategy that will not amount to a valid claim of ineffective assistance of counsel.” Hudson v. State, 325 Ga. App. 810, 815 (1) (e) (755 SE2d 209) (2014). Here, we must presume that counsel made a strategic decision not to object to this testimony, and we cannot conclude that such a decision would have been patently unreasonable. See Ellis v. State, 292 Ga. 276, 286-287 (4) (e) (736 SE2d 412) (2013) (presuming counsel’s choice not to object was strategic); Heard v. State, 296 Ga. 681, 685 (3) (c) (769 SE2d 917) (2015) (rejecting ineffective assistance of counsel claim because trial counsel’s failure to impeach witness with prior inconsistent statements presumed to be strategic); Ponder v. State, 332 Ga. App. 576, 586 (2) (b) (774 SE2d 152) (2015) (rejecting ineffective assistance of counsel claim because trial counsel articulated a strategic decision for not objecting to testimony that bolstered the victim’s testimony).

Judgment affirmed.

Doyle, C. J., Andrews, P. J., Ellington, P. J., and Branch, J., concur. Miller, P. J., concurs specially and in judgment only. Phipps, P. J., concurs fully in Divisions 3, 4 and 5, concurs in judgment only in Division 6, and dissents in Divisions 1 and 2.

MILLER, Presiding Judge,

concurring specially.

I fully concur in the majority’s opinion in Divisions 1 (b), 2, 3, 4, 5, and 6. I write separately, however, because I disagree with the majority’s conclusion in Division 1 (a) that the photo array was not impermissibly suggestive. After a review of the record, I find that the photo array used in this case was very troubling and unduly suggestive. Accordingly, the trial court should have excluded this evidence. Nevertheless, the witness’s subsequent independent voice and in-court identification of King as the perpetrator cured the taint resulting from the impermissible photo array. I would therefore affirm King’s conviction.

The Due Process Clause protects a defendant from “the admission of evidence deriving from suggestive identification procedures.” Neil v. Biggers, 409 U. S. 188, 196 (III) (93 SCt 375, 34 LE2d 401) (1972). Thus, it is crucial that “pretrial identification procedures comport with certain minimum constitutional requirements in order to insure fairness.” Ralston v. State, 251 Ga. 682, 683 (2) (309 SE2d 135) (1983). Whether such evidence should be excluded involves a threshold inquiry into “whether the identification procedure was impermissibly suggestive.” Gravitt v. State, 239 Ga. 709, 710 (4) (239 SE2d 149) (1977).

1. The photo array.

The photo array shown to the witness in this case was, in my view, impermissibly suggestive as a matter of fact, and as a matter of law. The multiple differences between King’s photo, on the one hand, and the other five photos, on the other, immediately draw the viewer to King’s eyes and inevitably lead the viewer to conclude that one photo — King’s — was that of the suspect.

In looking at the six photos included in the array, the viewer immediately notices that King’s eyes are brighter and more distinctive. From there, one sees that the shading in the other five photos is darker. A grainy film is obvious over the other men’s photos. In all but King’s photo, the pictures were clearly cut out from another document. Additionally, in two of the images, it is nearly impossible to determine the facial features of those individuals.

In contrast, King’s photo is clear. It has a white background, without any shading or grainy filter. King’s features are pronounced. Thus, looking at the array, one’s eyes are immediately drawn to King’s photo with the “all but inevitable identification of [King] as the perpetrator.” (Citation and punctuation omitted.) Williams v. State, 275 Ga. 622,623 (2) (571 SE2d 385) (2002); see also Clark v. State, 271 Ga. 6, 12 (7) (b) (515 SE2d 155) (1999).

Under the relevant case law, “slight differences in the size, shading, or clarity of photographs . . . will not render the lineup impermissibly suggestive.” Reddingv. State, 296 Ga. 471, 474 (4) (769 SE2d 67) (2015). In Redding, the Court went on to conclude that, having viewed the photo array at issue, the “lighter background in general, and the background in Redding’s photograph in particular, does not without more render the lineup impermissibly suggestive.” (Emphasis supplied.) Id. In King’s case, there is not just a single difference, and it is the differences in combination that make the array troubling. I thus conclude that this case clearly presents the “more” that shifts a permissible photo array into one that was impermissibly suggestive and highly prejudicial. It was therefore error for the trial court to admit this photo identification into evidence.

2. Independent identification.

An “in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin.” (Citations and punctuation omitted.) Wilson v. State, 275 Ga. 53, 59 (3) (562 SE2d 164) (2002). “The primary evil to be avoided is the substantial likelihood of irreparable misidentification.” Lindsey v. State, 182 Ga. App. 10, 14 (2) (354 SE2d 650) (1987) (citing Coleman v. Alabama, 399 U. S. 1 (90 SCt 1999, 26 LE2d 387) (1970)). There is no likelihood of irreparable misidentification here.

After the robbery, the witness told police, “[I]f I ever see him or hear his voice again I would recognize him.” He similarly later told police that, if he ever heard the robber’s voice, he would be “absolutely 100percent sure.” When later asked to listen to the voice of a suspect — whom police did not identify and whom the witness could not see — the witness identified King’s voice as that of the robber without hesitation.

Moreover, at trial, the witness identified King as the robber. When asked “have you ever been uncertain at all about your identification,” the witness immediately responded, without qualification, “No, I haven’t. You don’t forget that.” See Wilson, supra, 275 Ga. at 59 (3) (considering witnesses’ statements that they were certain of their identifications).

The witness’s certainty in identifying King in court, when viewed in light of his equally certain identification of King’s voice, shows that the in-court identification was sufficiently independent of the photo array to satisfy due process. Biggers, supra, 409 U. S. at 196 (III). Considering all of the circumstances, the suggestiveness of the photo array did not taint the subsequent, independent, in-court and voice identification of King. See Coleman, supra, 399 U. S. at 4 (I). Accordingly, I would affirm King’s convictions.

PHIPPS, Presiding Judge,

concurring in part and dissenting in part.

I concur fully in Divisions 3, 4, and 5 of the majority opinion. But because I believe the trial court committed reversible error by failing to exclude the customer’s pretrial photographic and in-court identifications of King as the perpetrator, I respectfully dissent from Divisions 1 and 2.1 concur in the judgment only as to Division 6.

“On appeal, we will reverse a conviction based on a pretrial photo identification if the photographic lineup was so impermissibly suggestive that there exists a very substantial likelihood of irreparable misidentification.” A photo array is impermissibly suggestive “if it leads the witness to an all but inevitable identification of the defendant as the perpetrator, or is the equivalent of the authorities telling the witness, ‘This is our suspect.’ ” As the majority notes, we review for abuse of discretion the trial court’s denial of a motion to exclude evidence of a pretrial photo identification. And while “abuse of discretion” is a deferential standard of review, it “is not toothless” and does not “require the appellate courts to rubber-stamp” the trial court’s decision.

1. In Division 1 (a) of its opinion, the majority concludes that the photo array in this case was not impermissibly suggestive because “slight differences in the size, shading, or clarity of photographs used in an identification lineup will not render the lineup impermissibly suggestive.” But the array in this case involves five qualitatively homogenous photographs of men who were not suspects, and one photograph — King’s — that plainly differs from all the others in terms of shading, clarity, background, and level of contrast. Accordingly, the array was the equivalent of the police telling the customer that King was their suspect.

The array, which was included in the record exactly as it was shown to the customer, contains six black-and-white headshots mounted on a manila folder in two rows of three. The men depicted in the array are all the same race and have the same general complexion and facial hair, but King’s picture differs markedly in quality from the other five. The other five are photocopies that appear to have been cut and pasted onto a separate sheet of differently-toned paper, as a scissored gray halo outlines these men’s heads. Moreover, their images show minimal contrast between light and dark and are of such poor quality that their features are difficult to discern. King’s picture, on the other hand, has no gray halo and displays a keener contrast between light and dark that renders his features — particularly his eyes — far more prominent than those of the other men. Consequently, the viewer’s attention is immediately drawn to King’s image, and the obvious conclusion is that it was taken at a different location or with a different camera than all the rest.

The combination of conspicuous differences unique only to King’s picture distinguish this case from those cited by the majority, which involved only minor variations among one or two image qualities. This is not a case in which multiple pictures all differ from each other in quality, suggesting that the police obtained them from various sources; here, there are five pictures with the same background, tone, shading, clarity, and level of contrast, and only one picture — King’s — that looks different. Nor is this a case in which the only difference between King’s image and the others is one of shading or tone, as all the pictures except for King’s are far less clear and also contain an unmistakable scissored outline indicating that they were cut and pasted onto a different background. Finally, rather than being “slight,” the differences here are sufficiently pronounced that the viewer quickly realizes that five of the photographs came from one source, whereas King’s, alone, was obtained elsewhere. In short, “one of these things is not like the others.”

Because King’s picture is the only one that stands out in these multiple, immediately visible ways, is the only one that differs in any qualitative way from the others, and arguably is the only one in which the image is shown with sufficient clarity to enable an identification, the array effectively proclaimed that King was the police’s suspect. Therefore, the array was impermissibly suggestive, and the trial court erred by finding otherwise.

2. The next question is whether, under the totality of the circumstances, the impermissibly suggestive photo array led to a substantial likelihood of irreparable misidentification. Factors relevant to this inquiry include

(1) the witness’s opportunity to view the accused at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the accused; (4) the witness’s level of certainty at the confrontation with the accused; and (5) the length of time between the crime and the confrontation. The ultimate question is, whether under the totality of the circumstances, the identification is reliable.

Here, the only factor weighing in favor of the reliability of the customer’s pretrial identification is his claim that he was certain of it. The other factors uniformly go the other way.

The customer had little opportunity to view the robber. The entire incident lasted only a few minutes, and for half of that time, the customer was on the floor and had been told not to look up. The robber’s face was covered from the nose down by a dark handkerchief. Although the customer testified that the handkerchief slipped down when the robber spoke to him, he clarified that it “didn’t slip all the way.” Thus, the customer never had a full view of the robber’s face. And his attention could not have been focused solely on the robber, because he was able to describe the weapon in detail as a double barrel sawed-off shotgun approximately 19 to 20 inches in length. Additionally, immediately after the incident, the customer gave the police only, an approximate height and weight estimate of the robber, with no details about any facial features. At trial, he testified that this very general description was the best one he could give. Critically, an entire year passed between the incident and the customer’s viewing of the photo array, so his memory could not have been fresh. Under these circumstances, there was a substantial likelihood of irreparable misidentification, and the trial court abused its discretion by failing to exclude the customer’s pretrial photo identification of King.

3. An improper pretrial identification generally taints a subsequent in-court identification unless the in-court identification “had an independent origin” from the pretrial identification. In cases in which we have found an independent origin, witnesses have testified that they knew the defendant apart from the crime or that their in-court identifications were based on their memories of the crime, not on the pretrial photo arrays. There was no evidence of any independent origin here. Although the customer pointed to King in court as the person who had assaulted him, the customer was not asked — and did not explain — the basis for that identification. Thus, we cannot assume that the in-court identification was not tainted by the prior, impermissibly suggestive photo array.

Decided March 30, 2016.

W. Allen Adams, Jr., for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellee.

4. Finally, the admission of the improper pretrial and in-court identifications was not harmless error. The police never found the gun used in the robbery, and there was no physical evidence linking King to the crime. Other than the customer’s identifications, the only other evidence against King was the testimony of a convicted felon, who hoped for a reward, that he had overheard King bragging about the crime. Moreover, King offered an alibi — multiple defense witnesses testified that he was at home hosting a neighborhood block party when the robbery occurred.

Because the trial court committed harmful error by admitting the customer’s pretrial and in-court identifications of King as the robber, I would reverse King’s convictions.

       At some point during this time period, the customer was shown a photographic lineup that did not include King, and he did not identify any of the persons depicted as the robber.

       We cannot agree with the dissent’s view that the facial features depicted in two of the pictures are “nearly imperceptible” and that it cannot be determined if another picture shows a bald man. All of the men in the lineup clearly have similar hairlines, and their facial features are recognizable.

       We note that a witness viewing a lineup will likely be more focused on comparing the physical features of the persons depicted with his visual memory of the perpetrator than identifying different characteristics of the photographs themselves.

       While the police officer stated that he told the customer “we have a suspect in mind” when he telephoned him “to come look at some photos,” this general statement did not render the lineup impermissibly suggestive. “Although a police officer displaying a lineup to a victim or witness should avoid telling the person that the lineup contains the police officer’s suspect, such a statement does not make a lineup impermissibly suggestive since the very fact that a lineup is being conducted suggests that a suspect is contained therein.” (Punctuation omitted.) Mobley v. State, 277 Ga. App. 267, 270 (1) (626 SE2d 248) (2006). And here, the officer did not tell the customer that the suspect was in the particular lineup shown to him.

       In contrast, when the customer was previously shown another photographic lineup at a different point in the police investigation, he did not identify any of the persons depicted as the robber.

       A person commits the offense of aggravated assault when he or she assaults:
      (1) With intent to murder, to rape, or to rob;
      (2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; or
      (3) A person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons.

       The trial court instructed the jury to place its verdict for the armed robbery charge on the reverse side of the indictment and its verdict for the other three charges on blank paper that would be provided.

       See Allen v. United States, 164 U. S. 492, 501 (9) (17 SCt 154, 41 LE 528) (1896).

       King cites to the following footnote in Brodes, supra, to support his contention that counsel should not have requested the level of certainty portion of the pattern charge: "Our [2000] observation [of a split of opinion among state appellate courts] caused the editors of the third edition of the criminal volume of the Suggested Pattern Jury Instructions to insert a cautionary note concerning the use of the ‘level of certainty’ portion of the charge. Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, Par. 1.35.10 (c), pp. 27-28 (3rded. 2003).” 279 Ga. at 436-437, n. 3. However, we cannot determine from the Supreme Court’s opinion exactly when in 2003 the third edition was issued, and King submitted no evidence that this edition was issued before the date of his trial in 2003. Additionally, the 2000 decision referenced by the Supreme Court in Brodes, supra, pretermitted whether the level of certainty charge should be continued and “note[d] that while some courts have discontinued the use of such a charge,... other courts continue to include the ‘level of certainty’ language in their charge on eyewitness identification.” Jones v. State, 273 Ga. 213, 219 (3) (b), n. 17 (539 SE2d 143) (2000).

       It is all the more difficult to distinguish that line between permissible and impermissible arrays because, although the case law instructs that “slight differences” do not cross that line, see Redding, supra, 296 Ga. at 474 (4), we are not privy to the images in those prior cases and thus cannot compare apples to apples. As the saying goes, “beauty is in the eye of the beholder.” Margaret Wolfe Hungerford, Molly Baum (1878). And we are not able to behold those images. Nevertheless, in my eye, the images in King’s array show more than “slight differences” and thus cross the line.

        Jones v. State, 303 Ga. App. 366, 367 (1) (693 SE2d 549) (2010) (punctuation and footnote omitted).

       Id. (punctuation and footnote omitted).

       See Lovelady v. State, 307 Ga. App. 788, 790 (706 SE2d 148) (2011).

        Reed v. State, 291 Ga. 10, 13 (3) (727 SE2d 112) (2012) (citation and punctuation omitted).

        Frazier v. State, 305 Ga. App. 274, 283 (699 SE2d 747) (2010) (Barnes, P. J., concurring in part and dissenting in part).

        Green v. State, 291 Ga. 287, 293 (6) (728 SE2d 668) (2012) (citations and punctuation omitted).

       The majority writes that “a witness viewing a lineup will likely be more focused on comparing the physical features of the persons depicted with his visual memory of the perpetrator than identifying different characteristics of the photographs themselves.” Maj. op. at 535 (1) (a), n. 3. But the majority provides no citation to authority or evidence to support this speculation. Even assuming that the customer could ignore the quality of the photographs in favor of their content, his ability to make a meaningful comparison of the men’s physical features was severely hampered by the poor quality of all the images save Eng’s.

       For example, one of the men may or may not be bald, and the facial features of two others are so monochromatically gray that they are nearly imperceptible.

       Indeed, the officer testified that he obtained Eng’s picture from another jurisdiction, whereas the other five came “from [his] files.”

       For example, in Green, the defendant objected that his picture in two photo arrays used to identify him was “more of a closeup shot and ha[d] more detail than the other photos.” Id. The Supreme Court rejected this claim after viewing the arrays and concluding that the differences to which the defendant referred were “indeed slight” and that “his photograph [was] not the only one in each array with as much clarity.” Id.; see also Pinkins v. State, 300 Ga. App. 17, 19 (684 SE2d 275) (2009) (qualitative differences between defendant’s photo and the others did not invalidate lineup because they were “slight” and because witnesses were told before viewing lineup not “to be distracted by any background scenery, since photographs are sometimes taken at various locations or obtained from a variety of sources”); Rutland v. State, 296 Ga. App. 471, 474 (2) (675 SE2d 506) (2009) (detective who had assembled array effectively minimized slight differences in picture quality by using a computerized process to enlarge defendant’s photo and produce the lineup in black and white “to provide more uniformity in the color, quality, and background of the photos”); Brewer v. State, 219 Ga. App. 16, 20 (463 SE2d 906) (1995) (our review of the array showed that defendant’s contention that “the picture tone of his photograph in the six-person array was demonstrably lighter than the other five” — the only difference mentioned by defendant — was “without merit”).

       Joe Raposo and Jon Stone, One of These Things, on Sesame Street Book & Record — Original Cast (Columbia Records, 1970).

       See Heng v. State, 251 Ga. App. 274, 276 (2) (554 SE2d 243) (2001).

       Id. (citation and punctuation omitted).

       We note that in light of potential problems with eyewitness identification, juries may no longer consider a “witness’s certainty in his/her identification as a factor to be used in deciding the reliability of that identification.” Brodes v. State, 279 Ga. 435, 442 (614 SE2d 766) (2005) (footnote omitted).

       Compare, e.g., Rutland, supra at 475 (2) (no substantial likelihood of irreparable misidentification where victim had “unrestricted view” of perpetrator, stood “face-to-face” with him for three minutes, paid particular attention to his facial features, and recalled that his “nostrils flared in a very distinctive manner”).

       The maj ority discounts the customer’s “lack of eloquence in describing the robber’s facial features,” maj. op. at 536 (1) (b), but there is no evidence in the record that the customer gave any description of the man’s facial features, ineloquent or otherwise.

       Compare Price v. State, 289 Ga. App. 763, 766 (2) (658 SE2d 382) (2008) (no substantial likelihood of irreparable misidentification where victim was able to describe assailant to sketch artist, who generated a composite sketch that was “very similar” to defendant’s lineup photo).

       Compare, e.g., McIvory v. State, 268 Ga. App. 164, 168 (2) (b) (601 SE2d 481) (2004) (no substantial likelihood of misidentification where victim viewed photo array three hours after robbery).

       See Sims v. State, 244 Ga. App. 823, 826 (1) (537 SE2d 133) (2000) (physical precedent only) (reversing conviction based on impermissibly suggestive pretrial identification where victim did not have a good opportunity to view burglar’s face and described him only in general terms that “were not particularly distinctive”); see also Banks v. State, 216 Ga. App. 326, 329 (3) (454 SE2d 784) (1995).

        Thompson v. State, 320 Ga. App. 46, 47 (2) (743 SE2d 24) (2013) (citation and punctuation omitted); see also Sims, supra; Tiller v. State, 222 Ga. App. 840, 841 (476 SE2d 591) (1996).

       See, e.g., Thompson, supra at 47 (2) (in-court identification was not tainted by pretrial photo array because witness testified that her in-court identification of defendant “was based on her familiarity with him as a neighbor and friend of her daughter over a period of years”);
        Tiller, supra at 841 (in-court identification had an independent origin where witness “testified that he based his identification on seeing appellant outside the apartment’s laundry room, holding the television, and not on the picture of appellant he viewed after the burglar/’).

       One of those identifications was a voice identification that occurred after the customer was shown the photo array. But, as the majority notes, maj. op. at 547 (6) (c), the voice identification was the auditory equivalent of a one-on-one showup, as the customer was not presented with any other voices for a basis of comparison. See Butler v. State, 276 Ga. App. 161, 164 (1) (623 SE2d 132) (2005) (“a one-on-one showup is inherently suggestive”) (punctuation and footnote omitted). And because the customer had already identified King through the photo array, he must have realized that it was likely King’s voice he was hearing.