Georgia Court of Appeals reverses criminal conviction and clarifies rule on eyewitness identification
The Georgia Court of Appeals recently had to determine if a jury instruction which allowed a jury to use a witness’ level of certainty as a factor in determining the reliability of an identification of a defendant was harmless error. The court ruled that such an instruction was not harmless under the facts of the case.
In Robinson v. State, the defendant, Robinson, was accused of committing two separate robberies. On October 14, 1999, a victim walked from his home to his car to retrieve his cell phone. He was approached by Robinson and another man. Robinson put a gun to the man’s head while the accomplice searched the man. They then walked the man back into his home where his wife and son were. The wife was on a telephone in her bedroom telling someone what was happening. The man gave the accomplice keys to a safe and retrieved money from the safe. Robinson then took the bedroom phone along with a kitchen phone and left with the money. The accomplice allegedly had a shirt over his head the whole time.
On October 20,1999, a man was approached by two men as he neared his home. The men pointed guns at the victim and took $286 from him. The victim reported to police that prior to the robbery he had noticed two men on bicycles. A nearby officer saw two men on bicycles and searched them. The officer discovered $286 but no weapons. One of the men was Robinson who admitted to the October 20 robbery.
A week after the October 20 robbery, the victims of the first robbery recognized Robinson in a newspaper story about the second robbery. They told the police and Robinson was charged with the first robbery as a result. At trial for the first robbery, the wife identified Robinson. In addition, fingerprints that were lifted from the phones had not been fully processed, but police testified they were not Robinson’s. Nonetheless, Robinson was found guilty and sentenced to 20 years for burglary and kidnapping and life for the three robberies.
Robinson moved for a new trial based on improper jury charge on identity and newly discovered evidence. The trial judge had told that jury that in assessing the reliability of the witnesses’ identification they could consider the witness’ level of certainty. It was also discovered after trial that the finger prints on the phones were of another man already in jail for another armed robbery. That man claimed that it was not Robinson who robbed the couple, but that it was in fact he and another man.
The Court of Appeals recognized that the Georgia Supreme Court ruled that “level of certainty” instructions were not allowed in assessing the reliability of the identification. In determining if the error was harmless, the appellate court reasoned that the couple picked Robinson out of a newspaper one week after the crime had occurred. In addition, the couple did not provide police with a description of the assailant on the night of the robbery, and they did not pick Robinson out of any kind of lineup or photo array. The court concluded that they could not find such an instruction to be harmless, and thus, the conviction was reversed and a new trial was set.
Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine.
