310 Ga. 738
FINAL COPY
S21A0113. KIRKLAND v. THE STATE.
MELTON, Chief Justice.
Johnathan Kirkland appeals his convictions for malice murder
and related offenses, contending in a single enumeration that the
trial court erred by failing to suppress an identification of him made
by means of a photo lineup.1 Specifically, Kirkland contends that the
1 On June 5, 2015, Kirkland and his brother, Brandon, were indicted for
16 counts relating to the shooting death of Amin Bouchelaghem and related
offenses committed against Larry Brooks, Michael McGee, Sr., and Michael
McGee, Jr. All of the offenses were committed on December 30, 2013.
Regarding the shooting death of Bouchelaghem, the two co-defendants were
indicted for participation in criminal street gang activity (Count 1); malice
murder (Count 2); felony murder (Counts 3 and 5); aggravated assault (Count
4); and attempted armed robbery (Count 6). In addition, the two co-defendants
were indicted for attempted murder, aggravated battery, and aggravated
assault of Larry Brooks (Counts 9, 10, and 11); attempted murder and
aggravated assault of Michael McGee, Sr. (Counts 12 and 13); attempted
murder and aggravated assault of Michael McGee, Jr. (Counts 14 and 15); and
possession of a firearm during the commission of a felony (Count 16). Only
Kirkland was indicted for a third count of felony murder (Count 7) and
possession of a firearm by a convicted felon (Count 8).
At a joint jury trial held from March 22 to April 12, 2016, Kirkland was
found guilty of all counts except for three counts of attempted murder (Counts
9, 12, and 14) and two counts of aggravated assault (Counts 13 and 15). The
trial court initially imposed a sentence of 15 years in prison for criminal street
gang activity (Count 1); life without parole for malice murder (Count 2); 30
photo-lineup procedure was unduly suggestive. For the reasons set
forth below, we affirm.
1. The evidence presented at trial shows that, on December 30,
2013, Kirkland, a member of the Bloods gang, while allegedly with
his brother, Brandon,2 attacked and fatally shot Amin
Bouchelaghem during an attempted robbery outside of a nightclub.
years for attempted armed robbery (Count 6); five years for possession of a
firearm by a convicted felon (Count 8); 20 years for aggravated battery (Count
10); 20 years for aggravated assault (Count 11); and five years for possession
of a firearm during the commission of a felony (Count 16), to run consecutively.
All three felony murder counts (Counts 3, 5, and 7) and one aggravated assault
count (Count 4) were purportedly merged with Count 2, although those counts
were actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369
(4) (
434 SE2d 479) (1993).
The trial court granted a motion for an out-of-time appeal on November
1, 2016, and a subsequent timely motion for new trial was filed. Thereafter,
Kirkland retained new counsel, who filed an amended motion for new trial on
August 2, 2018. After a hearing, the trial court denied the motion for new trial
on April 25, 2019. Later, however, the trial court determined that the
aggravated assault count (Count 11) should have merged into the aggravated
battery count (Count 10) for purposes of sentencing and entered a new final
disposition on May 15, 2019, vacating the 20-year sentence for aggravated
assault and merging it instead. Kirkland timely filed a notice of appeal on May
24, 2019. The case was docketed in this Court on July 25, 2019, but the appeal
was dismissed on November 20, 2019, when no appellant’s brief was filed.
Through new counsel, Kirkland filed a second motion for an out-of-time
appeal in the trial court on January 23, 2020, which the trial court granted on
July 8, 2020. Kirkland timely filed a notice of appeal on August 7, 2020,
bringing the current appeal before this Court. The appeal was docketed to the
term of this Court beginning in December 2020 and submitted for a decision
on the briefs.
2 Brandon was acquitted of all charges by the jury.
2
Bouchelaghem was preparing to reopen the club after renovations,
and he was carrying a large amount of cash. Larry Brooks, Michael
McGee, Sr., and Michael McGee, Jr. were at the club helping
Bouchelaghem. At one point, when Bouchelaghem tried to leave, his
car would not start. McGee, Jr. pulled his vehicle into the back
parking lot of the club so they could try to “jump” Bouchelaghem’s
vehicle. McGee, Jr. noticed two armed men approaching. As they got
closer, the two gunmen opened fire. One of the shots struck Brooks
in the back, paralyzing him from the waist down. The shots
continued, and McGee, Sr. dropped to the ground and pretended to
be dead. McGee, Jr. escaped the gunshots by jumping over a nearby
wall, injuring his leg in the process. The gunmen then tried to pull
Bouchelaghem out of his vehicle, but he resisted. After a short
struggle, the gunmen shot Bouchelaghem, killing him.
Multiple witnesses identified Kirkland as one of the gunmen.
Shortly before the shootings, Shekierria Adams saw Kirkland at a
store across the street from the nightclub. She witnessed Kirkland,
who was carrying a gun, cross the street to the alley behind the
3
nightclub and heard gunshots soon thereafter. Teresa Adeeji told
police that she saw Kirkland shooting into Bouchelaghem’s car, and
she also identified Kirkland in a photo lineup. In separate
interviews, McGee, Jr. and Brooks also identified Kirkland in photo
lineups.
In addition to these identifications, there was evidence that
Kirkland admitted to the shootings. Jarvis McElroy testified that,
before the murder, Kirkland stated that he was “going to get”
Bouchelaghem. After the shootings, Kirkland stated, “I told you I
was going to get him.”3
2. As to the evidence presented at trial, Kirkland takes issue
with only the photo-lineup identification made by McGee, Jr.,
arguing that the procedure used by police was unduly suggestive
and that the trial court should have granted his motion to suppress
that identification. With regard to this argument, the evidence
3 Kirkland does not challenge the sufficiency of the evidence, so we do
not consider it, as this Court no longer reviews as a matter of course sufficiency
of the evidence in the absence of an enumerated error in non-death penalty
cases. See Davenport v. State, 309 Ga. 385, 399 (4) (b) (
846 SE2d 83) (2020).
4
presented at a pretrial hearing on Kirkland’s motion to suppress
McGee, Jr.’s identification reveals that, on January 10, 2014,
Detective J. Thorpe conducted an interview with McGee, Jr. During
this interview, Detective Thorpe presented McGee, Jr. with three
photo lineups, each consisting of six photographs of potential
suspects. One of the lineups contained a photograph of Kirkland and
non-suspect “fillers.” On that day, McGee, Jr. was unable to make
any identifications. At the end of the interview, McGee, Jr. told
Detective Thorpe that he could not concentrate properly on the
photographs because of the “heavy medications” he was taking for
the injuries to his leg he sustained while fleeing the shooters.
McGee, Jr. described his condition as nauseous and “unnervey,” and
he agreed to come back for a second interview to be conducted at
some point after he was no longer taking the medications.
On January 16, 2014, McGee, Jr. returned to the police station,
and Detective Thorpe once again presented the same lineups to him,
though the order of the potential suspects in each set had been
shuffled. At that time, McGee, Jr. indicated that he was no longer
5
suffering from medication side effects. During this viewing of the
photo lineups, McGee, Jr. identified a photograph of Kirkland as one
of the shooters with what McGee, Jr. described to be “100 percent
certainty.”
Kirkland maintains that this procedure was unduly suggestive
for three reasons: (a) Detective Thorpe knew Kirkland was the
suspect at the time the photo lineups were administered; (b) McGee,
Jr. was shown the same lineup containing the same photograph of
Kirkland at two different times; and (c) a neighborhood friend had
previously shown McGee, Jr. a photograph of Kirkland prior to
McGee, Jr.’s first interview with Detective Thorpe. Even if we give
Kirkland the benefit of the doubt and assume that he did not
affirmatively waive these contentions, the trial court did not abuse
its discretion by finding that the photo-lineup procedure was not
unduly suggestive.
We have previously explained:
“If an out-of-court identification by a witness is so
impermissibly suggestive that it could result in a
substantial likelihood of misidentification, evidence of
6
that out-of-court identification violates due process and is
inadmissible at trial.” Westbrook v. State, 308 Ga. 92, 99
(4) (839 SE2d 620) (2020) (citation and punctuation
omitted). “This Court employs a two-step process in
examining a trial court’s admission of identification
evidence for error.” Bowen v. State, 299 Ga. 875, 879 (4)
(792 SE2d 691) (2016). First, “[w]e review a trial court’s
determination that a lineup was not impermissibly
suggestive for an abuse of discretion.” Westbrook, supra,308 Ga. at 99 (4). “[A]n identification procedure is not
impermissibly suggestive unless it leads the witness to
the virtually inevitable identification of the defendant as
the perpetrator, and is the equivalent of the authorities
telling the witness, ‘This is our suspect.’” Id. (citation and
punctuation omitted) Second, if a trial court properly
“concludes that the State employed an impermissibly
suggestive pre-trial identification procedure, the issue
becomes whether, considering the totality of the
circumstances, there was a substantial likelihood of
irreparable misidentification.” Curry v. State, 305 Ga. 73,
76 (2) (
823 SE2d 758) (2019) (citation and punctuation
omitted). If, however, a trial court properly determines
that “the identification procedure is not unduly
suggestive, it is not necessary to consider whether there
was a substantial likelihood of irreparable
misidentification.” Westbrook, supra,308 Ga. at 99 (4)
(citation and punctuation omitted).
Thomas v. State, ___ Ga. ___, ___ (4) (___ SE2d ___) (2020). As
discussed below, none of Kirkland’s contentions would support a
finding that any of the actions taken by Detective Thorpe during the
identification procedure led McGee, Jr. to the “virtually inevitable”
7
conclusion that Kirkland was the perpetrator, and, as such, the trial
court did not abuse its discretion in denying Kirkland’s motion to
suppress. See id.
(a) First, Kirkland argues that the procedure was unduly
suggestive because Detective Thorpe knew Kirkland’s identity as
the suspect when he conducted the photo lineups. Kirkland
essentially contends that a photo lineup must be presented by
someone who does not know the suspect’s identity. But there is no
authority supporting Kirkland’s argument. To the contrary,
statutory law contemplates photo lineups being administered by
police officers who know the identity of a suspect, see OCGA § 17-
20-2 (b) (2) (B).4 And, even in those situations, failure to follow the
procedures contained within the statute does not require automatic
exclusion. See OCGA § 17-20-3 (“The court may consider the failure
4 This statute provides that it is appropriate for a photo lineup to be
administered by an individual
[w]ho knows the identity of the suspect [and uses] a procedure in
which photographs are placed in folders, randomly shuffled, and
then presented to the witness so that the individual conducting
such procedure cannot physically see which photograph is being
viewed by the witness until the procedure is complete.
8
to comply with the requirements of this chapter with respect to any
challenge to an identification; provided however, that such failure
shall not mandate the exclusion of identification evidence.”). See
also Roseboro v. State, 308 Ga. 428, 433-434 (2) (a) (
841 SE2d 706)
(2020) (even assuming that OCGA § 17-20-2 applies to a procedure
in which a photo lineup was conducted using pictures on a phone,
non-compliance with the statute would not result in the automatic
exclusion of an identification); United States v. Everett, Case No.
1:17-CR-020-RWS-JKL,
2019 WL 6458425, at *3 (N.D. Ga. July 5,
2019) (failure to follow shuffling procedure in OCGA § 17-20-2 did
not render photo-lineup procedure unduly suggestive). So, this
ground lacks merit, as Kirkland has identified no action or
statement by Detective Thorpe that is the equivalent of him telling
McGee, Jr., “This is our suspect.”
Westbrook, supra,308 Ga. at 99.
(b) Second, Kirkland argues that the procedure was unduly
suggestive because Detective Thorpe presented the lineup
containing Kirkland’s photograph to McGee, Jr. twice, without
selecting a completely different photograph of Kirkland for the
9
second interview and without presenting that photograph in a
lineup with all new filler photographs of non-suspects. Again
without citation of authority, Kirkland argues that this
automatically invalidated the procedure. But he provides nothing to
support his speculation that conducting the second lineup in this
manner was impermissibly suggestive. As already stated, there was
no evidence presented that the procedure employed by Detective
Thorpe was equivalent to McGee, Jr. being told by police the identity
of the suspect. See Westbrook, supra,308 Ga. at 99. We have
previously held that a trial court may be authorized to find that
there was no impermissible suggestiveness where the witness
identified the defendant in two lineups and the defendant’s
photograph was the only one to appear in both. See Clark v. State,
279 Ga. 243, 245 (
611 SE2d 38) (2005). The procedure used in this
case is even less suggestive than that used in Clark, as the same
photographs were repeated. Therefore, Kirkland’s second ground for
contending that the photo lineup was unduly suggestive and should
have been suppressed also fails.
10
(c) Finally, Kirkland maintains that the photo-lineup
procedure was unduly suggestive because there was evidence that
McGee, Jr. had been shown a photograph of Kirkland by a
neighborhood friend prior to his first interview with Detective
Thorpe. This argument fails in two ways. First, the outside action
taken by Kirkland’s neighborhood friend has no bearing on the
identification procedure employed by Detective Thorpe and provides
no evidence that the procedure, itself, was unduly suggestive. See
Curry, supra,305 Ga. at 78 (2) (holding that the witness’s viewing
of the defendant’s picture in a newspaper prior to making an
identification did not require a mistrial because it was not an
“identification procedure employed by law enforcement”). Second,
McGee, Jr. testified that he could not recall whose photograph his
friend had shown him when he ultimately made an identification of
Kirkland in the second photo lineup (and he made no identification
at all in the first lineup). McGee, Jr. further indicated that the only
other time he remembered seeing the shooter’s face was on the night
of the shooting. McGee, Jr. also stated that he did not believe that
11
the person his friend had shown him was the same person he
identified from the lineup, though there may have been similarities.
For all the reasons set forth above, the trial court did not abuse
its discretion by admitting McGee, Jr.’s identification of Kirkland.
See Westbrook, supra,308 Ga. at 99.
Judgment affirmed. All the Justices concur.
DECIDED FEBRUARY 1, 2021.
Murder. Fulton Superior Court. Before Judge Ellerbe.
Michael W. Tarleton, for appellant.
Paul L. Howard, Jr., District Attorney, Kevin C. Armstrong,
Stephany J. Luttrell, Assistant District Attorneys; Christopher M.
Carr, Attorney General, Patricia B. Attaway Burton, Deputy
Attorney General, Paula K. Smith, Senior Assistant Attorney
General, Mark S. Lindemann, Assistant Attorney General, for
appellee.
12
