¶1NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2In the Supreme Court of Georgia
¶3 Decided: June 11, 2024
¶4 S24A0129. ELEBY v. THE STATE.
¶5 BOGGS, Chief Justice.
¶6 Appellant Lekievius Eleby challenges his 2012 convictions for
¶7felony murder and other crimes in connection with a home invasion
¶8that resulted in the death of Danavan Bussey 1 Appellant contends
¶9 1 The crimes occurred on December 5, 2010. On March 16, 2011, a Lamar
¶10County grand jury indicted Appellant, Shameik Spinks, and Bryce Smith on multiple counts: Count 1—the felony murder of Bussey (armed robbery); Count 2—the felony murder of Bussey (aggravated assault); Count 3—armed robbery; Count 4—burglary; Count 5—the aggravated assault of Holmes; Count 6—the aggravated assault of Johnson; Counts 7, 8, and 9—the false imprisonment of Battle, Holmes, and Johnson; Count 10—conspiracy to commit armed robbery; and Count 12—tampering with evidence. Appellant was separately indicted in Count 13 for possession of a firearm during the commission of a felony, and Spinks was also separately indicted for the same offense. On January 5, 2012, before trial, Bryce Smith pled guilty to robbery by intimidation and received a sentence of 15 years in prison, with 10 to serve, and testified against Appellant at trial. On February 27, 2012, before trial, Spinks pled guilty to felony murder. He testified for the defense at trial. At a trial from February 27 to March 6, 2012, a jury found Appellant guilty on all counts of the indictment. On March 6, 2012, the trial court sentenced Appellant to life in prison for felony murder (armed robbery); to a concurrent sentence of life in prison for armed robbery; to 15 consecutive years in prison for burglary; to 15 concurrent that the evidence was legally insufficient to support his convictions
¶11because the identifications of Appellant as one of the participants
¶12were not reliable; that the indictment was multiplicitous; that the
¶13trial court abused its discretion when it excluded evidence of past
¶14recollection recorded; that the trial court erred in failing to grant
¶15Appellant’s motion to suppress certain pretrial and trial
¶16identifications; that the trial court committed plain error when it
¶17years in prison for the aggravated assaults of Holmes and Johnson; to 10 concurrent years in prison on the three false imprisonment counts; to 10 concurrent years in prison for conspiracy to commit armed robbery; to 10 concurrent years in prison on the tampering count; and to five consecutive years in prison on the possession count. The trial court merged Count 2 for sentencing purposes. On March 19, 2012, Appellant filed a motion for new trial, which he amended through new counsel on March 16, 2020. On August 2, 2023, the trial court denied the motion for new trial, as amended. Appellant filed a timely notice of appeal, and the case was docketed in this Court for the term beginning in December 2023 and submitted for a decision on the briefs. We note that there was a significant delay between the filing of Appellant’s motion for new trial in 2012 and the filing of his amended motion in 2020. See Everett v. State, 899 SE2d 699, 700 n.2 (Ga. 2024) (stating that “[w]e are troubled by the inordinate and unexplained delay between the filing of Everett’s motion for new trial in 2010 and the filing of an amended motion 12 years later”). Here, Appellant was appointed new counsel in 2013, but no substantive filings by that counsel appear in the record. In August 2019, Appellant retained current appellate counsel, who filed the amended motion for new trial in 2020.
¶18 2 allowed a GBI agent to give her opinion about the meaning of certain
¶19text messages; that Appellant’s sentences for the aggravated
¶20assaults of Holmes and Johnson should have merged with each other
¶21or with the armed robbery offense; that the conspiracy to commit
¶22armed robbery should have merged with the conviction for armed
¶23robbery; that the possession offense should have been merged with
¶24felony murder; that the prosecutor made improper and prejudicial
¶25comments in his closing argument; and that his trial counsel was
¶26constitutionally ineffective for failing to make certain objections at
¶27trial. For the reasons that follow, we vacate Appellant’s convictions
¶28and sentences for armed robbery and conspiracy to commit armed
¶29robbery. Appellant’s remaining claims are not preserved for appeal,
¶30are without merit, or do not require reversal.
¶31 1. The evidence presented at trial showed that the victims—
¶32Bussey, Holmes, and Johnson—were friends who attended Gordon
¶33College together and lived in a house on Westchester Drive in
¶34Barnesville in December 2010. Appellant also lived on Westchester
¶35Drive. Johnson testified that he knew Appellant from “hanging
¶36 3 around Barnesville” and that, although he did not “hang out” with
¶37Shameik Spinks, 2 he had “seen him around.” Likewise, Holmes
¶38testified that he had met Appellant at a club, had seen him around
¶39Gordon College and also knew him from the Westchester Drive
¶40neighborhood, but that, at the time of the crimes, he did not know
¶41his last name.
¶42 Before the crimes, there had been animosity between the
¶43victims and Appellant, with the victims thinking that Appellant had
¶44twice broken into their home. In September 2010, Bussey, who was
¶45with Johnson, confronted Appellant, who was with his cousin
¶46Spinks, about the break-ins. According to Johnson, this led to a fight
¶47between Bussey and Appellant, with Spinks also “trying to jump on
¶48[Bussey].” Johnson added that Bussey and Appellant threw some
¶49punches at each other and the fight “just ended.” In addition, on the
¶50night of December 4, 2010, one night before the crimes at issue here,
¶51when the victims were driving down Westchester Drive, they saw
¶52 2 Appellant testified that Spinks’s “granddaddy and my father are first
¶53cousins” and Johnson and Holmes referred to Spinks as Appellant’s cousin. 4 Spinks walking down the street, pulled up next to him, and “had a
¶54couple of words with him.” Holmes testified that he asked Spinks
¶55about the fight with Bussey and that Spinks replied that he was “not
¶56going to fight,” “I’m going to shoot.” The victims drove away.
¶57 In the early morning hours of December 5, 2010, the victims
¶58were having a party at which a few other people, including Diamond
¶59Rhodes and Keitrae Battle, were present. Rhodes and Bussey were
¶60friends, having met at Gordon College, and Battle knew Bussey
¶61through a mutual friend. Rhodes and Battle both testified that they
¶62regularly socialized at Bussey’s house. At trial, Johnson testified
¶63that he heard a knock on the door and opened it. He testified that
¶64“all [he] remembered [wa]s a gun in [his] face and they came in.”
¶65When asked “how many people came in,” Johnson said, “[i]t was
¶66three guys. One stood at the door. Lekievius and Shameik, they
¶67came in.” Johnson added that he recognized Appellant and Spinks
¶68even though they had their faces partially covered from the mouth
¶69down. Appellant was armed with a handgun, and Spinks was armed
¶70with a shotgun. When Appellant and Spinks came into the house,
¶71 5 “they asked for money and whatever was valuable.” According to
¶72Johnson, Appellant went to the living room where Holmes was
¶73sitting and had him bend over a table. Bussey then came from the
¶74back of the house and tried to talk to the intruders. Bussey
¶75approached Spinks and attempted to take the shotgun from him.
¶76The two men struggled for it, then “a shot [went] off,” and Bussey
¶77fell to the floor. After the shot was fired, Appellant and Spinks “were
¶78still demanding . . . stuff.” Spinks took Johnson to Bussey’s room and
¶79Appellant took Holmes to Johnson’s room. Johnson found Rhodes’s
¶80handbag in Bussey’s room and gave it to Spinks. Shortly after that,
¶81Appellant and Spinks left. At trial, although Johnson identified
¶82Appellant as one of the intruders in the house that night, he
¶83acknowledged that, when he was first interviewed by the police, he
¶84did not say that Appellant was present during the crimes. According
¶85to Johnson, at the time of the interview, he had “just witnessed the
¶86murder of my best friend,” and “my mind was elsewhere.” Johnson
¶87testified that the crimes lasted five to ten minutes.
¶88 6 Holmes’s testimony tracked that of Johnson, and he added that
¶89Appellant came into the house with his hoodie pulled up to his
¶90mouth but that Appellant let his hoodie slip down, allowing Holmes
¶91to see his entire face. Holmes added that the other person had a
¶92bandanna covering his mouth but not the rest of his face and that
¶93he recognized that person as Spinks. According to Holmes,
¶94Appellant was carrying a revolver, and Spinks had a shotgun.
¶95Holmes also acknowledged that, in an interview with the police, he
¶96was shown a photograph only of Appellant, but added that the
¶97photograph “just confirmed [Appellant’s] name” and did not “suggest
¶98to [him] that that night it was Lekievius.”
¶99 When Battle heard intruders come into the house, she hid in
¶100the bathtub. However, once she heard shots, she tried to exit the
¶101house through the front door but was stopped by one of the intruders
¶102and stayed near the front door until she saw the three intruders exit
¶103the house and walk around the left side of it.
¶104 According to Smith, who lived in the neighborhood, he,
¶105Appellant, Spinks, and some other people were at the home of
¶106 7 Ardrana Pate on the night of the crimes. Smith added that he had
¶107been friends with Appellant since he “was young”; that he had
¶108known Spinks since the summer of 2010; and that he had met
¶109Bussey “through [Appellant].” Smith added that he left Pate’s house
¶110between midnight and 1:00 a.m. and that Spinks later texted him,
¶111asking him “to hit a lick,” which Smith said meant to commit a
¶112robbery. Smith agreed and went outside his house to smoke a
¶113cigarette. He then saw Spinks and Appellant “coming down,” with
¶114Appellant carrying a handgun and Spinks carrying a shotgun.
¶115Smith, who testified that he did not have a weapon, “jumped off
¶116[his] porch” and the men “ran over to the [victims’] house.”
¶117According to Smith, Appellant and Spinks knocked on the door, and
¶118when someone answered, Appellant and Spinks went into the house.
¶119Smith heard Bussey trying to “calm everything down,” but, he
¶120added, “they started tussling.” Smith then heard two shots; “[t]he
¶121first one was kind of loud, but the second one was very loud.” Smith
¶122did not see who was shot, and he then ran to his driveway, from
¶123where he saw Appellant and Spinks running. He saw Appellant and
¶124 8 Spinks go by a neighbor’s house, and “then [he] saw a person throw
¶125a shotgun over the fence.” On cross-examination, Smith
¶126acknowledged that he had given “different versions” of the events of
¶127that night in interviews with law enforcement officials. Among other
¶128versions, Smith told officers that he thought Spinks and Appellant
¶129were the perpetrators, but that it was just a “guess” and that he was
¶130home in his kitchen when he heard gunshots; that Spinks,
¶131Appellant, and a man named Kellius Collier committed the crimes
¶132and that he was at home and saw “the whole thing out of [his]
¶133window”; that he was on his porch when he saw Spinks, Appellant,
¶134and an unspecified third person commit the crimes; that he did not
¶135know anything about the crimes; and that he participated in the
¶136crimes by standing in the doorway of the victims’ house. Smith
¶137testified that he had given these different versions because “[he] was
¶138scared. It was [his] first time ever [to] be in trouble.”
¶139 Ardrana Pate, who lived near the victims’ home, testified that
¶140she knew Smith and Appellant and had met Spinks. She also knew
¶141the victims. Pate testified that on the night of December 4-5, 2010,
¶142 9 Appellant, Spinks, Smith, and Ashley Parker came to her house.
¶143Smith was the last to arrive, shortly after midnight. She added that
¶144she overheard the group “jokingly saying that [it] would be a sweet
¶145lick” to rob the victims’ home and that Appellant asked Spinks to let
¶146him “see the piece.” According to Pate, Spinks had a small backpack
¶147and Appellant “thought that the gun was in it and it actually wasn’t.
¶148[Spinks] said . . . [he] moved it.” She added that they left her house
¶149about 1:30 to 1:45 a.m. on December 5. Similarly, Ashley Parker,
¶150who knew Appellant, Smith, and Spinks, testified that she was at
¶151Pate’s house with the three men and then went to Appellant’s home,
¶152leaving Appellant’s house at about 1:45 a.m.
¶153 Immediately after the shooting, an occupant of Bussey’s house
¶154called 911, and law enforcement officials arrived at the crime scene
¶155around 3:52 a.m. Bussey had been shot once in the leg with the
¶156handgun and once to the right side of his face with the shotgun. The
¶157shotgun wound was fatal. Law enforcement officers subsequently
¶158recovered a pump shotgun from the backyard of a home on
¶159Westchester Drive. A GBI firearms examiner determined that a
¶160 10 shotgun shell found at the crime scene was fired from that shotgun.
¶161Although a .22-caliber bullet was recovered from Bussey’s leg, the
¶162handgun used in the crimes was never recovered.
¶163 GBI Agent Cayce Ingalls testified about text messages that
¶164Appellant and Spinks sent to each other from December 4 to 5, 2010.
¶165For example, at 4:37 p.m. on December 4, Spinks sent Appellant a
¶166text message saying that he would “be over” and that he had “the 22
¶167and the 22 bullets and the pump shells.” At 7:43 p.m. on December
¶1684, Appellant received a text message from Spinks saying that
¶169“n***** just pulled up on me. Then I start poppin and they got scared
¶170LOL they was just like tell [Appellant] it’s on site and I was like then
¶171it’s on. . . . They bi**hes LOL you wanna kill these n*****.”
¶172 In the meantime, from December 4 to 5, Spinks was texting a
¶173person named Marquevus Smith. At 9:00 a.m. on December 4,
¶174Spinks asked Marquevus if he had “the pump shells I gotta hit the
¶175big lick . . . today,” and at 2:00 p.m. on December 4, Spinks asked
¶176Marquevus if he had “the 22.” Marquevus responded that he had the
¶177pump shells, and with regard to Spinks’s question about the “22,”
¶178 11 Marquevus told Spinks to “stop texting nonsense my n**** text
¶179messages get tracked.” Around 6:00 p.m. on December 4, Spinks
¶180directed Marquevus to leave “the pump and the 22” under the porch
¶181of Spinks’s aunt. In text messages around 1:40 to 1:55 a.m. on
¶182December 5, Spinks told Marquevus that he “might have to come hit
¶183this lick”; that this was the “best time” to hit “them college n*****
¶184down there in the house with some hoes”; rob “them soft ass college
¶185boys . . . is a sweet lick ‘cause they gonna show us where everything
¶186at”; and that “them hoes gonna be quiet cause they gonna be scared
¶187to get shot.” Marquevus, however, declined to participate, saying
¶188that the college girls would be “snitching” and he knew that “all of
¶189them . . . got cell phones.”
¶190 The State also offered evidence that Spinks texted Smith at
¶1911:55 a.m. on December 5, asking him if he “want[ed] to hit a lick.”
¶192Smith asked, “where about and what’s it worth.” Spinks replied that
¶193“it’s the college boys,” and Smith said that he lived “right by” them,
¶194that he watched them, that there “ain’t none in there worth all that.”
¶195Smith added that they should “wait ‘til [they were] gone.” Spinks
¶196 12 replied that they would get nothing “when they gone,” and Smith
¶197asked Spinks if he was at Appellant’s house. Spinks replied that he
¶198was, and at 2:13 a.m., Smith texted Spinks that he would “be up
¶199there when [he] g[o]t back from” a friend’s house. At 2:37 a.m.,
¶200Spinks texted Smith “where you at cause we left Kevius’s house. He
¶201went to sleep.”
¶202 Agent Ingalls and Lieutenant Al Moltrum of the Barnesville
¶203Police Department interviewed Appellant at 8:37 a.m. on December
¶2045, as well as at 2:39 p.m. that same day. In the first interview,
¶205Appellant denied committing the crimes, saying that he did not “go
¶206to [the victims’ home] last night,” that he “ain’t went down there and
¶207shot nobody,” and that “[i]f them boys saying I was at they house,”
¶208they were lying, “[p]robably ‘cause they don’t like me.” He also
¶209denied being with Spinks on the night of December 4-5, adding that
¶210he was home by 10:45 p.m., got into the bed that he shared with his
¶211little brother, and went to sleep. In the second interview, law
¶212enforcement officials informed Appellant that they had learned,
¶213contrary to Appellant’s statements during his first interview, that
¶214 13 Spinks was with him on the night of the crimes. Appellant continued
¶215to deny his involvement in the crimes, saying that he was home in
¶216bed. Appellant, however, did say that Spinks texted him on the night
¶217of December 4 and told him about his argument with Bussey and his
¶218friends that night. According to Appellant, Spinks said that he was
¶219“going to get them.” Appellant told Spinks to “stay out of their way.”
¶220Lieutenant Moltrum told Appellant that Pate had told the officers
¶221that Spinks and Appellant were at her house around 2:00 a.m. on
¶222December 5 and that Appellant had gotten himself into trouble in
¶223the first interview in saying that he had gone to sleep around
¶224“midnight.” Appellant said that Pate was “lying” and that it was
¶225“probably later than that” when he went to sleep. Similarly, when
¶226Lieutenant Moltrum informed Appellant that Spinks had said that
¶227Appellant was with Spinks “the whole time,” Appellant said that
¶228Spinks was lying.
¶229 Appellant and Spinks testified in Appellant’s defense at trial.
¶230Spinks testified that Appellant did not plan or take part in the
¶231robbery. According to Spinks, the last time he saw Appellant on the
¶232 14 night of the crimes, Appellant “said he was going to go to sleep.” He
¶233added that, during his plea hearing, he told the trial court that, if
¶234Appellant were convicted, the “court would be convicting an
¶235innocent man.” He further testified that he, Smith, and “some dude
¶236[Smith] brought named Pooh” committed the crimes.
¶237 Appellant testified that he lived on Westchester Drive with his
¶238mother, father, little brother, and sister, where he shared a bedroom
¶239with his little brother, who is six years old. He added that he knew
¶240Smith, who lived down the street from him, and that he had known
¶241Spinks since August 2010. With regard to Spinks’s text at 4:37 p.m.
¶242on December 4, Appellant said that he thought that Spinks was
¶243simply saying that “he was happy that he had a gun.” Appellant
¶244added that he saw Spinks about 8:30 that night at a friend’s house
¶245and that Spinks had a book bag with him with a .22-caliber revolver
¶246inside of it. Appellant left the friend’s house and went home.
¶247However, after midnight on December 5, he went with Spinks and
¶248Parker to Pate’s house. After leaving Pate’s house, Appellant,
¶249Spinks, and Parker went to Appellant’s house, where they drank
¶250 15 and watched television in the garage. According to Appellant, he
¶251subsequently went to bed, and Spinks and Parker left his house.
¶252Appellant then called his girlfriend and then went to sleep.
¶253Appellant testified that he was not “involved in any way with the
¶254robbery of” Bussey and his friends. On cross-examination, Appellant
¶255acknowledged that he told the police on the morning of December 5
¶256that he had not seen Spinks on the night of December 4 to 5 and did
¶257not know where Spinks was.
¶258 Cell phone records showed that Appellant spoke with his
¶259girlfriend for about 45 minutes beginning at 2:26 a.m. on December
¶2605. Appellant’s girlfriend testified that, during this conversation, she
¶261heard Appellant tell his little brother to “scoot over in the bed.” She
¶262added that she did not hear any background noise during the
¶263conversation and that Appellant did not mention anything about
¶264planning a robbery. According to Appellant’s girlfriend, Appellant
¶265fell asleep several times during their conversation. She also testified
¶266that Appellant called her back at 4:06 a.m. that same morning and
¶267told her that someone in the neighborhood had been shot. Appellant
¶268 16 “sounded like he had just [woken] up, like he had been asleep.”
¶269According to Appellant’s girlfriend, he did not appear to be out of
¶270breath or “sound as though he had been running.”
¶271 1. Appellant claims that the evidence is insufficient to support
¶272his convictions because he was not “competently identified” as one
¶273of the assailants. However, the evidence establishing Appellant’s
¶274identification as a participant in the crimes was sufficient. That
¶275evidence included testimony from a co-indictee and two victims that
¶276Appellant entered the victims’ house with a handgun and
¶277participated in the crimes committed therein. It also included
¶278evidence that contradicted the version of events that Appellant
¶279initially gave to law enforcement officials regarding his activities on
¶280the night of the crimes. This evidence, viewed in the light most
¶281favorable to the verdicts, was clearly sufficient as a matter of
¶282constitutional due process to authorize a rational jury to conclude
¶283that Appellant participated in the crimes committed at the victims’
¶284house. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61
¶285LE2d 560) (1979); Ward v. State, 316 Ga. 295, 298 (888 SE2d 75)
¶286 17 (2023) (explaining that “the testimony of a single witness is
¶287generally sufficient to establish a fact” (cleaned up)). Although
¶288Appellant claims that the identifications of him were not reliable, it
¶289was for the jury to resolve “conflicts or inconsistencies in the
¶290evidence, credibility of witnesses, and reasonable inferences to be
¶291derived from the facts.” Graham v. State, 313 Ga. 436, 440 (870 SE2d
¶292424) (2022) (cleaned up).
¶293 2. Relying solely on the non-binding, solo concurrence by
¶294Justice Stevens in Ball v. United States, 470 U.S. 856, 867-868 (105
¶295SCt 1668, 84 LE2d 740) (1985), Appellant argues that double
¶296jeopardy concerns prohibited his prosecution on the multi-count or
¶297“multiplicitous” indictment in this case. This claim, however, is
¶298without merit. First, the majority in Ball explained that “even where
¶299the [Double Jeopardy] Clause bars cumulative punishment for a
¶300group of offenses, the Clause does not prohibit the State from
¶301prosecuting the defendant for such multiple offenses in a single
¶302prosecution.” Id. at 860 n.7 (cleaned up). Similarly, we have held
¶303that the “procedural protections against double jeopardy apply only
¶304 18 to ‘multiple prosecutions,’ meaning multiple or successive
¶305indictments or criminal proceedings” and “do not apply to a single
¶306indictment that contains multiple counts.” Williams v. State, 307
¶307Ga. 778, 779 (838 SE2d 235) (2020) (cleaned up). For these reasons,
¶308this claim fails.3
¶309 3. Appellant contends that the trial court erred in not
¶310permitting the jury to have access to a transcript of an interview of
¶311Johnson by law enforcement officials as a past recollection
¶312recorded. 4 However, at trial, Appellant contended only that the jury
¶313 3 As part of his argument in the enumeration concerning the indictment,
¶314Appellant raises an issue about the trial court’s response to a jury question. During its deliberations, the jury asked the trial court whether, with regard to the tampering with evidence count of the indictment, the State had to prove that Appellant “was the one who physically had possession of the shotgun and was the one who disposed of the weapon.” The trial court answered “no” to this jury question, and Appellant contends that the answer was an abuse of discretion. However, Appellant affirmatively waived this issue by agreeing that the correct answer to the jury’s question was “no.” See Hughes v. State, 310 Ga. 453, 457 (851 SE2d 580) (2020) (appellant affirmatively waived any error in answering the jury’s questions on the issue of proximate cause when he “agreed that re-reading the indictment was the appropriate means to answer the jury’s questions”).
¶315 4 Appellant contended that the transcript should either be read to the
¶316jury or given to them to review in the jury box. He did not seek to have the jury take the transcript to the jury room. The transcript of Johnson’s interview was not introduced into evidence at trial. 19 should have access to a short written statement that Johnson gave
¶317to the police, not that the jury should be given access to the
¶318transcript of Johnson’s interview. There is therefore no ruling by the
¶319trial court on an evidentiary issue regarding the transcript of
¶320Johnson’s interview. Because this case was tried in 2012 under our
¶321former Evidence Code, plain error review of the evidentiary claim
¶322that the trial court erred in not granting the jury access to the
¶323transcript of Johnson’s interview is not available. See Pyatt v. State,
¶324298 Ga. 742, 746 n.7 (784 SE2d 759) (2016) (explaining that plain
¶325error review under our current Evidence Code “applies only to any
¶326motion made or hearing or trial commenced on or after January 1,
¶3272013” (cleaned up)). Moreover, under the former Evidence Code,
¶328because Appellant did not seek at trial to have the jury be given
¶329access to the transcript of the interview, any error in denying his
¶330request to give the jury access to it is not preserved for appeal. See
¶331Rucker v. State, 293 Ga. 116, 121-122 (744 SE2d 36) (2013) (holding,
¶332in a case under the former Evidence Code, that a claim that the trial
¶333court erred in not permitting the introduction of certain evidence
¶334 20 was not preserved for review because the defendant did not seek to
¶335introduce the evidence during trial).
¶336 4. Appellant contends that the trial court erred in denying his
¶337motion to suppress the pretrial and trial identifications by Johnson,
¶338Holmes, and Smith. More specifically, Appellant contends that the
¶339identifications were the result of impermissibly suggestive
¶340procedures and thus violated his right to due process. We conclude
¶341that these claims fail. 5
¶342 (a) First, Appellant raised no objection at trial to Smith’s
¶343identification of Appellant as one of the perpetrators. Appellant’s
¶344challenge to Smith’s testimony is therefore not preserved for review.
¶345See Lane v. State, 312 Ga. 619, 622 (864 SE2d 34) (2021) (explaining
¶346that “in the absence of a timely objection, there is no appellate
¶347review of evidentiary rulings under the old Evidence Code” (cleaned
¶348 5 We note that, with the adoption of OCGA §§ 17-20-1 through 17-20-3,
¶349“the Georgia General Assembly has prioritized improving the accuracy of eyewitness identifications.” Curry v. State, 305 Ga. 73, 76 n.3 (823 SE2d 758) (2019). These provisions, however, did not become effective until July 1, 2016, after the trial of this case.
¶350 21 up)).
¶351 (b) Appellant sought to suppress Johnson’s in-court
¶352identification of him on the ground that Johnson’s identification was
¶353the result of an impermissibly suggestive process because Holmes
¶354told Johnson that Appellant was one of the gunmen. 6 In this regard,
¶355at trial, when Johnson was asked on cross-examination whether he
¶356remembered telling law enforcement officials during his second
¶357interview that Holmes told him that Appellant was the “guy” behind
¶358Spinks during the crimes, Johnson testified, “yeah, he told me. We
¶359talked about it. . . . But he didn’t say, like—you know, it wasn’t no,
¶360like, I didn’t know who it was.” However, the due process principles
¶361on which Appellant relies, as explained by such cases as Neil v.
¶362Biggers, 409 U.S. 188 (93 SCt 375, 34 LE2d 401) (1972), and
¶363Simmons v. United States, 390 U.S. 377, 384 (88 SCt 967, 19 LE2d
¶3641247) (1968), apply only when the suggestive circumstances leading
¶365 6 At the hearing on the motion to suppress, Johnson testified that he was
¶366never shown any lineup by law enforcement officials. «T4. 114-115» No other evidence was offered on this point. In addition, there was no evidence offered at trial of any pretrial identification of Appellant by Johnson. 22 to an identification are arranged or orchestrated by law enforcement
¶367officials. See Perry v. New Hampshire, 565 U.S. 228, 232-233 (132
¶368SCt 716, 181 LE2d 694) (2012) (explaining that “we have not
¶369extended pretrial screening for reliability to cases in which the
¶370suggestive circumstances were not arranged by law enforcement
¶371officers”; that “our decisions . . . turn on the presence of state action
¶372and aim to deter police from rigging identification procedures, for
¶373example, at a lineup, showup, or photograph array”; and that “when
¶374no improper law enforcement activity is involved, we hold, it suffices
¶375to test reliability through the rights and opportunities generally
¶376designed for that purpose, notably, the presence of counsel at post-
¶377indictment lineups, vigorous cross-examination, protective rules of
¶378evidence, and jury instructions on both the fallibility of eyewitness
¶379identification and the requirement that guilt be proved beyond a
¶380reasonable doubt” (cleaned up)); Morrall v. State, 307 Ga. 444, 449
¶381(836 SE2d 92) (2019) (quoting the foregoing principles from Perry).
¶382See also Clay v. State, 309 Ga. 593, 598 (847 SE2d 530) (2020)
¶383(holding that, where a witness identified the defendant in a photo
¶384 23 array after seeing a news report of the defendant’s arrest, the
¶385defendant could not challenge the witness’s identification based on
¶386the foregoing due process principles because the defendant was not
¶387“challenging the identification procedure used by law enforcement,
¶388but, instead, is challenging the weight and credibility of [the
¶389witness’s] identification,” matters that were reserved for the jury).
¶390For the foregoing reasons, we conclude that the trial court did not
¶391err in denying Appellant’s motion to suppress Johnson’s
¶392identification testimony.
¶393 (c) In contrast, Appellant’s claim regarding Holmes’s
¶394identification testimony implicates due process concerns because the
¶395record shows that, at Holmes’s interview with law enforcement
¶396officials on the morning of the crimes, he identified Appellant as
¶397being involved in the crimes after law enforcement officials showed
¶398Holmes a single photo of Appellant.
¶399 “If an out-of-court identification by a witness is so
¶400impermissibly suggestive that it could result in a substantial
¶401likelihood of misidentification, evidence of that out-of-court
¶402 24 identification violates due process and is inadmissible at trial.”
¶403Lewis v. State, 314 Ga. 654, 662 (878 SE2d 467) (2022) (cleaned up).
¶404We employ “a two-step process in examining a trial court’s
¶405admission of identification evidence for error,” first deciding
¶406“whether the identification procedure used was impermissibly
¶407suggestive.” Id. (cleaned up). “An identification procedure is not
¶408impermissibly suggestive unless it leads the witness to the virtually
¶409inevitable identification of the defendant as the perpetrator, and is
¶410the equivalent of the authorities telling the witness, ‘This is our
¶411suspect.’” Id. (cleaned up). “Second, if a trial court properly concludes
¶412that the State employed an impermissibly suggestive pre-trial
¶413identification procedure, the issue becomes whether, considering the
¶414totality of the circumstances, there was a substantial likelihood of
¶415irreparable misidentification.” Id. (cleaned up). If there is not a
¶416substantial likelihood of irreparable misidentification, “then both
¶417the pre-trial and in-court identifications are admissible.” Curry v.
¶418State, 305 Ga. 73, 76 (823 SE2d 758) (2019) (cleaned up). We
¶419consider the “totality of the circumstances” in determining whether
¶420 25 there is a substantial likelihood of irreparable misidentification. See
¶421Howard v. State, ___ Ga. ___, ___ (899 SE2d 669, 677) (2024).
¶422 Factors to consider include (1) a 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; and (5) the length of time between the crime and the confrontation.
¶423Id. 7 “Moreover, whether the witness knows the defendant is a
¶424critical factor in determining the reliability of an identification.”
¶425 7 In two recent cases, we have noted that there is tension between the
¶426“level-of-certainty” aspect of the due process test for determining the likelihood of misidentification and our holding in Brodes v. State, 279 Ga. 435 (614 SE2d 766) (2005), that trial courts should “refrain from informing jurors [that] they may consider a witness’s level of certainty when instructing them on the factors that may be considered in deciding the reliability of that identification.” Id. at 442. See State v. Harris, 316 Ga. 272, 281 n.12 (888 SE2d 50) (2023); Pearson v. State, 311 Ga. 26, 29 n.5 (855 SE2d 606) (2021). In Harris, we explained that
¶427 [w]hile it seems incompatible that a trial judge should consider the witness’s level of certainty when determining the likelihood of misidentification but the jury may not be instructed to consider the witness’s level of certainty when determining the reliability of the identification, no one has asked us to reconsider our decision in Brodes, and the trial court’s consideration of this factor is expressly sanctioned under U.S. Supreme Court precedent, see Neil v. Biggers, 409 U.S. 188, 199 (93 SCt 375, 34 LE2d 401) (1972).
¶428316 Ga. at 281 n.12.
¶429 26 Lewis, 314 Ga. at 670 (cleaned up). “We review a trial court’s ruling
¶430on a motion to suppress identification evidence for an abuse of
¶431discretion,” State v. Harris, 316 Ga. 272, 280 (888 SE2d 50) (2023),
¶432and in reviewing a ruling on such a motion, “evidence is construed
¶433most favorably to uphold the findings and judgment and the trial
¶434court’s findings on disputed facts and credibility must be accepted
¶435unless clearly erroneous.” Wright v. State, 294 Ga. 798, 801 (756
¶436SE2d 513) (2014) (cleaned up). Finally, “in determining whether the
¶437trial court erred in denying the motion to suppress identification
¶438testimony, this court may consider the evidence adduced both at the
¶439suppression hearing and at trial.” Id. at 802 (cleaned up).
¶440 At trial, Lieutenant Moltrum and Agent Ingalls testified that
¶441they conducted an interview with Holmes at 6:11 a.m. on December
¶4425, about two hours after the crimes. They added that Holmes
¶443identified a man he referred to as “Kevian’s cousin” as being the
¶444perpetrator with the shotgun, but that Holmes said “not really”
¶445when asked if he could identify the second perpetrator who entered
¶446 27 the house with a handgun. 8 Because Lieutenant Moltrum had heard
¶447officers at the crime scene discussing names like “Lekievius Collier,”
¶448“Kevius,” and “Lekievius Eleby,” and because Lieutenant Moltrum
¶449knew a “Kelius Collier,” as well as Appellant, he asked Holmes about
¶450“Kevian,” such as where he lived. Lieutenant Moltrum asked
¶451Holmes if “Kevian” lived three or four houses away from the victims,
¶452and Holmes said that he did. Lieutenant Moltrum knew that
¶453Appellant lived at that location, and he showed Holmes a copy of
¶454Appellant’s driver’s license. Holmes recognized the picture on the
¶455driver’s license and identified the person depicted as “Kevian” and
¶456said that he was the second intruder. The trial court did not address
¶457whether the use of a single photo for identification was
¶458impermissibly suggestive, but skipped to the second part of the due
¶459process test, ruling that there was not a substantial likelihood of
¶460irreparable misidentification. We conclude that, even assuming that
¶461showing Holmes the driver’s license photograph was impermissibly
¶462 8 At the pretrial hearing and at trial, Holmes denied that he initially said
¶463that he could identify the second intruder.
¶464 28 suggestive, the trial court did not abuse its discretion in ruling that
¶465there was not a substantial likelihood of irreparable
¶466misidentification.
¶467 Here, the evidence indicates that the likelihood of irreparable
¶468misidentification was low. Holmes had an ample opportunity to view
¶469the perpetrator at the crime scene. In this regard, Holmes testified
¶470that, at the time of the crimes, a light was on that “really shined into
¶471the living room” where he was sitting when the intruders came into
¶472the house. Holmes added that he was close enough to touch
¶473Appellant and Spinks during the crimes, that Appellant
¶474accompanied Holmes to Johnson’s bedroom to look for items to take,
¶475and that the crimes lasted about seven minutes. Moreover, Holmes
¶476had become personally acquainted with Appellant before the crimes
¶477and testified that, during the crimes, he was able to see Appellant’s
¶478face and recognized his voice when Appellant spoke. In addition,
¶479Holmes testified that, during the crimes, he was “paying attention”
¶480to the people at the door and to the “people who took me to the back”
¶481of the house, and he remained certain in his identification of
¶482 29 Appellant as being one of the assailants. Holmes also testified that
¶483being shown the photograph of Appellant did not change his “mind
¶484in anyway [sic],” as he knew from the crime scene “who had come in
¶485the house.” Finally, there was only a very short time—about two
¶486hours—between the time that Holmes saw Appellant during the
¶487crimes and the identification. Considering the totality of the
¶488circumstances, we conclude that, even though Holmes failed to
¶489initially identify Appellant when speaking to law enforcement
¶490officials, the trial court did not abuse its discretion in ruling that the
¶491presentation of a single photo to Holmes did not create a substantial
¶492likelihood of irreparable misidentification. See Howard, ___ Ga. at
¶493___ (899 SE2d at 677-678) (holding that an initial photo array that
¶494we assumed was impermissibly suggestive did not lead to
¶495substantial likelihood of misidentification even where a witness who
¶496had not met the defendant before the day of the shooting and who
¶497was uncertain in identifying the defendant in the initial photo array
¶498had “a significant opportunity to view [the defendant] before and
¶499during the shooting” and identified the defendant with certainty in
¶500 30 a second photo array); Harris, 316 Ga. at 281 (explaining that “if the
¶501witness was acquainted or otherwise personally familiar with the
¶502suspect before making an out-of-court identification, then there is
¶503not a substantial likelihood of misidentification regardless of an
¶504impermissibly suggestive procedure” (cleaned up)); Pearson v. State,
¶505311 Ga. 26, 30 (855 SE2d 606) (2021) (holding that there was no
¶506substantial likelihood of misidentification where the witnesses had
¶507a good opportunity to view the perpetrator during the crime, “paid
¶508attention to him at that time,” expressed certainty in their
¶509identifications, and the showup occurred shortly after the crimes);
¶510Wright, 294 Ga. at 800, 802-803 (rejecting argument that a witness’s
¶511in-court identification should have been excluded for substantial
¶512likelihood of irreparable misidentification where the witness was
¶513unable to select defendant definitively from a photo array but
¶514testified that his later identification “was based on remembering
¶515[the defendant] from the scene of the crime”).
¶516 5. Appellant contends that the trial court committed plain
¶517error when it allowed Agent Ingalls to testify about her
¶518 31 understanding of the meaning of various text messages introduced
¶519into evidence. However, because this case was tried under our
¶520former Evidence Code, plain error review of this evidentiary claim
¶521is not available. See Lane, 312 Ga. at 622. Moreover, under our
¶522former Evidence Code, the claim is not preserved for review because
¶523Appellant did not object to the testimony in question. See Id.
¶524(explaining that under the former Evidence Code, “in the absence of
¶525a timely objection, there is no appellate review of evidentiary
¶526rulings”).
¶527 6. Appellant contends that the trial court made several errors
¶528in sentencing him. We agree with one of Appellant’s claims, and we
¶529have identified one merger error in Appellant’s sentencing that
¶530requires correction.
¶531 Appellant contends that the trial court erred in failing to merge
¶532the aggravated assaults of Holmes and Johnson with the armed
¶533robbery conviction. At the outset, we note that the trial court erred
¶534in sentencing Appellant on the armed robbery count. Because the
¶535armed robbery served as the underlying felony for the felony murder
¶536 32 conviction on which Appellant was sentenced, the conviction and
¶537sentence for armed robbery must be vacated. See Ruff v. State, 314
¶538Ga. 386, 389 (877 SE2d 239) (2022) (where a defendant is “found
¶539guilty only of felony murder, the underlying felony would certainly
¶540be deemed to have merged, as a matter of law, into the felony murder
¶541and a separate sentence for that underlying felony would not be
¶542authorized” (cleaned up)). However, “the same merger analysis
¶543applies in determining whether the . . . aggravated assault merged
¶544into either the armed robbery conviction or the felony murder
¶545predicated on that armed robbery.” Hood v. State, 309 Ga. 493, 503
¶546n.9 (847 SE2d 172) (2020) (cleaned up). In this regard, we have held
¶547that “because there is no element of aggravated assault with a
¶548deadly weapon that is not contained in armed robbery, that form of
¶549aggravated assault will merge into armed robbery if the crimes are
¶550part of the same act or transaction.” Id. at 502-503 (cleaned up).
¶551However, “where one crime is completed before another crime, the
¶552‘same conduct’ does not establish the commission of both offenses.”
¶553Jackson v. State, 318 Ga. 393, 411 (897 SE2d 785) (2024) (cleaned
¶554 33 up). Here, the aggravated assaults of Holmes and Johnson were
¶555completed once Appellant and Spinks entered the house and pointed
¶556their guns at Holmes and Johnson, and the armed robbery was
¶557based on Appellant and Spinks subsequently taking the victims to
¶558bedrooms in the back of the house and taking a purse from one of
¶559the bedrooms. Under these circumstances, the aggravated assaults
¶560do not merge with the armed robbery conviction. See Thomas v.
¶561State, 289 Ga. 877, 878-881 (717 SE2d 187) (2011) (holding that
¶562where the defendant committed an armed robbery against the
¶563victim in the music room of an apartment, but where the victim was
¶564subsequently forced into a nearby bathroom and the defendant
¶565committed an aggravated assault against the victim in the
¶566bathroom, the conviction for aggravated assault did not merge with
¶567the conviction for armed robbery because “although the conviction
¶568for the armed robbery of [the victim] also resulted from the music-
¶569room holdup, the conviction for his aggravated assault was based on
¶570Appellant’s forcing the shotgun down his throat later in the
¶571bathroom, as the indictment clearly specified”). Cf. Womac v. State,
¶572 34 302 Ga. 681, 681-682, 684-685 (808 SE2d 709) (2017) (holding that
¶573where the evidence showed that the defendant committed an
¶574aggravated sexual battery against a minor on the bed of a motel
¶575room, causing the victim to run into the bathroom, where the
¶576defendant committed other crimes, the aggravated sexual battery
¶577did not merge with the other crimes under Drinkard v. Walker, 281
¶578Ga. 211 (636 SE2d 530) (2006), because it was completed before the
¶579other crimes were committed).
¶580 In addition, contrary to Appellant’s contention, the trial court
¶581did not err in sentencing Appellant for the separate assaults of
¶582Holmes and Johnson, as those counts do not merge with each other.
¶583See Sillah v. State, 315 Ga. 741, 758 (883 SE2d 756) (2023) (“If
¶584crimes are committed against different victims . . . , they do not
¶585merge.”). Finally, Appellant correctly claims (and the State
¶586concedes) that the trial court should have merged the offense of
¶587conspiracy to commit armed robbery with the conviction for felony
¶588murder predicated on armed robbery. See OCGA § 16-4-8.1 (a
¶589“person may not be convicted of both conspiracy to commit a crime
¶590 35 and the completed crime”); Simmons v. State, 314 Ga. 883, 893 (880
¶591SE2d 125) (2022) (explaining that “the trial court properly merged
¶592the count[] alleging conspiracy to commit aggravated assault [of the
¶593victim] . . . into the felony murder conviction predicated on
¶594aggravated assault [of the victim]” (cleaned up)).
¶595 7. Appellant claims that the prosecutor made several improper
¶596arguments in closing. In particular, Appellant complains that the
¶597prosecutor referred to him as a “drug dealer.” Appellant, however,
¶598did not object to any part of the prosecutor’s closing argument. His
¶599claim is therefore not preserved for review. See Poellnitz v. State,
¶600296 Ga. 134, 136 (765 SE2d 343) (2014) (holding that the defendant’s
¶601contention that the prosecutor made improper remarks during
¶602closing argument was not preserved for review because of the failure
¶603to make a contemporaneous objection).
¶604 8. Appellant contends that his trial counsel provided
¶605constitutionally ineffective assistance by failing to object when
¶606Agent Ingalls testified as to her interpretation of certain text
¶607messages and when the State introduced autopsy photographs that
¶608 36 he contends were gruesome and prejudicial. However, Appellant did
¶609not raise either of these claims in his motion for new trial or in his
¶610amended motion, where he was represented by appellate counsel.
¶611He also did not raise them at the hearing on his motion for new trial,
¶612and the trial court did not rule on the claims. Accordingly, he has
¶613not preserved these claims of ineffective assistance of trial counsel
¶614for review. See, e.g., Allen v. State, 317 Ga. 1, 12-13 (890 SE2d 700)
¶615(2023) (explaining that “ineffectiveness claims must be raised and
¶616pursued at the earliest practicable moment, which for a claim of
¶617ineffective assistance of trial counsel is at the motion for new trial
¶618stage if the defendant is no longer represented by the attorney who
¶619represented him at trial” and holding that appellant did not
¶620preserve for review a claim of ineffective assistance where he failed
¶621to raise the claim in his initial motion for new trial or the
¶622amendment or during the hearing on the motion for new trial, and
¶623the trial court did not address the claim in its order denying the
¶624motion for new trial (cleaned up)).
¶625 Judgment affirmed in part and vacated in part. All the Justices
¶626 37 concur.
¶627 38