Singleton v. State

FINAL COPY

               S24A1357. SINGLETON v. THE STATE.


      COLVIN, Justice.

      Appellant Raiem Singleton appeals his convictions for malice

murder and other crimes related to the shooting death of Luz Selene

Velazquez and the aggravated assault of David Montes-Ponce.1 On

appeal, Appellant argues that the trial court abused its discretion



      1 The crimes occurred on May 5, 2017. On August 3, 2017, a DeKalb

County grand jury indicted Appellant for malice murder (Count 1), felony
murder (Count 2), the aggravated assaults of Velazquez and Montes-Ponce
(Counts 3 and 4, respectively), and possession of a firearm during the
commission of a felony (Count 5).
      Following a jury trial which was held from February 5, 2018, through
February 9, 2018, the jury found Appellant guilty on all counts. The trial court
sentenced Appellant to life in prison for malice murder (Count 1), vacated
Appellant’s felony murder charge (Count 2) by operation of law, and merged
Appellant’s charge for aggravated assault of Velazquez (Count 3) into Count 1.
The trial court sentenced Appellant to 15 years in prison for the aggravated
assault of Montes-Ponce (Count 4), to run concurrently with Count 1, and five
years for possession of a firearm during the commission of a felony (Count 5),
but the court suspended this sentence.
      On March 20, 2018, Appellant moved for a new trial. Appellant then filed
a series of amended motions for new trial with different counsel, concluding
with his fourth amended motion for new trial on September 22, 2023. Following
a hearing on March 27, 2024, the trial court denied Appellant’s motion, as
amended, on April 11, 2024. Appellant filed a timely notice of appeal on May
13, 2024. Appellant’s appeal was docketed to the August 2024 term and was
submitted for a decision on the briefs.
by denying his motion to suppress identification evidence arising

from a photo lineup in which Montes-Ponce selected Appellant’s

photograph. For the reasons below, we affirm.

     1. The trial evidence showed the following. On May 5, 2017,

Montes-Ponce and his wife, Velazquez, used a mobile phone

application to shop for phones posted for sale by individuals in their

area. After identifying a suitable phone, Montes-Ponce messaged a

seller whose username was “Tom Li” to arrange a meeting to

purchase the seller’s iPhone. The Tom Li account provided

Montes-Ponce with an address to an apartment complex in DeKalb

County.

     When Montes-Ponce and his wife arrived at the address,

Montes-Ponce messaged the Tom Li account, and the seller came out

of the apartment building. Two other men accompanied the seller

outside. Montes-Ponce and the seller continued to message each

other, and Montes-Ponce could see the seller typing on his phone.

Though it was getting dark, there was still enough light for

Montes-Ponce to see the seller’s face. Montes-Ponce got out of his car

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and approached the three men near the steps to the apartment

building. Montes-Ponce asked to see the phone, but it would not turn

on when the seller showed it to him. According to Montes-Ponce, the

seller then said, “I’m not going to rob you or do any harm to you,”

and shook his hand. Montes-Ponce walked back to the car where

Velazquez was waiting, and she told him that they should leave if

the phone did not work. The seller then offered to see if he had a

charger on site and ran upstairs to retrieve it.

     According to Montes-Ponce, when the seller came back down

the stairs, he asked Montes-Ponce to wait for his “brother” who was

on his way with the charger. Instead, Montes-Ponce walked back to

his car and started it, only to be followed by the seller and one of the

other two men with him. The two men approached the driver-side

window of the car where Montes-Ponce was sitting. The seller

attempted to force the door open before stepping back and firing a

gun toward Montes-Ponce’s car.

     In describing the shooting, Montes-Ponce said that it was as if

“time had stood still,” and he recalled seeing the “light” from the

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gunshot. Montes-Ponce heard his window shatter, pushed his wife

back toward her seat, and quickly put his car in reverse to leave

when his wife told him that she had been shot. All three men fled

from the scene, but Montes-Ponce did not see where they went.

     Velazquez died shortly after, and at trial, Montes-Ponce

identified Appellant as the seller who fired the shots. Jakerius

Henry — who was friends with Appellant at the time of the shooting

— testified that he was one of the two people with Appellant at the

apartment complex on the evening of the crime, and that he

witnessed Appellant draw a gun and shoot through Montes-Ponce’s

car window.

     After the shooting, Montes-Ponce told personnel with the

DeKalb County Police Department that he had communicated with

the seller through a mobile phone application, prompting the

department to subpoena the application’s company for records

related to the Tom Li account and an associated phone number the

account had provided Montes-Ponce. An investigator from the

company connected the Tom Li account to the names “Raiem”—

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Appellant’s first name — and “Jamel Harris.”

        With information from the company’s investigation, the police

department came to the belief that Harris owned the phone number

that was given to Montes-Ponce by the Tom Li account. A photo

lineup with Harris’s picture was presented to Montes-Ponce;

Montes-Ponce selected Harris’s photograph, identifying him as one

of the three men present at the scene; and an arrest warrant was

obtained for Harris.

     Authorities found Harris, Appellant, Henry, and a fourth

person in an abandoned house on May 8, 2017. Appellant was

arrested that same day, denied bond on July 5, 2017, and indicted

by a grand jury on August 3, 2017. But Montes-Ponce was not shown

a photo lineup containing Appellant’s picture until September 18,

2017.

     2. Appellant contends that the trial court erred in denying his

motion to suppress the identification evidence. We disagree.

     “This Court employs a two-step process in examining a trial

court’s admission of identification evidence for error.” Bowen v.

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State, 

 (4) (

) (2016). Under the first

step, we consider whether “the identification procedure used was

impermissibly suggestive.” 

 An identification procedure is

impermissibly suggestive when it “is the equivalent of the

authorities telling the witness, ‘[t]his is our suspect.’” Westbrook v.

State, 

 (4) (

) (2020) (citation and

punctuation omitted). If we conclude that the lineup was

impermissibly suggestive, we move to the second step, which is to

determine “whether there was a substantial likelihood of

irreparable misidentification of the defendant in light of the totality

of the circumstances.” Bowen, 

 (4). We consider

several factors when deciding whether there was a substantial

likelihood of irreparable misidentification, including:

     (1) a witness’ opportunity to view the accused at the time
     of the crime; (2) the witness’ degree of attention; (3) the
     accuracy of the witness’ prior description of the accused;
     (4) the witness’ level of certainty at the confrontation; and
     (5) the length of time between the crime and the
     confrontation.

Wright v. State, 

 (2) (

) (2014)


                                  6
(citation and punctuation omitted). Ultimately, even if an

identification procedure is impermissibly suggestive under the first

step, identification evidence should only be suppressed if there is “a

substantial likelihood of irreparable misidentification.” Newton v.

State, 

 (2) (

) (2020) (holding that the

trial court did not err in denying a motion to suppress where, “[e]ven

assuming that the photographic array was unduly suggestive, [the

appellant] fail[ed] to show that there was a substantial likelihood of

irreparable misidentification”).

     On appeal, “[w]e review a trial court’s determination that a

lineup was not impermissibly suggestive for an abuse of discretion.”

Westbrook, 

 (4). “[W]e construe the evidentiary record

in the light most favorable to the factual findings and judgment of

the trial court.” State v. Hinton, 

 (

)

(2020). And we “generally . . . accept the trial court’s factual findings

unless they are clearly erroneous.” Westbrook, 

 (2)

(citation and punctuation omitted). “In determining whether the

trial court erred in denying the motion to suppress identification

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testimony, this court may consider the evidence adduced both at the

suppression hearing and at trial.” Clark v. State, 

(4) (

) (2005) (citation and punctuation omitted).

     Evidence presented at the motion to suppress hearing showed

the following. Sandra Trejos-Roman was employed with the DeKalb

County District Attorney’s Office and was tasked to support

Montes-Ponce throughout the legal process and serve as his

English-to-Spanish interpreter as he was primarily a Spanish

speaker.   Trejos-Roman    testified   that   she   first   met   with

Montes-Ponce outside of a courtroom in May 2017 and that she

spoke with Montes-Ponce several other times by phone after their

initial in-person meeting, including on June 16 and June 20, 2017.

On June 16, Trejos-Roman informed Montes-Ponce that a bond

hearing was being set for June 23, and Montes-Ponce expressed his

intent to attend. Trejos-Roman testified that the two spoke again on

June 20, 2017. Montes-Ponce then informed Trejos-Roman that he

had been notified by a victim’s notification program — which the

District Attorney’s Office had registered him for — that Jakerius

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Henry was being released. Montes-Ponce also restated his intent to

attend the bond hearing scheduled for June 23. Appellant’s bond

hearing was ultimately rescheduled for July 5 of that year.

Trejos-Roman did not attend the July 5 hearing and consequently

did not know whether Montes-Ponce or any of his family were

present, but she did call Montes-Ponce over the phone later that day

to inform him of what happened at the hearing, based on

information she received from the assistant district attorney who

was there.

     Investigator Randolph with the DeKalb County District

Attorney’s Office composed the lineup with Appellant’s picture and

presented it to Montes-Ponce more than two months after

Appellant’s bond hearing. In recounting what occurred, Investigator

Randolph and Trejos-Roman, who was also present for the lineup,

initially gave conflicting testimony as to how Montes-Ponce

identified Appellant’s photograph. Investigator Randolph testified

that Montes-Ponce stated, “You only have the person that shot my

wife. This is the shooter. You do not have the two guys that were

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with him. I don’t see these two guys in the photos.” Contrarily,

Trejos-Roman initially testified that Montes-Ponce identified

Appellant by simply saying, “es este,” meaning, “it’s this one.” But

she eventually testified that she could not remember whether

Montes-Ponce specifically said that Appellant was the shooter. At

the conclusion of their testimonies, the trial court said that there

were “issues” with Trejos-Roman’s credibility. Trial counsel was

offered the opportunity to call Montes-Ponce to the witness stand

but declined. The trial court then denied Appellant’s motion to

suppress the identification evidence and rejected trial counsel’s

subsequent attempts to call the witness.

     At trial, Montes-Ponce identified Appellant in court and

testified about what occurred at the photo lineup, including that he

wrote on Appellant’s picture from the lineup, “He fired at my wife

the day of the incident.” But neither the prosecution nor trial counsel

pressed Montes-Ponce on the issue of whether he saw Appellant at

a hearing or knew of Appellant’s name before the lineup. On the first

day of trial, Montes-Ponce testified that he did “attend one court

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hearing,” but that he was present for only “five minutes” and “no one

told [him] anything.” Counsel did not ask follow-up questions

regarding what day Montes-Ponce was in court for the hearing or

whether he saw Appellant while there. On the second day of trial,

Montes-Ponce was asked whether the first day of trial was the first

time he had seen Appellant since the crime. Montes-Ponce

responded, “I saw him the day of my wife’s murder and today and

twice from yesterday and today as well.” Neither the prosecution nor

trial counsel asked Montes-Ponce to clarify his answer.

     (a) Appellant makes several arguments as to why the photo-

lineup procedure was impermissibly suggestive. But pretermitting

whether the photo-lineup procedure was impermissibly suggestive,

Appellant has not shown that there was a substantial likelihood of

irreparable misidentification. Montes-Ponce had a significant

opportunity to view Appellant at the time of the crime. He testified

that there was still some daylight left when he met with Appellant

on the day of the shooting; that the two held a brief conversation and

shook each other’s hand; and that he had five minutes to look at

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Appellant and the other two men’s faces. Moreover, Montes-Ponce

remembered the incident in detail, testifying that he saw the flash

coming from the gun because it was as if “time . . . stood still” for

him. See Wright, 

 (2) (holding that there was not a

substantial likelihood of irreparable misidentification where the

evidence showed that the witness who identified the appellant from

a lineup “had a sufficient opportunity to observe [the appellant] as

[the appellant] got out of [a] car, approached [the witness’s] car,

[and] spoke to [the witness] for approximately fifteen seconds” at an

arm’s length distance moments before the witness saw the appellant

pull an assault rifle trigger and saw a flash coming from the muzzle);

Semple v. State, 

 (2) (

) (1999) (holding

that “even if” the identification procedure was impermissibly

suggestive because the witness saw the appellant’s picture on

television and saw the appellant with his counsel at a pretrial

hearing prior to making an in-court identification, the trial court did

not err in denying’s the appellant’s motion to suppress because there

was no substantial likelihood of irreparable misidentification, given

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that the “crimes occurred under a street light,” the witness “saw

them from a distance sufficient for reasonable acuity,” and the

witness also “observe[d] [the appellant] as [the appellant] ran

towards him”).

     And though months had passed between the day of the crime

and the photo lineup, evidence shows that Montes-Ponce professed

a high degree of certainty in his selection. See Wright, 

 (2) (noting that a factor for consideration upon deciding on

whether there exists a substantial likelihood of irreparable

misidentification is “the witness’ level of certainty at the

confrontation” and that the witness’s “95 percent certain[ty]” that

the appellant was the shooter was one of several factors supporting

the trial court’s decision to deny the appellant’s motion to suppress).

Investigator Randolph testified at the motion to suppress hearing

that, after selecting Appellant’s photograph, Montes-Ponce said that

he would “never forget it.” And likewise, at trial, Montes-Ponce

testified that he would “never forget what happened.” See Howard

v. State, 

 (2) (

) (2024) (considering

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and giving significant weight to the certainty of the person who

identified the defendant, while also giving great weight to the

amount of time spent with that person before the crimes).

     Appellant argues the trial court erred in admitting the

identification evidence because the State was left “without proof”

that Montes-Ponce identified Appellant as the shooter, “rather than

as one of the other individuals present at the scene,” because of

“contradictions” between the testimony of Trejos-Roman and

Investigator Randolph. Regardless of whether there was any

inconsistency in the testimony of Trejos-Roman and Investigator

Randolph, trial evidence showed that Montes-Ponce wrote on

Appellant’s photograph during the lineup, in Spanish, “He fired at

my wife the day of the incident.” Accordingly, Appellant’s argument

that the State lacked proof that Montes-Ponce identified Appellant

as the shooter fails.

     For these reasons, the trial court did not abuse its discretion in

denying the motion to suppress the identification evidence.

     (b) At the end of his brief, Appellant briefly asserts that “the

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trial court abused its discretion” when it “reneged” on its initial

conclusion that the State failed to “meet its burden” to show that the

photo lineup was not impermissibly suggestive and “then refused to

allow [Appellant’s] counsel to call Mr. Montes-Ponce” at the motion

to suppress hearing. This claim fails. To the extent that Appellant

contends that the trial court abused its discretion by “reneg[ing]” on

an evidentiary ruling, he is incorrect. Given that a trial court retains

the authority to revisit a ruling such as this at least until the end of

the term in which the ruling was made, it retains the authority to

revisit a ruling on the same day, as was done here. Thomas v. State,

 (2) (

) (2024) (“Subject to certain

exceptions . . . we have said that the end-of-term rule limits a trial

court’s inherent power to revoke interlocutory rulings in criminal

cases to the end of the term in which the ruling was entered.”

(citation and punctuation omitted)).2 And Appellant makes no other


      2 Some of us have raised the question of whether the limitation on
modification of rulings after the end of a court’s term applies to interlocutory
orders, or only to final judgments, but we need not resolve that issue here given
that any modification of a prior ruling happened on the same day. See Thomas,

 (Bethel, J., concurring).
                                       15
argument as to why preventing Montes-Ponce from testifying was

an abuse of discretion.

     For the aforementioned reasons, the trial court did not err in

admitting the identification evidence.

     Judgment affirmed. All the Justices concur.




                     Decided January 28, 2025.

     Murder. DeKalb Superior Court. Before Judge Harvey, Senior

Judge.

     Dillon McConnell, for appellant.

     Sherry Boston, District Attorney, Lenny I. Krick, Deborah D.

Wellborn, Assistant District Attorneys; Christopher M. Carr,

Attorney General, Beth A. Burton, Deputy Attorney General, Clint C.

Malcolm, Meghan H. Hill, Senior Assistant Attorneys General, Eric

C. Peters, Assistant Attorney General, for appellee.




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