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Docket Number

No. S06A1568.

Attorney(S)

Akil K. Secret, for appellant. Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Peggy R. Katz, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Edwina M. Watkins, Assistant Attorney General, for appellee.

Judges

Robert Benham

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Smart Summary

BROOKS v. THE STATE — Opinion Summary (Supreme Court of Georgia; Benham, J.; Decided January 22, 2007)

Factual and Procedural Background

This appeal arises from the November 2002 death of 27-year-old Telma Morris. The victim was last seen alive on November 1, 2002; her body was found two days later in an overgrown lot in Fulton County. The medical examiner testified that the victim died of manual strangulation.

Appellant John Levi Brooks met the victim through an internet dating service about one month earlier. Appellant's cousin testified he saw the victim at appellant's home on November 1 and that the victim and appellant left in the victim's car at about 4:00 p.m. The morning after, appellant was observed driving the victim's car by a witness who later identified appellant from a photographic lineup. The victim's car was found in a motel parking lot several days later; items removed from the victim's car were disposed of in a dumpster. A man who had presented police with identity papers in the name of "Tranis Borders" near where the victim's car had been seen was later connected to a separate reported armed robbery; the actual Tranis Borders testified that he was robbed and that the assailant's car and partial license plate description matched appellant's car and that appellant matched his assailant in a photo array and at trial.

On May 3, 2003, a Fulton County grand jury returned an indictment charging appellant with malice murder, felony murder (aggravated assault), aggravated assault, rape, and kidnapping with bodily injury. Trial took place May 12–16, 2003. The jury convicted appellant of malice murder and kidnapping with bodily injury (and acquitted on the rape count); the felony murder count was vacated as a matter of law and the aggravated assault conviction merged into the malice murder conviction. The trial court imposed concurrent life sentences for malice murder and kidnapping with bodily injury. A timely motion for new trial was filed and litigated; the denial of the motion was appealed to this Court, and the appeal was submitted on the briefs.

Legal Issues Presented

Whether the circumstantial evidence was sufficient to support convictions (whether the evidence excluded every reasonable hypothesis other than guilt in accordance with OCGA § 24-4-6).
Whether admission of certain evidence and testimony (including testimony of Tranis Borders concerning an alleged robbery/assault, a gun found in appellant's room, and hearsay statements of the victim) was erroneous and harmful.
Whether a pre-trial identification procedure and subsequent in-court identification were impermissibly suggestive, violating due process.
Whether appellant was denied effective assistance of trial counsel based on failures to seek suppression of identifications, to object to in-court identifications, to challenge the reliability of Borders's identification, and for soliciting an in-court identification on cross-examination.

Arguments of the Parties

Appellant's Arguments

Challenged the sufficiency of the circumstantial evidence, arguing it did not exclude every reasonable hypothesis other than guilt and relied largely on identifications that appellant contends were untrustworthy.
Argued that admission of Tranis Borders's testimony regarding an armed robbery and his identification of appellant was harmful error.
Contended the admission of a gun found in appellant's room was irrelevant and unduly prejudicial and should have been excluded.
Asserted that certain hearsay statements of the victim were admitted improperly under the hearsay "necessity" exception and lacked particularized guarantees of trustworthiness.
Maintained that pre-trial identification procedures and an in-court identification were impermissibly suggestive and violated due process.
Claimed ineffective assistance of trial counsel for failing to suppress identifications, for failing to object to in-court identifications, for not undermining the reliability of Borders's identification, and for eliciting an in-court identification during cross-examination.

The opinion does not contain a detailed account of the appellee's (State's) separate, formalized argumentation beyond the State's positions as reflected in the court's analysis and rulings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in This Case
Roper v. State, 263 Ga. 201 (1993)	Standard for sufficiency of circumstantial evidence: questions of reasonableness are for the jury and appellate court will not disturb verdict if evidence authorized jury to exclude every reasonable hypothesis except guilt.	Applied to conclude that, viewing evidence in favor of the verdict, the jury was authorized to find appellant guilty beyond a reasonable doubt.
Sims v. State, 278 Ga. 587 (2004)	Used on procedural disposition of counts (cited re: vacating felony murder as matter of law and merger of aggravated assault).	Referenced to explain that the felony murder conviction was vacated and aggravated assault merged into malice murder.
Earnest v. State, 262 Ga. 494 (1992)	Rule that errors not raised at trial by objection are generally waived on appeal.	Applied to hold appellant waived appellate review of Borders's testimony by failing to object at trial.
Owens v. State, 263 Ga. 99 (1993)	Plain error rule permits appellate review of error raised for first time on appeal where asserted error affects substantive rights (limited application).	Discussed in context of appellant's plain error argument; court held plain error did not apply here.
Paul v. State, 272 Ga. 845 (2000)	Limitation on application of plain error rule (applicable only in capital cases or where trial judge expressed opinion in violation of OCGA § 17-8-57).	Applied to conclude the plain error rule is inapplicable to this case; appellate review of Borders testimony was waived.
Crozier v. State, 263 Ga. 866 (1994)	Definition of relevance: evidence that tends to prove or disprove a material fact; trial court has discretion to determine relevancy.	Quoted to support the proposition that the gun could be relevant as it tended to connect appellant to the identification documents presented near the victim's body.
Fortson v. State, 280 Ga. 376 (2006)	Admission of relevant evidence challenged as unduly prejudicial is within trial court's sound discretion.	Applied to uphold trial court's discretion in admitting the gun, noting the court gave explanatory instruction to the jury.
Williams v. State, 277 Ga. 853 (2004)	Hearsay "necessity" exception prerequisites: necessity and particularized guarantees of trustworthiness; absent particularized guarantees, hearsay must be excluded.	Applied to conclude the trial court erred in admitting the victim's hearsay statements because particularized guarantees of trustworthiness were lacking, but the error was harmless.
Myers v. State, 275 Ga. 709 (2002)	One in whom the declarant placed great confidence may testify to the declarant's statement (as an indicium of trustworthiness for hearsay necessity).	Applied to observe no evidence existed of such a relationship between the victim and the witness; contributed to conclusion that hearsay lacked particularized guarantees of trustworthiness.
McKinney v. State, 281 Ga. 92 (2006)	Presumption that trial counsel's conduct falls within reasonable professional conduct; strategic decisions do not constitute deficient performance.	Applied in ineffective assistance analysis to support conclusion that counsel's actions were within reasonable trial strategy and not deficient or not prejudicial.
Fletcher v. State, 277 Ga. 795 (2004)	In determining whether to exclude identification evidence, court must assess whether the identification procedure was impermissibly suggestive and, if so, whether substantial likelihood of irreparable misidentification exists.	Referenced in assessing appellant's challenge to identification procedures and whether suppression should have been sought.
Clark v. State, 271 Ga. 6 (1999)	An identification procedure is impermissibly suggestive when it leads to an "all but inevitable identification" or is equivalent to authorities effectively saying "this is our suspect."	Quoted to define impermissibly suggestive identification procedures; used in evaluating the showup/photo array sequence in this case.
Butler v. State, 276 Ga. App. 161 (2005)	Showup identifications are "inherently suggestive."	Applied to acknowledge a showup is inherently suggestive and to frame the inquiry whether a substantial likelihood of misidentification existed under the totality of circumstances.
Jones v. State, 273 Ga. 213 (2000)	Whether, under totality of circumstances, there is a substantial likelihood of misidentification.	Applied to determine that, because a non-challenged photo array preceded the showup, counsel's failure to seek suppression did not prejudice appellant.
Newton v. State, 280 Ga. App. 709 (2006) & King v. State, 269 Ga. App. 658 (2004)	Failure to object at trial to identification procedures waives appellate review of due process claim regarding suggestive identifications.	Applied to hold appellant waived appellate review of his due process claim about the pre-trial identification and in-court identification for failing to object at trial.
Buchanan v. State, 273 Ga. App. 174 (2005)	Trial counsel's solicitation of testimony that leads to an in-court identification can be reasonable trial strategy and not ineffective assistance.	Applied to uphold the trial court's conclusion that counsel's solicitation of an in-court identification was a reasonable strategic decision and not ineffective assistance.

Court's Reasoning and Analysis

The Court addressed each of appellant's contentions in turn and grounded its decision on the legal principles and appellate standards cited in the opinion:

Sufficiency of the Evidence: The Court applied the Roper standard for circumstantial evidence, emphasizing that questions of reasonableness are generally for the jury. After viewing the evidence in the light most favorable to the verdict, the Court concluded the jury was authorized to find that the State excluded every reasonable hypothesis but guilt and that a rational trier could find guilt beyond a reasonable doubt.
Admission of Tranis Borders's Testimony: Appellant failed to object at trial to this testimony. The Court applied the general waiver rule (Earnest) and explained that the plain error doctrine (Owens; Paul) did not apply because this case did not fall within the limited circumstances where plain error may be invoked. Accordingly, appellate review of this claim was waived.
Admission of the Gun: The Court relied on principles of relevance (Crozier) and the trial court's discretion in balancing probative value against prejudicial impact (Fortson). The trial court instructed the jury that the gun was being admitted only for its resemblance to the weapon used to rob Borders and that there was no evidence it was the actual weapon. The Court found the gun relevant because it connected appellant to the identification documents presented near the victim's body and found no abuse of discretion in admitting it, especially given the explanatory jury instruction.
Admission of Victim's Hearsay Statements: The Court identified the two prerequisites for admitting hearsay based on necessity and the requirement of particularized guarantees of trustworthiness (Williams). It found no evidence of a close confiding relationship between the declarant and the witness (Myers), concluding the admission was erroneous. The Court then applied the harmless error principles from Williams to determine the erroneous admission was harmless because (a) one hearsay statement was cumulative of other testimony, and (b) the other statements did not touch on the central issue of culpability.
Pre-Trial Identification and In-Court Identification: Appellant failed to object at trial to the identification procedure; the Court treated the issue as waived (Newton; King). The Court recognized that a showup is inherently suggestive (Butler) but examined the totality of the circumstances (Jones). Because the showup was preceded by a photo array that was not challenged, the Court concluded trial counsel's failure to seek suppression did not prejudice appellant and thus did not constitute ineffective assistance.
Ineffective Assistance of Counsel: The Court articulated the two-part Strickland-derived standard (as stated in Myers and McKinney): deficient performance and resulting prejudice. It reviewed specific alleged failures:
- (a) Failure to seek suppression of identification: Because the photo array preceding the showup was unchallenged and the totality of the circumstances did not demonstrate a substantial likelihood of misidentification, counsel's failure to move to suppress did not create the requisite prejudice.
- (b) Failure to attack Borders's identification more aggressively: Even assuming counsel's omission was deficient, the Court concluded that, given Borders's independent physical description of the assailant and his car/partial plate and other evidence linking appellant to the victim's disappearance, appellant failed to show a reasonable probability of a different outcome.
- (c) Counsel's solicitation of an in-court identification during cross-examination of a hotel employee: The trial court accepted trial counsel's testimony that he had a strategic rationale (expectation that the witness could not identify appellant), and the Court found that this tactical decision fell within the range of reasonable professional conduct (Buchanan). Thus, it was not ineffective assistance.

Holding and Implications

Holding: The Court affirmed the judgment of conviction.

Implications and direct effects:

The convictions for malice murder and kidnapping with bodily injury and the concurrent life sentences imposed by the trial court were affirmed.
The felony murder conviction had been vacated as a matter of law and the aggravated assault conviction had merged into the malice murder conviction (as noted in the opinion).
The Court sustained the trial court's evidentiary rulings in large part (gun admission, harmlessness of certain hearsay), found certain errors harmless, and held that many challenges were waived due to failure to object at trial.
The Court rejected appellant's ineffective assistance claims because either counsel's performance was reasonable trial strategy or any alleged deficiency did not result in prejudice sufficient to undermine confidence in the outcome.
The opinion resolves the specific claims of this appellant against him but does not purport to announce any novel legal rule; rather, it applies existing Georgia precedents and standards to the facts of this case.

Judgment affirmed. All the Justices concur.

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BROOKS v. THE STATE.

BENHAM, Justice.

Appellant John Levi Brooks was convicted of malice murder and kidnapping with bodily injury in connection with the death of 27-year-old Telma Morris in November 2002. On appeal, he challenges the sufficiency of the evidence and the admission of certain evidence and certain testimony, and asserts he was denied the effective assistance of trial counsel. After reviewing the record in light of appellant's contentions, we affirm the judgment of conviction.

The victim was last seen alive on November 1, 2002, and her body was found two days later. On May 3, 2003, the Fulton County grand jury returned a true bill of indictment charging appellant with malice murder, felony murder (aggravated assault), aggravated assault, rape, and kidnapping with bodily injury. Appellant's trial commenced on May 12, 2003, and concluded on May 16 with the jury's return of guilty verdicts on all counts except rape, and with the trial court's imposition of concurrent sentences of life imprisonment for the convictions for malice murder and kidnapping with bodily injury (the felony murder conviction having been vacated as a matter of law and the aggravated assault conviction having merged as a matter of fact into the malice murder conviction. See Sims v. State, 278 Ga. 587 (2) ( 604 SE2d 799) (2004)). Trial counsel filed a timely motion for new trial on May 19 and was allowed to withdraw as counsel July 22, 2003. Current counsel filed a second motion for new trial and a hearing was held on October 10, 2005. The order denying the motion for new trial was filed February 20, 2006, and a timely notice of appeal was filed March 20, 2006. The appeal was docketed in this Court on May 22, 2006, and was submitted for decision on the briefs.

The family of Telma Morris reported her as missing on November 2, 2002, and her body was discovered the next day by police in an overgrown lot in Fulton County. The medical examiner who performed the autopsy testified the victim had died as a result of manual strangulation. Appellant had met the victim through an internet dating service a month earlier, and his cousin testified he saw the victim on November 1 at the home he shared with appellant, and that she and appellant left in the victim's car at about 4:00 p.m. The next morning, appellant called his cousin and the cousin drove appellant's car to a nearby strip mall where he met appellant who was driving the victim's car. The cousin followed appellant to a motel where appellant removed items from the victim's car, got in his own car with his cousin, and drove to a dumpster where he left the items removed from the victim's car. The victim's car was recovered from the motel parking lot on November 8. Appellant's uncle testified appellant had told him the victim was calling him too frequently and it was getting on appellant's nerves.

When the victim's family reported her missing, they included information about the victim's car. Two police officers recognized the car as one they had seen at 4:30 p.m. on November 1, parked in an abandoned area near the Atlanta airport. At that time, they had called in the license plate but before the result was available, a sweating man had emerged from the woods and claimed the car belonged to him. He was unable to produce a driver's license, but displayed a Social Security card and a City of Atlanta employee identity card in the name of Tranis Borders, and they allowed him to drive away. After being alerted to the fact the car and its owner were missing, one of the officers returned to the site where they had seen the car and found the victim's body approximately 150 feet away from where the vehicle had been parked. When presented with a photographic lineup which included appellant, both officers identified the photo of appellant as that of the man who drove off in the victim's car after coming out of the woods where the victim's body was later found.

Based on the name given to the officers, an arrest warrant was issued for Tranis Borders. Mr. Borders testified he had been the victim of an armed robbery and aggravated assault in the early morning hours of October 31, and his wallet containing his Social Security card and City of Atlanta identification card had been taken. A copy of the police incident report was admitted into evidence. He was able to give a description of his assailant's car, including a portion of the license plate number, and that description and partial license plate number matched appellant's car. Mr. Borders testified the assailant used a nickel-plated pistol to assault him and identified the gun found in a search of appellant's room as resembling that which was used by his assailant. Mr. Borders identified appellant as his assailant in a photo array and at trial.

1. Appellant maintains the circumstantial evidence presented by the State was not sufficient to authorize his conviction because the evidence did not exclude every reasonable hypothesis save that of his guilt. See OCGA § 24-4-6. Appellant relies on his testimony that he last saw the victim at his house on November 1, and questions the trustworthiness of the testimony of the witnesses who identified him as the person seen with the victim's car at the site where her body was found two days later, and as the person who stole the identity papers displayed to police by the person with the victim's car the day the victim was killed.

[T]he correct rule for determining the sufficiency of the evidence in convictions based entirely on circumstantial evidence is that "questions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law." [Cit.]

Roper v. State, 263 Ga. 201 (1) ( 429 SE2d 668) (1993). It is the role of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient. Sims v. State, 278 Ga. 587 (1) ( 604 SE2d 799) (2004). After reviewing the evidence in a light most favorable to the verdict, we conclude the evidence was sufficient to authorize the jury to determine the State excluded all reasonable hypotheses save that of the guilt of appellant, and to authorize a rational trier to find appellant guilty beyond a reasonable doubt. Roper v. State, supra, 263 Ga. at 202.

2. Appellant asserts harmful error resulted from the admission into evidence of the testimony of Tranis Borders concerning the aggravated assault and armed robbery that took place the day before the victim was killed, including his identification of appellant as the assailant. Appellant acknowledges trial counsel did not object to the admission of the testimony and recognizes that failure to object at trial generally constitutes a waiver of appellate review. Earnest v. State, 262 Ga. 494, 495 (1) ( 422 SE2d 188) (1992) ("Errors not raised in the trial court will not be heard on appeal."). Appellant maintains his enumerated error is entitled to appellate review under the "plain error" rule, which permits appellate review of assertions of error raised for the first time on appeal where the asserted error affects substantive rights. Owens v. State, 263 Ga. 99 (2) ( 428 SE2d 793) (1993). However, application of the plain error rule is limited to death penalty cases and criminal cases in which the trial judge, in violation of OCGA § 17-8-57, has expressed or intimated the judge's opinion as to the guilt of the accused or as to what has or has not been proved. Paul v. State, 272 Ga. 845 (3) ( 537 SE2d 58) (2000). This case fits neither situation; accordingly, the plain error rule is inapplicable to the case at bar, and appellate review of appellant's assertion of error regarding the admission of the testimony of Tranis Borders is waived due to the failure to object at trial.

3. Appellant complains reversible error was committed by the admission into evidence of the gun found in a search of appellant's room and identified by Tranis Borders as similar in appearance to the gun used by the armed robber who took from Borders the identification documents which were presented to police the next day by the man who had possession of the victim's car. Prior to the admission of the gun, the trial court informed the jury the gun was being admitted as one that looked like the weapon used to rob Borders, but there was no evidence it was the actual weapon used. Appellant asserts the gun was irrelevant to the charges for which appellant was being tried and its highly prejudicial nature should have precluded its admission into evidence.

"Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant." [Cits.] The trial court has great discretion to determine relevancy and materiality of evidence, and admission is favored in doubtful cases.

Crozier v. State, 263 Ga. 866, 867 (2) ( 440 SE2d 635) (1994). "The admission of relevant evidence that is challenged on the basis that its probative value is outweighed by its prejudicial impact is within the sound discretion of the trial court." Fortson v. State, 280 Ga. 376, 379 (2) ( 628 SE2d 104) (2006). While no gun was used in committing the crimes for which appellant was being tried, evidence of the gun was relevant to the charges being tried because it connected appellant to the identification documents presented to police in close proximity to the victim's body by the person who had custody of the victim's car on the day the victim was killed. We see no abuse of the trial court's discretion in admitting the gun into evidence, especially since the trial court's action was accompanied by an explanatory instruction to the jury.

4. A woman who had worked with the victim for less than a year was permitted, over a hearsay objection, to testify to three statements the victim had made to her the last day she was seen alive: the victim was going to see her boyfriend that day; the victim was very excited because she had given her life back to Christ the night before; and the victim was going to go back to school to prepare for a career in photography. It appears the hearsay was admitted pursuant to the "necessity" exception found in OCGA § 24-3-1 (b) ("Hearsay evidence is admitted only in specified cases from necessity.").

The two prerequisites for the admission of hearsay because of necessity are: a finding that the hearsay is necessary, and a finding that the declarant's hearsay statement is surrounded by particularized guarantees of trustworthiness. . . . After the completion of the three-pronged examination of whether the hearsay is "necessary," the trial court must then examine whether the hearsay statement is surrounded by "particularized guarantees of trustworthiness," that is, whether there is "something present which the law considers a substitute for the oath of the declarant and [her] cross-examination by the party against whom the hearsay is offered." [Cit.] Absent a showing of particular guarantees of trustworthiness or indicia of reliability, the proffered hearsay must be excluded from evidence.

Williams v. State, 277 Ga. 853, 854-855 (2) ( 596 SE2d 597) (2004). One in whom the declarant placed great confidence and to whom the declarant turned for help with problems may testify to a statement made to the witness by the declarant. Myers v. State, 275 Ga. 709, 713 (2) ( 572 SE2d 606) (2002). There was no evidence of such a relationship between the victim/declarant and the witness in the case at bar, and the lack of such a relationship or other particularized guarantees of trustworthiness makes the admission of the hearsay testimony erroneous. Id. However, "[t]he erroneous admission of hearsay testimony is harmless where it is cumulative of legally admissible evidence of the same fact, where it does not touch on the central issue of the case, or it could not have contributed to the verdict in light of eyewitness testimony regarding the crime." Id. The hearsay statement regarding the victim's plan to visit her boyfriend is cumulative of the testimony of appellant's cousin that he saw the victim at appellant's home that afternoon, and the statements regarding the victim's religious experience and her future scholastic plans did not touch on the central issue of the case. Accordingly, the erroneous admission of the hearsay was harmless error.

5. Appellant next contends his constitutional right to due process was violated by the admission of the results of a purportedly impermissibly suggestive pre-trial identification procedure, followed by an in-court identification of appellant as the person with the victim's car near the site where her body was found. Appellate review of the issue is waived due to failure to object at trial. Newton v. State, 280 Ga. App. 709, 711-712 ( 634 SE2d 839) (2006); King v. State, 269 Ga. App. 658 (2) ( 605 SE2d 63) (2004).

6. Finally, appellant contends he was denied his right to effective assistance of counsel because trial counsel failed to seek suppression of witnesses' identification of appellant on the ground that pre-trial identification procedures were impermissibly suggestive; failed to object to the in-court identification of appellant by one of the police officers; failed to present evidence affecting the reliability of Tranis Borders' identification of appellant as the armed robber; and solicited on cross-examination an in-court identification of appellant by a witness. "To prevail on a claim of ineffective assistance of trial counsel, appellant must show counsel's performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel's errors, the outcome of the trial would have been different. [Cits.]" Myers v. State, supra, 275 Ga. at 713 (4). "Trial counsel's decisions that amount to reasonable trial strategy do not constitute deficient performance [cit.], and there is a strong presumption that trial counsel's conduct fell within the broad range of reasonable professional conduct. [Cit.]" McKinney v. State, 281 Ga. 92, 93 (2) ( 635 SE2d 153) (2006).

(a) "In determining whether to exclude identification evidence, the trial court must ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether there was a substantial likelihood of irreparable misidentification. [Cit.]" Fletcher v. State, 277 Ga. 795, 797 (3) ( 596 SE2d 132) (2004).

The taint which renders an identification procedure impermissibly suggestive must come from the method used in the identification procedure. [Cit.] An identification procedure is impermissibly suggestive when it leads the witness to an "all but inevitable identification" of the defendant as the perpetrator [cit.], or . . . is the equivalent of the authorities telling the witness, "this is our suspect."

Clark v. State, 271 Ga. 6, 12 (7) (b) ( 515 SE2d 155) (1999).

Appellant complains the identification of appellant by a police officer as the man with the victim's car near the site where her body was discovered was tainted by a procedure in which the officer was shown a single photo of appellant. The officer testified he was shown an array of six photos and chose appellant's photo, describing himself as "around 65 percent sure" that the photo was that of the man he had seen. After appellant was arrested, the officer looked at appellant's booking photos, in effect a photo "show-up," and concluded he was sure they depicted the man he saw with the victim's car. Upon seeing appellant in the courtroom, the officer reiterated the confidence he had in his identification of appellant as the man with the victim's car.

A showup is "inherently suggestive." Butler v. State, 276 Ga.App. 161, 164 (1) ( 623 SE2d 132) (2005). The issue then becomes whether, under the totality of the circumstances, there was a substantial likelihood of misidentification. Jones v. State, 273 Ga. 213 (2) ( 539 SE2d 143) (2000). In the case at bar, since the showup was preceded by a photo array against which no attack has been made, we conclude trial counsel's failure to seek suppression of the identification testimony did not prejudice appellant to the point that a reasonable probability exists that, but for counsel's error, the outcome of the trial would have been different. Accordingly, trial counsel's inaction did not constitute ineffective assistance.

(b) Tranis Borders testified he saw a portion of his assailant's face when he was able to remove the assailant's stocking mask the night he was robbed, and he picked appellant's photo from a pictorial lineup three months after the incident. On cross-examination, Borders admitted the incident had occurred at 3:00 a.m. after he had been up for 20 hours and had been drinking at a nightclub. Appellant contends trial counsel was ineffective for failing to use on cross-examination the fact that Borders had told police a week after the incident that it was too dark for him to see the perpetrator. Assuming the failure to use Borders's statement to call into question the reliability of Borders's identification of appellant as the perpetrator constitutes deficient performance, in light of the physical description of the assailant and the description of the assailant's car and a portion of its license plate given by Borders the day after the incident, as well as the other evidence connecting appellant to the victim's disappearance and death, we cannot say that trial counsel's failure to use the police report to question the reliability of Borders's identification of appellant as the armed robber prejudiced appellant to the point that a reasonable probability exists that the outcome of the trial would have been different.

(c) Trial counsel testified at the hearing on the motion for new trial that he deduced from the State's failure to elicit in-court identification testimony from an employee of the hotel at which the victim's car was found that the witness was unable to identify appellant as the man she saw. He decided to highlight this theory for the jury by asking the witness if she had ever seen appellant before. In response, the witness identified appellant as the man she saw with the victim's car. Trial counsel's solicitation of the in-court identification of appellant by the witness was a matter of trial strategy, and the trial court was authorized to conclude that counsel's strategic decision was reasonable and fell within the range of professional conduct. Buchanan v. State, 273 Ga. App. 174 (2) ( 614 SE2d 786) (2005). The trial court did not err when it concluded that appellant had not received ineffective assistance of counsel.