NOTICE: 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.
In the Supreme Court of Georgia
Decided: January 28, 2025
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
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 firearm during 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 Valezquez (Count 3) into Count 1.
The trial court sentenced Appellant to fifteen 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 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
appeal, Appellant argues that the trial court abused its discretion
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
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.
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other, and Montes-Ponce could see the seller typing on his phone.
«V6-67» 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
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
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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
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
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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”—
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
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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.
State, 299 Ga. 875, 879 (4) (792 SE2d 691) (2016). Under the first
step, we consider whether “the identification procedure used was
impermissibly suggestive.” Id. 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, 308 Ga. 92, 99 (4) (839 SE2d 620) (2020) (citation 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, 299
Ga. at 879 (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;
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(4) the witness’ level of certainty at the confrontation; and
(5) the length of time between the crime and the
confrontation.
Wright v. State, 294 Ga. 798, 801-802 (2) 756 SE2d 513, 517 (2014)
(citation 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, 308 Ga.
863, 867 (2) (843 SE2d 857) (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, 308 at 99 (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, 309 Ga. 457, 457 (847 SE2d 188) (2020).
And we “generally . . . accept the trial court’s factual findings unless
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they are clearly erroneous.” Westbrook, 308 Ga. at 96 (2) (citation
and punctuation omitted). “In determining whether the trial court
erred in denying the motion to suppress identification testimony,
this court may consider the evidence adduced both at the
suppression hearing and at trial.” Clark v. State, 279 Ga. 243, 245
(4) (611 SE2d 38) (2005) (citation 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 of 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
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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
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
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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
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 photographic 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
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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 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 photolineup 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
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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
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, 294 Ga. at 802 (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, 271 Ga. 416, 418 (2) (519 SE2d 912) (1999) (holding
that “even if” the identification procedure was impermissibly
suggestive because the witness saw the appellant’s picture on
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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
that the “crimes occurred under a street and 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, 294 Ga. at
801-802 (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
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that, after selecting Appellant’s photo, 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,
318 Ga. 682, 688-689 (2) (899 SE2d 669) (2024) (considering 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
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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
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,
319 Ga. 123, 124-125 (2) (902 SE2d 566) (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.”
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(citation and punctuation omitted)). 2 And Appellant makes no other
argument as to why preventing Montes-Pontes 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.
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,
319 Ga. at 128-133 (Bethel, J., concurring).
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