CURRY v. the STATE.
CURRY v. the STATE.
Opinion
*520 Following a jury trial, Terrell Curry was convicted of armed robbery, aggravated assault, and criminal trespass. He appeals, claiming that the trial court failed to give a necessary limiting instruction to the jury and erred in excluding certain evidence. He also argues that he received ineffective assistance of counsel at trial. For reasons that follow, we affirm.
Viewed in the light most favorable to the jury's verdicts, see
Woodall v. State
,
Q.K. reported the incident to the police, providing a description of the men, including the clothing worn by the gunman. While on patrol later that evening, a police officer saw *179 a group of young males playing basketball less than one-half mile from the robbery scene. The group included Curry, who met the physical description of the gunman and was wearing camouflage cargo pants and a red shirt with "ball game" on the back. The officer detained Curry and found Q.K.'s cell phone in his pocket. The memory card from the cell phone, however, was missing. At trial, Q.K. identified Curry as the gunman, noting that he was "100 percent" certain in his identification.
Curry testified in his own defense at trial. He admitted that he was with the individuals who robbed Q.K. and that he was the only person present wearing a red shirt with "ball game" on the back. He also removed the memory card from the cell phone police seized from his pocket. Nevertheless, he asserted that he was not involved in the crimes and did not know the group planned to rob anyone. The jury, however, found him guilty of armed robbery, aggravated assault, and criminal trespass (by interfering with Q.K.'s cell phone).
1. Curry first claims that the trial court erred in failing to give a limiting instruction to the jury regarding his written custodial statement. The record shows that Curry gave both an oral and written statement to police. And without dispute, he was not advised of his rights under
*521
Miranda v. Arizona
,
Through his trial testimony, Curry indicated that he thought the cell phone seized from his pocket belonged to one of the other basketball players, who purportedly asked Curry to hold it during the game. The State subsequently used Curry's written statement to impeach this testimony, establishing that he had previously admitted to police that he knew when he took possession of the phone that it belonged to the robbery victim. Curry now argues that the trial court should have informed the jury that it could only consider the written statement for impeachment purposes.
A custodial statement taken in violation of
Miranda
may, under appropriate circumstances, be admitted to impeach the credibility of the defendant. See
Harris v. New York
,
It does not appear that the trial court gave a limiting instruction when admitting Curry's statement. But even if the trial court erred in this regard, reversal only results if the error was harmful. See
Jones , supra at 826-827 (6),
2. Curry argues that the trial court erred in refusing to admit evidence that, on the day before Q.K. was robbed, another person dressed in red clothing reportedly committed an armed robbery in the same neighborhood. According to Curry, this evidence was admissible to show that someone other than him possibly robbed Q.K. We disagree.
Generally, a criminal defendant may present relevant and admissible evidence that another individual committed the crimes charged. See
Woodall , supra at 632 (8),
Curry's proffered evidence raises no more than a "bare suspicion" that someone else committed the crimes here. When questioned outside of the jury's presence about the prior incident, the investigating officer testified that police could not confirm that the other robbery had actually occurred, and he noted that the individual detained in connection with the alleged prior crime had been released. Moreover, Curry admitted that he was present during the armed robbery in this case and was the only person at the robbery scene wearing a red shirt with "ball game" written on it. Q.K. also testified, without equivocation, that Curry pointed a gun at him during the robbery.
Given the significant evidence establishing Curry's involvement in the crimes against Q.K., an unconfirmed and speculative
possibility
that someone else wearing red may have committed a different robbery in the neighborhood on another day "does not raise an inference that [Curry] is innocent of" the crimes charged.
Jones v. State
,
3. Finally, Curry asserts that he received ineffective assistance of counsel at trial because defense counsel failed to object to or move to suppress the victim's in-court identification testimony. To prevail on this claim, Curry must show that counsel's performance was deficient and that the deficiency "so prejudiced him that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different."
Veasey v. State
,
Q.K. testified that at some point during the robbery investigation, an officer informed him that an arrest had been made, stating, "I got him." Citing this testimony, Curry argues that the officer's "I got him" statement impermissibly tainted the victim's identification, subjecting it to exclusion under
Neil v. Biggers
,
As explained by the Georgia Supreme Court,
Neil v. Biggers
, which addresses out-of-court identification evidence, "is irrelevant to the admissibility of in-court identifications."
Hunt v. State
,
*181
Challenges to in-court identifications generally must be made "through cross-examination."
Judgment affirmed.
Dillard, C. J., and Doyle, P. J., concur.
Curry was tried in 2014, after the New Evidence Code took effect in 2013. See Ga. L. 2011, p. 99, § 101. Although Jones was decided under the prior evidence rules, we find no reason to disregard its discussion of limiting instructions.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.