[Copyrighted Material Omitted]
Aggravated assault, etc. Cobb Superior Court. Before Judge Stoddard, Senior Judge.
Lawrence J. Zimmerman, Christopher R. Geel, for appellant.
D. Victor Reynolds, District Attorney, Amelia G. Pray, Marc D. Cella, Assistant District Attorneys, for appellee.
MILLER, Judge. Doyle, P. J., and Dillard, J., concur.
Following a jury trial, Johnny Culbreath was convicted of four counts of aggravated assault with a deadly weapon (OCGA § 16-5-21 (b) (2)), three counts of false imprisonment (OCGA § 16-5-41), five counts of possession of a firearm during the commission of certain crimes (OCGA § 16-11-106), and one count each of burglary (OCGA § 16-7-1 (b)), aggravated assault with intent to rob (OCGA § 16-5-21 (b) (1)), attempted armed robbery (OCGA § 16-8-41), kidnapping (OCGA § 16-5-40), and cruelty to children in the first degree (OCGA § 16-5-70 (b)). Culbreath appeals from the denial of his motion for new trial, contending that (1) the witnesses' in-court identifications were tainted; (2) his convictions for burglary, false imprisonment, and aggravated assault should have merged with his attempted armed robbery conviction; (3) the trial court erred in allowing the prosecutor to comment in closing on Culbreath's failure to present an alibi; and (4) the trial court erred in its analysis of his speedy trial
claim. For the reasons that follow, we vacate Culbreath's conviction and sentence as to aggravated assault against victim Margaret Parris, and we vacate the denial of Culbreath's speedy trial motion for discharge and remand this case with direction. As to Culbreath's remaining contentions, we affirm the judgment.
Viewed in the light most favorable to the jury's verdict, the evidence shows that on July 14, 2009, Culbreath broke into the home [328 Ga.App. 154] of John and Margaret Parris in Cobb County. Mrs. Parris, who was 81 years old at the time of the offense and Mr. Parris, who was 83 years old at the time of the offense, lived in the downstairs unit of a home belonging to their daughter and son-in-law, Danny Carlson. The Parrises heard dogs barking, and Mrs. Parris went to investigate. When Mrs. Parris pushed open the downstairs bathroom door, Culbreath stepped out with a gun and put it to her head. Culbreath demanded to know where the money was and threatened to " blow her brains out." Culbreath then forced Mrs. Parris to lie down on the floor and bound her wrists, ankles and mouth with duct tape. Culbreath then entered the dining room, where he pointed his gun at Mr. Parris, demanded money, asked him where he could find Danny Carlson, bound his hands, feet and mouth with duct tape, and put an afghan over his head. Culbreath then went upstairs, to the main level of the house, where he found then ten-year-old K. M., a tennis student of Carlson's, eating lunch in a room next to the kitchen. Culbreath pointed a gun at her and asked her to take him to Carlson, and they wandered the house, looking for him. Upon finding Carlson in his office on the top floor, Culbreath ordered Carlson and K. M. to the floor and bound them with duct tape. Culbreath also put a blanket over Carlson's head.
Meanwhile, Mr. Parris cut the tape off his hands and feet and retrieved a revolver from his bedroom drawer. Mr. Parris went upstairs and yelled when he saw Culbreath tying up Carlson. Culbreath fired at Mr. Parris, who fired three shots back. Culbreath yelled, grabbed his stomach, and ran downstairs and out of the house. Carlson, who had been shot in the leg, broke free from his bindings, retrieved his own gun, and went downstairs and out the door, but gave up his intent to chase Culbreath when he realized his gun was not loaded. Police recovered 9 mm ammunition and a magazine from the house.
At the end of the initial investigation, police had no suspects. After viewing an online news report about the crime, Culbreath's daughter called police and told them she believed her father might have been involved in the home invasion. Police visited Culbreath, who had suffered a recent gunshot wound to his side. A fingerprint on a piece of duct tape found in the downstairs dining room of the victims' home matched Culbreath's right thumb print. Police also recovered duct tape and spent 9 mm casings inside a stolen truck that Culbreath had been driving.
1. Culbreath contends that K. M. and Carlson's in-court identifications were tainted because they had been told that the perpetrator would be in court. We discern no error.
[328 Ga.App. 155] Setting aside the issue of whether Culbreath waived his claim of error with regard to K. M. by failing to object to her in-court identification, Davis v. State, 286 Ga. 74, 77 (2) (b) (686 S.E.2d 249) (2009), both of his claims fail.
" It is error to allow testimony concerning a pre-trial identification of a defendant if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification." Clark v. State, 271 Ga. 6, 12 (7) (b) (515 S.E.2d 155) (1999). However, in-court identifications are not subject to the same requirements as pre-trial identifications. Millner v. State, 258 Ga.App. 425, 427-428 (1) (574 S.E.2d 457) (2002). " Common sense dictates that there is no secret as to who the defendant is once a trial has begun, and the state is not required to provide a lineup from which a witness may select the defendant when making an in-court
identification." Id. at 428 (1).
The " totality of the circumstances" test for reliability ... applies to extrajudicial pretrial identification procedures such as lineups, showups and photographic displays, not to the in-court procedures used in this case. Because pretrial identification procedures occur beyond the immediate supervision of the court, the likelihood of misidentification in such cases increases, and courts have required that pretrial identification procedures comport with certain minimum constitutional requirements in order to [e]nsure fairness. These extra safeguards are not, however, applicable to [the witnesses'] in-court identification[s] of [Culbreath] in this case. Rather, [their] testimony is subject to the same rules of evidence, witness credibility, and cross-examination as all testimony in a criminal trial.
(Citations and punctuation omitted.) Ralston v. State, 251 Ga. 682, 683-684 (2) (309 S.E.2d 135) (1983).
Here, the evidence shows that both K. M. and Carlson had ample opportunity to view Culbreath at the time of the crime; they testified, under oath, that he was the intruder; and they were subject to cross-examination. ...