CourtListener 10680317

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319 Ga. 234
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S24A0129. ELEBY v. THE STATE.

BOGGS, Chief Justice.

Appellant Lekievius Eleby challenges his 2012 convictions for

felony murder and other crimes in connection with a home invasion

that resulted in the death of Danavan Bussey.1 Appellant contends

1 The crimes occurred on December 5, 2010. On March 16, 2011, a Lamar

County grand jury indicted Appellant, Shameik Spinks, and Bryce Smith on
multiple counts: Count 1 — the felony murder of Bussey (armed robbery);
Count 2 — the felony murder of Bussey (aggravated assault); Count 3 — armed
robbery; Count 4 — burglary; Count 5 — the aggravated assault of Tyrone
Holmes; Count 6 — the aggravated assault of Dewayne Johnson; Counts 7, 8,
and 9 — the false imprisonment of Keitrae Battle, Holmes, and Johnson; Count
10 — conspiracy to commit armed robbery; and Count 12 — tampering with
evidence. Appellant was separately indicted in Count 13 for possession of a
firearm during the commission of a felony, and Spinks was also separately
indicted for the same offense. On January 5, 2012, before trial, Bryce Smith
pled guilty to robbery by intimidation and received a sentence of 15 years in
prison, with ten to serve, and testified against Appellant at trial. On February
27, 2012, before trial, Spinks pled guilty to felony murder. He testified for the
defense at trial. At a trial from February 27 to March 6, 2012, a jury found
Appellant guilty on all counts of the indictment.
On March 6, 2012, the trial court sentenced Appellant to life in prison
for felony murder (armed robbery); to a concurrent sentence of life in prison for
armed robbery; to fifteen consecutive years in prison for burglary; to fifteen
concurrent years in prison for the aggravated assaults of Holmes and Johnson;
to ten concurrent years in prison on the three false imprisonment counts; to
ten concurrent years in prison for conspiracy to commit armed robbery; to ten
concurrent years in prison on the tampering count; and to five consecutive
that the evidence was legally insufficient to support his convictions

because the identifications of Appellant as one of the participants

were not reliable; that the indictment was multiplicitous; that the

trial court abused its discretion when it excluded evidence of past

recollection recorded; that the trial court erred in failing to grant

Appellant’s motion to suppress certain pretrial and trial

identifications; that the trial court committed plain error when it

allowed a GBI agent to give her opinion about the meaning of certain

text messages; that Appellant’s sentences for the aggravated

years in prison on the possession count. The trial court merged Count 2 for
sentencing purposes. On March 19, 2012, Appellant filed a motion for new trial,
which he amended through new counsel on March 16, 2020. On August 2, 2023,
the trial court denied the motion for new trial, as amended. Appellant filed a
timely notice of appeal, and the case was docketed in this Court for the term
beginning in December 2023 and submitted for a decision on the briefs.
We note that there was a significant delay between the filing of
Appellant’s motion for new trial in 2012 and the filing of his amended motion
in 2020. See Everett v. State, 318 Ga. 697, 698 n.2 (899 SE2d 699) (Ga. 2024)
(stating that “[w]e are troubled by the inordinate and unexplained delay
between the filing of Everett’s motion for new trial in 2010 and the filing of an
amended motion 12 years later”). Here, Appellant was appointed new counsel
in 2013, but no substantive filings by that counsel appear in the record. In
August 2019, Appellant retained current appellate counsel, who filed the
amended motion for new trial in 2020.

2
assaults of Tyrone Holmes and Dewayne Johnson should have

merged with each other or with the armed robbery offense; that the

conspiracy to commit armed robbery should have merged with the

conviction for armed robbery; that the possession offense should

have been merged with felony murder; that the prosecutor made

improper and prejudicial comments in his closing argument; and

that his trial counsel was constitutionally ineffective for failing to

make certain objections at trial. For the reasons that follow, we

vacate Appellant’s convictions and sentences for armed robbery and

conspiracy to commit armed robbery. Appellant’s remaining claims

are not preserved for appeal, are without merit, or do not require

reversal.

1. The evidence presented at trial showed that the victims —

Bussey, Holmes, and Johnson — were friends who attended Gordon

College together and lived in a house on Westchester Drive in

Barnesville in December 2010. Appellant also lived on Westchester

Drive. Johnson testified that he knew Appellant from “hanging

around Barnesville” and that, although he did not “hang out” with

3
Shameik Spinks,2 he had “seen him around.” Likewise, Holmes

testified that he had met Appellant at a club, had seen him around

Gordon College and also knew him from the Westchester Drive

neighborhood, but that, at the time of the crimes, he did not know

his last name.

Before the crimes, there had been animosity between the

victims and Appellant, with the victims thinking that Appellant had

twice broken into their home. In September 2010, Bussey, who was

with Johnson, confronted Appellant, who was with his cousin

Spinks, about the break-ins. According to Johnson, this led to a fight

between Bussey and Appellant, with Spinks also “trying to jump on

[Bussey].” Johnson added that Bussey and Appellant threw some

punches at each other and the fight “just ended.” In addition, on the

night of December 4, 2010, one night before the crimes at issue here,

when the victims were driving down Westchester Drive, they saw

Spinks walking down the street, pulled up next to him, and “had a

2 Appellant testified that Spinks’s “granddaddy and my father are first

cousins” and Johnson and Holmes referred to Spinks as Appellant’s cousin.
4
couple of words with him.” Holmes testified that he asked Spinks

about the fight with Bussey and that Spinks replied that he was “not

going to fight”; “I’m going to shoot.” The victims drove away.

In the early morning hours of December 5, 2010, the victims

were having a party at which a few other people, including Diamond

Rhodes and Keitrae Battle, were present. Rhodes and Bussey were

friends, having met at Gordon College, and Battle knew Bussey

through a mutual friend. Rhodes and Battle both testified that they

regularly socialized at Bussey’s house. At trial, Johnson testified

that he heard a knock on the door and opened it. He testified that

“all [he] remember[ed] [wa]s a gun in [his] face and they came in.”

When asked “how many people came in,” Johnson said, “[i]t was

three guys. One stood at the door. Lekievius and Shameik, they

came in.” Johnson added that he recognized Appellant and Spinks

even though they had their faces partially covered from the mouth

down. Appellant was armed with a handgun, and Spinks was armed

with a shotgun. When Appellant and Spinks came into the house,

“they asked for money and whatever was valuable.” According to

5
Johnson, Appellant went to the living room where Holmes was

sitting and had him bend over a table. Bussey then came from the

back of the house and tried to talk to the intruders. Bussey

approached Spinks and attempted to take the shotgun from him.

The two men struggled for it, then “a shot [went] off,” and Bussey

fell to the floor. After the shot was fired, Appellant and Spinks “were

still demanding . . . stuff.” Spinks took Johnson to Bussey’s room and

Appellant took Holmes to Johnson’s room. Johnson found Rhodes’s

handbag in Bussey’s room and gave it to Spinks. Shortly after that,

Appellant and Spinks left. At trial, although Johnson identified

Appellant as one of the intruders in the house that night, he

acknowledged that, when he was first interviewed by the police, he

did not say that Appellant was present during the crimes. According

to Johnson, at the time of the interview, he had “just witnessed the

murder of my best friend,” and “my mind was elsewhere.” Johnson

testified that the crimes lasted five to ten minutes.

Holmes’s testimony tracked that of Johnson, and he added that

Appellant came into the house with his hoodie pulled up to his

6
mouth but that Appellant let his hoodie slip down, allowing Holmes

to see his entire face. Holmes added that the other person had a

bandana covering his mouth but not the rest of his face and that he

recognized that person as Spinks. According to Holmes, Appellant

was carrying a revolver, and Spinks had a shotgun. Holmes also

acknowledged that, in an interview with the police, he was shown a

photograph only of Appellant, but added that the photograph “just

confirmed [Appellant’s] name” and did not “suggest to [him] that

that night it was Lekievius.”

When Battle heard intruders come into the house, she hid in

the bathtub. However, once she heard shots, she tried to exit the

house through the front door but was stopped by one of the intruders

and stayed near the front door until she saw the three intruders exit

the house and walk around the left side of it.

According to Smith, who lived in the neighborhood, he,

Appellant, Spinks, and some other people were at the home of

Ardrana Pate on the night of the crimes. Smith added that he had

been friends with Appellant since he “was young”; that he had

7
known Spinks since the summer of 2010; and that he had met

Bussey “through [Appellant].” Smith added that he left Pate’s house

between midnight and 1:00 a.m. and that Spinks later texted him,

asking him “to hit a lick,” which Smith said meant to commit a

robbery. Smith agreed and went outside his house to smoke a

cigarette. He then saw Spinks and Appellant “coming down,” with

Appellant carrying a handgun and Spinks carrying a shotgun.

Smith, who testified that he did not have a weapon, “jumped off [his]

porch” and the men “ran over to the [victims’] house.” According to

Smith, Appellant and Spinks knocked on the door, and when

someone answered, Appellant and Spinks went into the house.

Smith heard Bussey trying to “calm everything down,” but, he

added, “they started tussling.” Smith then heard two shots; “[t]he

first one was kind of loud, but the second one was very loud.” Smith

did not see who was shot, and he then ran to his driveway, from

where he saw Appellant and Spinks running. He saw Appellant and

Spinks go by a neighbor’s house, and “then [he] saw a person throw

a shotgun over the fence.” On cross-examination, Smith

8
acknowledged that he had given “different versions” of the events of

that night in interviews with law enforcement officials. Among other

versions, Smith told officers that he thought Spinks and Appellant

were the perpetrators, but that it was just a “guess” and that he was

home in his kitchen when he heard gunshots; that Spinks,

Appellant, and a man named Kellius Collier committed the crimes

and that he was at home and saw “the whole thing out [of his]

window”; that he was on his porch when he saw Spinks, Appellant,

and an unspecified third person commit the crimes; that he did not

know anything about the crimes; and that he participated in the

crimes by standing in the doorway of the victims’ house. Smith

testified that he had given these different versions because “[he] was

scared. It was [his] first time ever [to] be in trouble.”

Ardrana Pate, who lived near the victims’ home, testified that

she knew Smith and Appellant and had met Spinks. She also knew

the victims. Pate testified that on the night of December 4-5, 2010,

Appellant, Spinks, Smith, and Ashley Parker came to her house.

Smith was the last to arrive, shortly after midnight. She added that

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she overheard the group “[j]okingly saying that [it] would be a sweet

lick” to rob the victims’ home and that Appellant asked Spinks to let

him “see the piece.” According to Pate, Spinks had a small backpack

and Appellant “thought that the gun was in it and he went in it and

it actually wasn’t in there. [Spinks] said . . . [he] moved it.” She

added that they left her house at about 1:30 to 1:45 a.m. on

December 5. Similarly, Ashley Parker, who knew Appellant, Smith,

and Spinks, testified that she was at Pate’s house with the three

men and then went to Appellant’s home, leaving Appellant’s house

at about 1:45 a.m.

Immediately after the shooting, an occupant of Bussey’s house

called 911, and law enforcement officials arrived at the crime scene

around 3:52 a.m. Bussey had been shot once in the leg with the

handgun and once to the right side of his face with the shotgun. The

shotgun wound was fatal. Law enforcement officers subsequently

recovered a pump shotgun from the back yard of a home on

Westchester Drive. A GBI firearms examiner determined that a

shotgun shell found at the crime scene was fired from that shotgun.

10
Although a .22-caliber bullet was recovered from Bussey’s leg, the

handgun used in the crimes was never recovered.

GBI Agent Cayce Ingalls testified about text messages that

Appellant and Spinks sent to each other from December 4 to 5, 2010.

For example, at 4:37 p.m. on December 4, Spinks sent Appellant a

text message saying that he would “be over” and that he had “the 22

and the 22 bullets and the pump shells.” At 7:43 p.m. on December

4, Appellant received a text message from Spinks saying that

“n****s just pulled up on me. Then I start poppin and they got scared

LOL they was just like tell [Appellant] it’s on site and I was like then

it’s on. . . . They bi**hes LOL you wanna kill these n****s.”

In the meantime, from December 4 to 5, Spinks was texting a

person named Marquevus Smith. At 9:00 a.m. on December 4,

Spinks asked Marquevus if he had “the pump shells I gotta hit the

big lick . . . today,” and at 2:00 p.m. on December 4, Spinks asked

Marquevus if he had “the 22.” Marquevus responded that he had the

pump shells, and with regard to Spinks’s question about the “22,”

Marquevus told Spinks to “stop texting nonsense my n***a text

11
messages get tracked.” Around 6:00 p.m. on December 4, Spinks

directed Marquevus to leave “the pump and the 22” under the porch

of Spinks’s aunt. In text messages around 1:40 to 1:55 a.m. on

December 5, Spinks told Marquevus that he “might have to come hit

this lick”; that this was the “best time” to hit “them college n****s

down there in the house with some hoes”; rob “them soft ass college

boys . . . is a sweet lick ’cause they gonna show us where everything

at”; and that “them hoes gonna be quiet cause they gonna be scared

to get shot.” Marquevus, however, declined to participate, saying

that the college girls would be “snitching” and he knew that “all of

them . . . got cell phones.”

The State also offered evidence that Spinks texted Smith at

1:55 a.m. on December 5, asking him if he “want[ed] to hit a lick.”

Smith asked, “where about and what’s it worth.” Spinks replied that

“it’s [the] college boys,” and Smith said that he lived “right by” them,

that he watched them, that there “ain’t none in there worth all that.”

Smith added that they should “wait ’til [they were] gone.” Spinks

replied that they would get nothing “when they gone,” and Smith

12
asked Spinks if he was at Appellant’s house. Spinks replied that he

was, and at 2:13 a.m., Smith texted Spinks that he would “be up

there when [he] g[o]t back from” a friend’s house. At 2:37 a.m.,

Spinks texted Smith “where you at [be]cause we left Kevius’s house.

He went to sleep.”

Agent Ingalls and Lieutenant Al Moltrum of the Barnesville

Police Department interviewed Appellant at 8:37 a.m. on December

5, as well as at 2:39 p.m. that same day. In the first interview,

Appellant denied committing the crimes, saying that he did not “go

to [the victims’ home] last night,” that he “ain’t went down there and

shot nobody,” and that “[i]f them boys saying I was at they house,”

they were lying, “[p]robably ‘cause they don’t like me.” He also

denied being with Spinks on the night of December 4-5, adding that

he was home by 10:45 p.m., got into the bed that he shared with his

little brother, and went to sleep. In the second interview, law

enforcement officials informed Appellant that they had learned,

contrary to Appellant’s statements during his first interview, that

Spinks was with him on the night of the crimes. Appellant continued

13
to deny his involvement in the crimes, saying that he was home in

bed. Appellant, however, did say that Spinks texted him on the night

of December 4 and told him about his argument with Bussey and his

friends that night. According to Appellant, Spinks said that he was

“going to get them.” Appellant told Spinks to “stay out [of] their

way.” Lieutenant Moltrum told Appellant that Pate had told the

officers that Spinks and Appellant were at her house around 2:00

a.m. on December 5 and that Appellant had gotten himself into

trouble in the first interview in saying that he had gone to sleep

around “midnight.” Appellant said that Pate was “lying” and that it

was “probably later than that” when he went to sleep. Similarly,

when Lieutenant Moltrum informed Appellant that Spinks had said

that Appellant was with Spinks “the whole time,” Appellant said

that Spinks was lying.

Appellant and Spinks testified in Appellant’s defense at trial.

Spinks testified that Appellant did not plan or take part in the

robbery. According to Spinks, the last time he saw Appellant on the

night of the crimes, Appellant “said he was going to go to sleep.” He

14
added that, during his plea hearing, he told the trial court that, if

Appellant were convicted, the “court would be convicting an

innocent man.” He further testified that he, Smith, and “some dude

[Smith] brought named Pooh” committed the crimes.

Appellant testified that he lived on Westchester Drive with his

mother, father, little brother, and sister, where he shared a bedroom

with his little brother, who is six years old. He added that he knew

Smith, who lived down the street from him, and that he had known

Spinks since August 2010. With regard to Spinks’s text at 4:37 p.m.

on December 4, Appellant said that he thought that Spinks was

simply saying that “he was happy that he had a gun.” Appellant

added that he saw Spinks about 8:30 that night at a friend’s house

and that Spinks had a book bag with him with a .22-caliber revolver

inside of it. Appellant left the friend’s house and went home.

However, after midnight on December 5, he went with Spinks and

Parker to Pate’s house. After leaving Pate’s house, Appellant,

Spinks, and Parker went to Appellant’s house, where they drank

and watched television in the garage. According to Appellant, he

15
subsequently went to bed, and Spinks and Parker left his house.

Appellant then called his girlfriend and then went to sleep.

Appellant testified that he was not “involved in any way with the

robbery of” Bussey and his friends. On cross-examination, Appellant

acknowledged that he told the police on the morning of December 5

that he had not seen Spinks on the night of December 4 to 5 and did

not know where Spinks was.

Cell phone records showed that Appellant spoke with his

girlfriend for about 45 minutes beginning at 2:26 a.m. on December

5. Appellant’s girlfriend testified that, during this conversation, she

heard Appellant tell his little brother to “scoot over in the bed.” She

added that she did not hear any background noise during the

conversation and that Appellant did not mention anything about

planning a robbery. According to Appellant’s girlfriend, Appellant

fell asleep several times during their conversation. She also testified

that Appellant called her back at 4:06 a.m. that same morning and

told her that someone in the neighborhood had been shot. Appellant

“sounded like he had just [woken] up, like he had been asleep.”

16
According to Appellant’s girlfriend, he did not appear to be out of

breath or “sound as though he had been running.”

2. Appellant claims that the evidence is insufficient to support

his convictions because he was not “competently identified” as one

of the assailants. However, the evidence establishing Appellant’s

identification as a participant in the crimes was sufficient. That

evidence included testimony from a co-indictee and two victims that

Appellant entered the victims’ house with a handgun and

participated in the crimes committed therein. It also included

evidence that contradicted the version of events that Appellant

initially gave to law enforcement officials regarding his activities on

the night of the crimes. This evidence, viewed in the light most

favorable to the verdicts, was clearly sufficient as a matter of

constitutional due process to authorize a rational jury to conclude

that Appellant participated in the crimes committed at the victims’

house. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61

LE2d 560) (1979); Ward v. State, 316 Ga. 295, 298 (888 SE2d 75)

(2023) (explaining that “the testimony of a single witness is

17
generally sufficient to establish a fact” (cleaned up)). Although

Appellant claims that the identifications of him were not reliable, it

was for the jury to resolve “conflicts or inconsistencies in the

evidence, credibility of witnesses, and reasonable inferences to be

derived from the facts.” Graham v. State, 313 Ga. 436, 440 (870 SE2d

424) (2022) (cleaned up).

3. Relying solely on the non-binding, solo concurrence by

Justice Stevens in Ball v. United States, 470 U.S. 856, 867-868 (105

SCt 1668, 84 LE2d 740) (1985), Appellant argues that double

jeopardy concerns prohibited his prosecution on the multi-count or

“multiplicitous” indictment in this case. This claim, however, is

without merit. First, the majority in Ball explained that “even where

the [Double Jeopardy] Clause bars cumulative punishment for a

group of offenses, the Clause does not prohibit the State from

prosecuting the defendant for such multiple offenses in a single

prosecution.” Id. at 860 n.7 (cleaned up). Similarly, we have held

that the “procedural protections against double jeopardy apply only

to ‘multiple prosecutions,’ meaning multiple or successive

18
indictments or criminal proceedings” and “do not apply to a single

indictment that contains multiple counts.” Williams v. State, 307

Ga. 778, 779 (838 SE2d 235) (2020) (cleaned up). For these reasons,

this claim fails.3

4. Appellant contends that the trial court erred in not

permitting the jury to have access to a transcript of an interview of

Johnson by law enforcement officials as a past recollection recorded.4

However, at trial, Appellant contended only that the jury should

have access to a short written statement that Johnson gave to the

3 As part of his argument in the enumeration concerning the indictment,

Appellant raises an issue about the trial court’s response to a jury question.
During its deliberations, the jury asked the trial court whether, with regard to
the tampering with evidence count of the indictment, the State had to prove
that Appellant “was the one who physically had possession of the shotgun and
was the one who disposed of the weapon.” The trial court answered “no” to this
jury question, and Appellant contends that the answer was an abuse of
discretion. However, Appellant affirmatively waived this issue by agreeing
that the correct answer to the jury’s question was “no.” See Hughes v. State,
310 Ga. 453, 457 (851 SE2d 580) (2020) (appellant affirmatively waived any
error in answering the jury’s questions on the issue of proximate cause when
he “agreed that re-reading the indictment was the appropriate means to
answer the jury’s questions”).

4 Appellant contended that the transcript should either be read to the

jury or given to them to review in the jury box. He did not seek to have the jury
take the transcript to the jury room. The transcript of Johnson’s interview was
not introduced into evidence at trial.
19
police, not that the jury should be given access to the transcript of

Johnson’s interview. There is therefore no ruling by the trial court

on an evidentiary issue regarding the transcript of Johnson’s

interview. Because this case was tried in 2012 under our former

Evidence Code, plain error review of the evidentiary claim that the

trial court erred in not granting the jury access to the transcript of

Johnson’s interview is not available. See Pyatt v. State, 298 Ga. 742,

746 n.7 (784 SE2d 759) (2016) (explaining that plain error review

under our current Evidence Code “applies only to any motion made

or hearing or trial commenced on or after January 1, 2013” (cleaned

up)). Moreover, under the former Evidence Code, because Appellant

did not seek at trial to have the jury be given access to the transcript

of the interview, any error in denying his request to give the jury

access to it is not preserved for appeal. See Rucker v. State, 293 Ga.

116, 121-122 (744 SE2d 36) (2013) (holding, in a case under the

former Evidence Code, that a claim that the trial court erred in not

permitting the introduction of certain evidence was not preserved

for review because the defendant did not seek to introduce the

20
evidence during trial).

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

motion to suppress the pretrial and trial identifications by Johnson,

Holmes, and Smith. More specifically, Appellant contends that the

identifications were the result of impermissibly suggestive

procedures and thus violated his right to due process. We conclude

that these claims fail.5

(a) First, Appellant raised no objection at trial to Smith’s

identification of Appellant as one of the perpetrators. Appellant’s

challenge to Smith’s testimony is therefore not preserved for review.

See Lane v. State, 312 Ga. 619, 622 (864 SE2d 34) (2021) (explaining

that “in the absence of a timely objection, there is no appellate

review of evidentiary rulings under the old Evidence Code” (cleaned

up)).

5 We note that, with the adoption of OCGA §§ 17-20-1 through 17-20-3,

“the Georgia General Assembly has prioritized improving the accuracy of
eyewitness identifications.” Curry v. State, 305 Ga. 73, 76 n.3 (823 SE2d 758)
(2019). These provisions, however, did not become effective until July 1, 2016,
after the trial of this case.

21
(b) Appellant sought to suppress Johnson’s in-court

identification of him on the ground that Johnson’s identification was

the result of an impermissibly suggestive process because Holmes

told Johnson that Appellant was one of the gunmen.6 In this regard,

at trial, when Johnson was asked on cross-examination whether he

remembered telling law enforcement officials during his second

interview that Holmes told him that Appellant was the “guy” behind

Spinks during the crimes, Johnson testified, “yeah, he told me. We

talked about it. . . . But he didn’t say, like — you know, it wasn’t no,

like, I didn’t know who it was.” However, the due process principles

on which Appellant relies, as explained by such cases as Neil v.

Biggers, 409 U.S. 188 (93 SCt 375, 34 LE2d 401) (1972), and

Simmons v. United States, 390 U.S. 377, 384 (88 SCt 967, 19 LE2d

1247) (1968), apply only when the suggestive circumstances leading

to an identification are arranged or orchestrated by law enforcement

6 At the hearing on the motion to suppress, Johnson testified that he was

never shown any lineup by law enforcement officials. No other evidence was
offered on this point. In addition, there was no evidence offered at trial of any
pretrial identification of Appellant by Johnson.
22
officials. See Perry v. New Hampshire, 565 U.S. 228, 232-233 (132

SCt 716, 181 LE2d 694) (2012) (explaining that “we have not

extended pretrial screening for reliability to cases in which the

suggestive circumstances were not arranged by law enforcement

officers”; that “our decisions . . . turn on the presence of state action

and aim to deter police from rigging identification procedures, for

example, at a lineup, showup, or photograph array”; and that “when

no improper law enforcement activity is involved, we hold, it suffices

to test reliability through the rights and opportunities generally

designed for that purpose, notably, the presence of counsel at post-

indictment lineups, vigorous cross-examination, protective rules of

evidence, and jury instructions on both the fallibility of eyewitness

identification and the requirement that guilt be proved beyond a

reasonable doubt” (cleaned up)); Morrall v. State, 307 Ga. 444, 449

(836 SE2d 92) (2019) (quoting the foregoing principles from Perry).

See also Clay v. State, 309 Ga. 593, 598 (847 SE2d 530) (2020)

(holding that, where a witness identified the defendant in a photo

array after seeing a news report of the defendant’s arrest, the

23
defendant could not challenge the witness’s identification based on

the foregoing due process principles because the defendant was not

“challenging the identification procedure used by law enforcement,

but, instead, is challenging the weight and credibility of [the

witness’s] identification,” matters that were reserved for the jury).

For the foregoing reasons, we conclude that the trial court did not

err in denying Appellant’s motion to suppress Johnson’s

identification testimony.

identification testimony implicates due process concerns because the

record shows that, at Holmes’s interview with law enforcement

officials on the morning of the crimes, he identified Appellant as

being involved in the crimes after law enforcement officials showed

Holmes a single photo of Appellant.

“If an out-of-court identification by a witness is so

impermissibly suggestive that it could result in a substantial

likelihood of misidentification, evidence of that out-of-court

identification violates due process and is inadmissible at trial.”

24
Lewis v. State, 314 Ga. 654, 662 (878 SE2d 467) (2022) (cleaned up).

We employ “a two-step process in examining a trial court’s

admission of identification evidence for error,” first deciding

“whether the identification procedure used was impermissibly

suggestive.” Id. (cleaned up). “An identification procedure is not

impermissibly suggestive unless it leads the witness to the virtually

inevitable identification of the defendant as the perpetrator, and is

the equivalent of the authorities telling the witness, ‘This is our

suspect.’” Id. (cleaned up). “Second, if a trial court properly concludes

that the State employed an impermissibly suggestive pre-trial

identification procedure, the issue becomes whether, considering the

totality of the circumstances, there was a substantial likelihood of

irreparable misidentification.” Id. (cleaned up). If there is not a

substantial likelihood of irreparable misidentification, “then both

the pre-trial and in-court identifications are admissible.” Curry v.

State, 305 Ga. 73, 76 (823 SE2d 758) (2019) (cleaned up). We

consider the “totality of the circumstances” in determining whether

there is a substantial likelihood of irreparable misidentification. See

25
Howard v. State, 318 Ga. 681, 687-688 (899 SE2d 669) (2024).

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

Id.7 “Moreover, whether the witness knows the defendant is a critical

factor in determining the reliability of an identification.” Lewis, 314

Ga. at 670 (cleaned up). “We review a trial court’s ruling on a motion

7 In two recent cases, we have noted that there is tension between the

“level-of-certainty” aspect of the due process test for determining the likelihood
of misidentification and our holding in Brodes v. State, 279 Ga. 435 (614 SE2d
766) (2005), that trial courts should “refrain from informing jurors [that] they
may consider a witness’s level of certainty when instructing them on the
factors that may be considered in deciding the reliability of that identification.”
Id. at 442. See State v. Harris, 316 Ga. 272, 281 n.12 (888 SE2d 50) (2023);
Pearson v. State, 311 Ga. 26, 29 n.5 (855 SE2d 606) (2021). In Harris, we
explained that
[w]hile it seems incompatible that a trial judge should consider the
witness’s level of certainty when determining the likelihood of
misidentification but the jury may not be instructed to consider the
witness’s level of certainty when determining the reliability of the
identification, no one has asked us to reconsider our decision in
Brodes, and the trial court’s consideration of this factor is expressly
sanctioned under [U.S.] Supreme Court precedent, see Neil v.
Biggers, 409 U.S. 188, 199 (III) (93 SCt 375, 34 LE2d 401) (1972).
316 Ga. at 281 n.12.

26
to suppress identification evidence for an abuse of discretion,” State

v. Harris, 316 Ga. 272, 280 (888 SE2d 50) (2023), and in reviewing

a ruling on such a motion, “evidence is construed most favorably to

uphold the findings and judgment and the trial court’s findings on

disputed facts and credibility must be accepted unless clearly

erroneous.” Wright v. State, 294 Ga. 798, 801 (756 SE2d 513) (2014)

(cleaned up). Finally, “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.” Id. at 802 (cleaned up).

At trial, Lieutenant Moltrum and Agent Ingalls testified that

they conducted an interview with Holmes at 6:11 a.m. on December

5, about two hours after the crimes. They added that Holmes

identified a man he referred to as “Kevian’s cousin” as being the

perpetrator with the shotgun, but that Holmes said “not really”

when asked if he could identify the second perpetrator who entered

27
the house with a handgun.8 Because Lieutenant Moltrum had heard

officers at the crime scene discussing names like “Lekievius Collier,”

“Kevius,” and “Lekievius Eleby,” and because Lieutenant Moltrum

knew a “Kelius Collier,” as well as Appellant, he asked Holmes about

“Kevian,” such as where he lived. Lieutenant Moltrum asked

Holmes if “Kevian” lived three or four houses away from the victims,

and Holmes said that he did. Lieutenant Moltrum knew that

Appellant lived at that location, and he showed Holmes a copy of

Appellant’s driver’s license. Holmes recognized the picture on the

driver’s license and identified the person depicted as “Kevian” and

said that he was the second intruder. The trial court did not address

whether the use of a single photo for identification was

impermissibly suggestive, but skipped to the second part of the due

process test, ruling that there was not a substantial likelihood of

irreparable misidentification. We conclude that, even assuming that

showing Holmes the driver’s license photograph was impermissibly

8 At the pretrial hearing and at trial, Holmes denied that he initially said

that he could identify the second intruder.

28
suggestive, the trial court did not abuse its discretion in ruling that

there was not a substantial likelihood of irreparable

misidentification.

Here, the evidence indicates that the likelihood of irreparable

misidentification was low. Holmes had an ample opportunity to view

the perpetrator at the crime scene. In this regard, Holmes testified

that, at the time of the crimes, a light was on that “really shines into

the living room” where he was sitting when the intruders came into

the house. Holmes added that he was close enough to touch

Appellant and Spinks during the crimes, that Appellant

accompanied Holmes to Johnson’s bedroom to look for items to take,

and that the crimes lasted about seven minutes. Moreover, Holmes

had become personally acquainted with Appellant before the crimes

and testified that, during the crimes, he was able to see Appellant’s

face and recognized his voice when Appellant spoke. In addition,

Holmes testified that, during the crimes, he was “paying attention”

to the people at the door and to the “people who took me to the back”

of the house, and he remained certain in his identification of

29
Appellant as being one of the assailants. Holmes also testified that

being shown the photograph of Appellant did not change his “mind

in anyway [sic],” as he knew from the crime scene “who had come in

the house.” Finally, there was only a very short time — about two

hours — between the time that Holmes saw Appellant during the

crimes and the identification. Considering the totality of the

circumstances, we conclude that, even though Holmes failed to

initially identify Appellant when speaking to law enforcement

officials, the trial court did not abuse its discretion in ruling that the

presentation of a single photo to Holmes did not create a substantial

likelihood of irreparable misidentification. See Howard, 318 Ga. at

688 (holding that an initial photo array that we assumed was

impermissibly suggestive did not lead to substantial likelihood of

misidentification even where a witness who had not met the

defendant before the day of the shooting and who was uncertain in

identifying the defendant in the initial photo array had “a significant

opportunity to view [the defendant] before and after the shooting”

and identified the defendant with certainty in a second photo array);

30
Harris, 316 Ga. at 281 (explaining that “if the witness was

acquainted or otherwise personally familiar with the suspect before

making an out-of-court identification, then there is not a substantial

likelihood of misidentification regardless of an impermissibly

suggestive procedure” (cleaned up)); Pearson v. State, 311 Ga. 26, 30

(855 SE2d 606) (2021) (holding that there was no substantial

likelihood of misidentification where the witnesses had a good

opportunity to view the perpetrator during the crime, “paid

attention to him at that time,” expressed certainty in their

identifications, and the showup occurred shortly after the crimes);

Wright, 294 Ga. at 800, 802-803 (rejecting argument that a witness’s

in-court identification should have been excluded for substantial

likelihood of irreparable misidentification where the witness was

unable to select defendant definitively from a photo array but

testified that his later identification “was based on remembering

[the defendant] from the scene of the crime”).

6. Appellant contends that the trial court committed plain

error when it allowed Agent Ingalls to testify about her

31
understanding of the meaning of various text messages introduced

into evidence. However, because this case was tried under our

former Evidence Code, plain error review of this evidentiary claim

is not available. See Lane, 312 Ga. at 622. Moreover, under our

former Evidence Code, the claim is not preserved for review because

Appellant did not object to the testimony in question. See id.

(explaining that under the former Evidence Code, “in the absence of

a timely objection, there is no appellate review of evidentiary

rulings” (cleaned up)).

7. Appellant contends that the trial court made several errors

in sentencing him. We agree with one of Appellant’s claims, and we

have identified one merger error in Appellant’s sentencing that

requires correction.

Appellant contends that the trial court erred in failing to merge

the aggravated assaults of Holmes and Johnson with the armed

robbery conviction. At the outset, we note that the trial court erred

in sentencing Appellant on the armed robbery count. Because the

armed robbery served as the underlying felony for the felony murder

32
conviction on which Appellant was sentenced, the conviction and

sentence for armed robbery must be vacated. See Ruff v. State, 314

Ga. 386, 389 (877 SE2d 239) (2022) (where a defendant is “found

guilty only of felony murder, the underlying felony would certainly

be deemed to have merged, as a matter of law, into the felony murder

and a separate sentence for that underlying felony would not be

authorized” (cleaned up)). However, “the same merger analysis

applies in determining whether the . . . aggravated assault merged

into either the armed robbery conviction or the felony murder

predicated on that armed robbery.” Hood v. State, 309 Ga. 493, 503

n.9 (847 SE2d 172) (2020) (cleaned up). In this regard, we have held

that “because there is no element of aggravated assault with a

deadly weapon that is not contained in armed robbery, that form of

aggravated assault will merge into armed robbery if the crimes are

part of the same act or transaction.” Id. at 502-503 (cleaned up).

However, “where one crime is completed before another crime, the

‘same conduct’ does not establish the commission of both offenses.”

Jackson v. State, 318 Ga. 393, 411 (897 SE2d 785) (2024) (cleaned

33
up). Here, the aggravated assaults of Holmes and Johnson were

completed once Appellant and Spinks entered the house and pointed

their guns at Holmes and Johnson, and the armed robbery was

based on Appellant and Spinks subsequently taking the victims to

bedrooms in the back of the house and taking a purse from one of

the bedrooms. Under these circumstances, the aggravated assaults

do not merge with the armed robbery conviction. See Thomas v.

State, 289 Ga. 877, 878-881 (717 SE2d 187) (2011) (holding that

where the defendant committed an armed robbery against the

victim in the music room of an apartment, but where the victim was

subsequently forced into a nearby bathroom and the defendant

committed an aggravated assault against the victim in the

bathroom, the conviction for aggravated assault did not merge with

the conviction for armed robbery because “although the conviction

for the armed robbery of [the victim] also resulted from the music-

room holdup, the conviction for his aggravated assault was based on

Appellant’s forcing the shotgun down his throat later in the

bathroom, as the indictment clearly specified”). Cf. Womac v. State,

34
302 Ga. 681, 681-682, 684-685 (808 SE2d 709) (2017) (holding that

where the evidence showed that the defendant committed an

aggravated sexual battery against a minor on the bed of a motel

room, causing the victim to run into the bathroom, where the

defendant committed other crimes, the aggravated sexual battery

did not merge with the other crimes under Drinkard v. Walker, 281

Ga. 211 (636 SE2d 530) (2006), because it was completed before the

other crimes were committed).

In addition, contrary to Appellant’s contention, the trial court

did not err in sentencing Appellant for the separate assaults of

Holmes and Johnson, as those counts do not merge with each other.

See Sillah v. State, 315 Ga. 741, 758 (883 SE2d 756) (2023) (“If

crimes are committed against different victims . . . , they do not

merge.”). Finally, Appellant correctly claims (and the State

concedes) that the trial court should have merged the offense of

conspiracy to commit armed robbery with the conviction for felony

murder predicated on armed robbery. See OCGA § 16-4-8.1 (a

“person may not be convicted of both conspiracy to commit a crime

35
and the completed crime”); Simmons v. State, 314 Ga. 883, 893 (880

SE2d 125) (2022) (explaining that “the trial court properly merged

the count[ ] alleging conspiracy to commit aggravated assault [of the

victim] . . . into the felony murder conviction predicated on

aggravated assault [of the victim]” (cleaned up)).

8. Appellant claims that the prosecutor made several improper

arguments in closing. In particular, Appellant complains that the

prosecutor referred to him as a “drug dealer.” Appellant, however,

did not object to any part of the prosecutor’s closing argument. His

claim is therefore not preserved for review. See Poellnitz v. State,

296 Ga. 134, 136 (765 SE2d 343) (2014) (holding that the defendant’s

contention that the prosecutor made improper remarks during

closing argument was not preserved for review because of the failure

to make a contemporaneous objection).

9. Appellant contends that his trial counsel provided

constitutionally ineffective assistance by failing to object when

Agent Ingalls testified as to her interpretation of certain text

messages and when the State introduced autopsy photographs that

36
he contends were gruesome and prejudicial. However, Appellant did

not raise either of these claims in his motion for new trial or in his

amended motion, where he was represented by appellate counsel.

He also did not raise them at the hearing on his motion for new trial,

and the trial court did not rule on the claims. Accordingly, he has

not preserved these claims of ineffective assistance of trial counsel

for review. See, e.g., Allen v. State, 317 Ga. 1, 12-13 (890 SE2d 700)

(2023) (explaining that “ineffectiveness claims must be raised and

pursued at the earliest practicable moment, which for a claim of

ineffective assistance of trial counsel is at the motion for new trial

stage if the defendant is no longer represented by the attorney who

represented him at trial” and holding that appellant did not

preserve for review a claim of ineffective assistance where he failed

to raise the claim in his initial motion for new trial or the

amendment or during the hearing on the motion for new trial, and

the trial court did not address the claim in its order denying the

motion for new trial (cleaned up)).

37
Judgment affirmed in part and vacated in part. All the Justices
concur.

Decided June 11, 2024.

Murder. Lamar Superior Court. Before Judge Wilson.

Kimberly L. Copeland, for appellant.

Jonathan L. Adams, District Attorney, Dorothy V. Hull, Jessica

B. Haygood, Assistant District Attorneys; Christopher M. Carr,

Attorney General, Beth A. Burton, Deputy Attorney General, Meghan

H. Hill, Clint C. Malcolm, Senior Assistant Attorneys General, M.

Catherine Norman, Elizabeth H. Brock, Assistant Attorneys General,

for appellee.

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: June 11, 2024

S24A0129. ELEBY v. THE STATE.

BOGGS, Chief Justice.

Appellant Lekievius Eleby challenges his 2012 convictions for

felony murder and other crimes in connection with a home invasion

that resulted in the death of Danavan Bussey 1 Appellant contends

1 The crimes occurred on December 5, 2010. On March 16, 2011, a Lamar

County grand jury indicted Appellant, Shameik Spinks, and Bryce Smith on
multiple counts: Count 1—the felony murder of Bussey (armed robbery); Count
2—the felony murder of Bussey (aggravated assault); Count 3—armed robbery;
Count 4—burglary; Count 5—the aggravated assault of Holmes; Count 6—the
aggravated assault of Johnson; Counts 7, 8, and 9—the false imprisonment of
Battle, Holmes, and Johnson; Count 10—conspiracy to commit armed robbery;
and Count 12—tampering with evidence. Appellant was separately indicted in
Count 13 for possession of a firearm during the commission of a felony, and
Spinks was also separately indicted for the same offense. On January 5, 2012,
before trial, Bryce Smith pled guilty to robbery by intimidation and received
a sentence of 15 years in prison, with 10 to serve, and testified against
Appellant at trial. On February 27, 2012, before trial, Spinks pled guilty to
felony murder. He testified for the defense at trial. At a trial from February 27
to March 6, 2012, a jury found Appellant guilty on all counts of the indictment.
On March 6, 2012, the trial court sentenced Appellant to life in prison
for felony murder (armed robbery); to a concurrent sentence of life in prison for
armed robbery; to 15 consecutive years in prison for burglary; to 15 concurrent
that the evidence was legally insufficient to support his convictions

because the identifications of Appellant as one of the participants

were not reliable; that the indictment was multiplicitous; that the

trial court abused its discretion when it excluded evidence of past

recollection recorded; that the trial court erred in failing to grant

Appellant’s motion to suppress certain pretrial and trial

identifications; that the trial court committed plain error when it

years in prison for the aggravated assaults of Holmes and Johnson; to 10
concurrent years in prison on the three false imprisonment counts; to 10
concurrent years in prison for conspiracy to commit armed robbery; to 10
concurrent years in prison on the tampering count; and to five consecutive
years in prison on the possession count. The trial court merged Count 2 for
sentencing purposes. On March 19, 2012, Appellant filed a motion for new trial,
which he amended through new counsel on March 16, 2020. On August 2, 2023,
the trial court denied the motion for new trial, as amended. Appellant filed a
timely notice of appeal, and the case was docketed in this Court for the term
beginning in December 2023 and submitted for a decision on the briefs.
We note that there was a significant delay between the filing of
Appellant’s motion for new trial in 2012 and the filing of his amended motion
in 2020. See Everett v. State, 899 SE2d 699, 700 n.2 (Ga. 2024) (stating that
“[w]e are troubled by the inordinate and unexplained delay between the filing
of Everett’s motion for new trial in 2010 and the filing of an amended motion
12 years later”). Here, Appellant was appointed new counsel in 2013, but no
substantive filings by that counsel appear in the record. In August 2019,
Appellant retained current appellate counsel, who filed the amended motion
for new trial in 2020.

2
allowed a GBI agent to give her opinion about the meaning of certain

text messages; that Appellant’s sentences for the aggravated

assaults of Holmes and Johnson should have merged with each other

or with the armed robbery offense; that the conspiracy to commit

armed robbery should have merged with the conviction for armed

robbery; that the possession offense should have been merged with

felony murder; that the prosecutor made improper and prejudicial

comments in his closing argument; and that his trial counsel was

constitutionally ineffective for failing to make certain objections at

trial. For the reasons that follow, we vacate Appellant’s convictions

and sentences for armed robbery and conspiracy to commit armed

robbery. Appellant’s remaining claims are not preserved for appeal,

are without merit, or do not require reversal.

1. The evidence presented at trial showed that the victims—

Bussey, Holmes, and Johnson—were friends who attended Gordon

College together and lived in a house on Westchester Drive in

Barnesville in December 2010. Appellant also lived on Westchester

Drive. Johnson testified that he knew Appellant from “hanging

3
around Barnesville” and that, although he did not “hang out” with

Shameik Spinks, 2 he had “seen him around.” Likewise, Holmes

testified that he had met Appellant at a club, had seen him around

Gordon College and also knew him from the Westchester Drive

neighborhood, but that, at the time of the crimes, he did not know

his last name.

Before the crimes, there had been animosity between the

victims and Appellant, with the victims thinking that Appellant had

twice broken into their home. In September 2010, Bussey, who was

with Johnson, confronted Appellant, who was with his cousin

Spinks, about the break-ins. According to Johnson, this led to a fight

between Bussey and Appellant, with Spinks also “trying to jump on

[Bussey].” Johnson added that Bussey and Appellant threw some

punches at each other and the fight “just ended.” In addition, on the

night of December 4, 2010, one night before the crimes at issue here,

when the victims were driving down Westchester Drive, they saw

2 Appellant testified that Spinks’s “granddaddy and my father are first

cousins” and Johnson and Holmes referred to Spinks as Appellant’s cousin.
4
Spinks walking down the street, pulled up next to him, and “had a

couple of words with him.” Holmes testified that he asked Spinks

about the fight with Bussey and that Spinks replied that he was “not

going to fight,” “I’m going to shoot.” The victims drove away.

In the early morning hours of December 5, 2010, the victims

were having a party at which a few other people, including Diamond

Rhodes and Keitrae Battle, were present. Rhodes and Bussey were

friends, having met at Gordon College, and Battle knew Bussey

through a mutual friend. Rhodes and Battle both testified that they

regularly socialized at Bussey’s house. At trial, Johnson testified

that he heard a knock on the door and opened it. He testified that

“all [he] remembered [wa]s a gun in [his] face and they came in.”

When asked “how many people came in,” Johnson said, “[i]t was

three guys. One stood at the door. Lekievius and Shameik, they

came in.” Johnson added that he recognized Appellant and Spinks

even though they had their faces partially covered from the mouth

down. Appellant was armed with a handgun, and Spinks was armed

with a shotgun. When Appellant and Spinks came into the house,

5
“they asked for money and whatever was valuable.” According to

Johnson, Appellant went to the living room where Holmes was