State v. HARRIS (Two Cases) ( 2023 )


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  •  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: May 16, 2023
    S23A0090, S23A0091. THE STATE v. HARRIS.
    BETHEL, Justice.
    Lorenzo Harris was indicted for malice murder and other
    offenses arising from the shooting of Larry Jones. Pursuant to
    OCGA § 5-7-1 (a), the State appeals the trial court’s pretrial rulings,
    which were not reduced to writing, granting Harris’s motion in
    limine to exclude evidence of two prior incidents and his motion to
    suppress identification evidence. In the absence of a written order
    from the trial court regarding the appealed rulings, we directed the
    parties to brief the issue of this Court’s jurisdiction. Upon review,
    we conclude that we have jurisdiction over these appeals, vacate the
    trial court’s rulings, and remand for further proceedings.
    1. According to the affidavit supporting the warrant for
    Harris’s arrest, Jones was shot on March 26, 2019, in the parking
    lot of an apartment building at 20 Vanira Avenue in Atlanta. 1
    Surveillance video recordings 2 of the parking lot captured around
    the time of the incident show a man leaving the apartment of Shirley
    Ndetti and entering a red truck. The man then shot Jones in the
    back and drove away. Jones died as a result of his injuries. Three
    .40-caliber shell casings were recovered at the scene of the shooting.
    During their investigation, police interviewed Ndetti and
    showed her a single photograph of Harris. She confirmed that the
    person depicted in the photograph, whom she knew as “Low,” visited
    her apartment the night of the shooting and left shortly before
    Ndetti heard gunshots. The State indicated at pretrial hearings that
    1 The background facts set forth in this opinion concerning the crime and
    the evidence that was excluded under Rule 403 were drawn from the affidavit
    supporting the warrant for Harris’s arrest, a police report, and discussions
    between the trial court, defense counsel, and the prosecutor during the pretrial
    hearings. However, the facts concerning the identification were supported by
    a recording of the interview and a witness who was called at the hearing on
    the motion to suppress. The trial court did not issue written orders containing
    any findings of fact. Our recitation is solely for the purpose of establishing
    context and nothing in this opinion should be understood as establishing or
    resolving any disputed fact.
    2 The video recordings were not tendered as exhibits to the motion to
    suppress or the motion in limine and are not part of the record before this
    Court.
    2
    it intends to introduce evidence at trial showing that Harris owns a
    red truck, as well as Harris’s phone records, which place him in the
    area around the time of the shooting.
    Before trial, the State sought an order confirming the
    admissibility of evidence related to prior shootings, which allegedly
    linked Harris to Jones’s shooting, as intrinsic evidence. At pretrial
    hearings, counsel for both Harris and the State proffered the
    following account of the two prior shootings. The first incident 3 (the
    “Almond Incident”) occurred in September 2019; the victim, Mario
    Almond, was robbed at gunpoint by three men while conducting a
    jewelry sale with Harris, and Almond alleged that Harris
    orchestrated the robbery. The second incident (the “Hank Aaron
    Incident”) occurred on March 7, 2019, and arose from a shooting
    incident involving damage to property at 942 Hank Aaron Drive, one
    block from where Jones was shot. Police recovered 13 .40-caliber
    3 We use “first” and “second” to denote the order of the argument.
    Chronologically, the Almond Incident occurred five to six months after Jones
    was shot. Meanwhile, the Hank Aaron Incident appears to have taken place
    just under three weeks before Jones was shot.
    3
    cartridge casings at that location, which were forensically
    determined to have been fired by the same gun that was used
    nineteen days later during the Jones shooting. 4
    Among other pretrial filings, Harris filed a motion in limine to
    exclude evidence of the prior shootings as “inadmissible, prejudicial,
    inflammatory and not relevant.” He also filed a motion to suppress
    Ndetti’s identification of Harris, arguing that the use of a single-
    photograph lineup was improper. The trial court held hearings on
    these motions, excluded evidence of two prior shootings, relying on
    OCGA      §   24-4-403     (“Rule    403”),   and    suppressed      Ndetti’s
    identification. It is from these rulings that the State appeals.
    2. Before reaching the merits of the State’s appeal, we must
    consider whether we have jurisdiction over this appeal in the
    4 The State represented at pretrial hearings that it expects the evidence
    at trial to show that Harris is linked to the shell casings recovered from the
    Hank Aaron Incident through an August 2018 shooting of Daniel Troutman
    (the “Troutman Incident”). The shell casings recovered from the Troutman
    Incident were a forensic match to both the casings recovered from the Hank
    Aaron Incident and the Jones shooting. Troutman initially identified Harris as
    the shooter, but he later testified under oath at an evidentiary hearing in
    another case that Harris was not the shooter. The Troutman Incident is not at
    issue on appeal because the trial court declined to make a ruling as to the
    admissibility of its evidence at the pretrial hearings.
    4
    absence of a written order from the trial court with respect to the
    rulings at issue in this case. See Woods v. State, 
    279 Ga. 28
    , 28 (
    608 SE2d 631
    ) (2005) (“It is incumbent upon the Court to question its
    jurisdiction in all cases in which jurisdiction may be in doubt.”). We
    conclude that this appeal is properly before us.
    Substantively, three oral rulings made at separate hearings
    are at issue here. At the first hearing on May 4, 2022, the trial court
    orally granted Harris’s motion in limine with respect to the Almond
    Incident, and the State orally requested that the trial court enter a
    written order memorializing its ruling. At that time, the trial court
    indicated that it would not prepare and enter its own order, instead
    informing counsel that it would file a written order only when a
    party prepared a draft order and submitted it for the court’s
    consideration. At the second hearing on May 27, 2022, the trial court
    excluded the evidence of the Hank Aaron Incident. Before doing so,
    the trial court asked if counsel for either Harris or the State could,
    either collaboratively or independently, submit a proposed order
    reflecting its prior rulings. Neither the State nor Harris’s counsel
    5
    submitted a proposed order. At the final hearing on June 9, 2022,
    the trial court orally granted Harris’s motion to suppress Ndetti’s
    identification, but the State did not request a written order for the
    ruling on the motion to suppress at that hearing.
    The next day, on Friday, June 10, 2022, the State filed a “notice
    of need for written orders on pretrial motions,” which specifically
    requested that the trial court enter written orders memorializing its
    oral rulings on Harris’s motion in limine and motion to suppress “so
    that the State may exercise its statutory rights of appeal on those
    orders.” In a written order entered that afternoon, the trial court
    acknowledged the State’s request for written orders, but rather than
    memorializing its oral rulings, it indicated that the State’s filing
    failed to state the statutory basis for an appeal and noted that the
    State would be permitted to provide an amended filing specifying
    the statutory basis for appeal. With the case scheduled for trial only
    three days later, on Monday, June 13, 2022, the State did not
    respond to the trial court’s order and instead filed its notice of appeal
    after the close of business that day (the last business day before the
    6
    jury was scheduled to be selected), appealing the trial court’s rulings
    on the motion in limine excluding evidence of the prior shootings and
    the motion to suppress Ndetti’s identification of Harris under OCGA
    § 5-7-1.
    As an initial matter, we address whether the State waived its
    right to appeal by failing to comply with the trial court’s requests for
    a proposed order. A trial court may – and routinely does – request,
    or even mandate, that a party submit a proposed order
    memorializing the court’s oral rulings. But such requests will not
    absolve the trial court of its duty to issue written orders; the
    ultimate responsibility for entering a written order rests with the
    trial court. See Titelman v. Stedman, 
    277 Ga. 460
    , 462 (
    591 SE2d 774
    ) (2003) (recognizing the trial court’s “clear legal duty to enter a
    written order”); State v. Morrell, 
    281 Ga. 152
    , 153 (3) (
    635 SE2d 716
    )
    (2006) (same). Thus, the fact that the trial court in this case
    requested that the parties submit a proposed order and that the
    7
    State failed to do so does not preclude the State’s appeal.5
    OCGA § 5-7-1 (a) authorizes the State to appeal a trial court’s
    order, decision, or judgment under certain circumstances in a
    criminal case. Ordinarily, “an order is not appealable [under OCGA
    § 5-7-1 (a)] unless it is in writing.” Morrell, 
    281 Ga. at 152
     (2). But
    an exception to this general rule arises where “the transcript
    affirmatively shows that the State requested the trial court to put
    the oral order in written form and that the trial court refused to do
    so.” 
    Id.
     See also State v. Lynch, 
    286 Ga. 98
    , 99 (
    686 SE2d 244
    ) (2009)
    (authorizing the State’s appeal of an oral ruling suppressing
    evidence where, in response to the State’s request for a written
    order, “the trial court stated that ‘the record speaks for itself’ and
    never entered a written order”). This exception is grounded in the
    State’s statutory right to appeal and serves to prevent the State’s
    statutory right to appeal from being frustrated. See OCGA § 5-7-1
    (a). Absent such an exception, the State’s ability to exercise its right
    5Of course, where the trial court directs counsel to prepare a draft order
    and counsel fails to do so, the trial court is not without remedy, including the
    contempt power, to require its orders be fulfilled.
    8
    to appeal in any given case would depend on whether the trial court
    timely carried out its duty to file a written order, effectively leaving
    the State’s right to appeal to the trial court’s discretion. But the
    statute allows the trial court no such role in approving the State’s
    appeal; the Morrell exception simply recognizes as much. Here, the
    focus is on the application of that exception at the intersection of the
    absence of a requested written order and the expiration of the right
    under OCGA § 5-7-1 (a) (4), (5), when jeopardy attaches.
    Here, the transcripts of the pretrial hearings, reflecting the
    interaction between the trial court and the State, provide some
    context for the trial court’s failure to enter written orders. But,
    standing alone, the transcripts are insufficient to establish the trial
    court’s refusal to enter written orders. The record, 6 however,
    affirmatively shows that the trial court refused the State’s request
    6 Morrell stated that the exception applies when the “transcript
    affirmatively shows” that the trial court refused the State’s request for a
    written order. (Emphasis supplied.) 
    281 Ga. at 152
     (2). Yet today we apply this
    exception where the record affirmatively shows that the trial court refused the
    State’s request for a written order. We do not read the language in Morrell to
    limit the exception only to refusals shown in the transcript. Rather, refusals
    otherwise reflected in the record will suffice.
    9
    for a written order. See Lynch, 
    286 Ga. at 99
    . Specifically, the trial
    court’s June 10 order, which pointed to the State’s failure to allege
    its statutory basis for appeal, affirmatively effectuates such refusal.
    Although the trial court’s June 10 order does not articulate an
    unequivocal refusal to enter written orders, the substance of the
    order combined with the circumstances under which the order was
    entered operated as a refusal. Critically, in addition to having
    requested a written order for the trial court’s ruling on the
    admissibility of the Almond Incident at the hearing on May 4, the
    State filed its motion for written orders – which made explicit the
    State’s intent to appeal all three of the trial court’s rulings and,
    therefore, its immediate need for written orders – on Friday, June
    10, the last business day before the trial’s scheduled start date of
    Monday, June 13. Given the impending trial, any further delay in
    entering written orders would have rendered nugatory the State’s
    right of appeal. See OCGA § 5-7-1 (a) (5) (requiring that the order
    decision or judgment be “ruled on prior to the impaneling of a jury
    or the defendant being put in jeopardy”). But despite its awareness
    10
    of the imminent trial, the trial court failed to fulfill its duty to
    memorialize in writing its oral rulings and instead, only hours
    before the close of business, entered a non-responsive order to the
    State’s time-sensitive request. Here, we conclude that the denial of
    a motion for a written order, when entered on the Friday afternoon
    before a trial scheduled for the next Monday, operates as a refusal
    for purposes of the exception articulated in Morrell. As a result,
    under the particular facts presented here, the Morrell exception is
    satisfied.
    Given our determination that an appeal is proper under
    Morrell, we must also determine whether it was timely. OCGA § 5-
    7-1 (a) (5) (A), which applies only to the trial court’s rulings on
    motions to exclude evidence to be used by the State at trial, requires
    the State’s notice of appeal to be “filed within two days of such order,
    decision, or judgment[.]” The trial court’s May 4 and May 27 oral
    rulings on Harris’s motion in limine occurred more than two days
    before the State’s June 10 notice of appeal was filed. The trial court’s
    refusal to issue written orders, however, occurred on June 10, the
    11
    same day that the State filed its notice of appeal. This case thus
    highlights an open question about when the two-day filing period
    commences under OCGA § 5-7-1 (a) (5) (A) in the absence of a
    written order. In other words, does the clock start when the trial
    court issues the oral ruling or when the trial court refuses the State’s
    request for a written order?
    Morrell generally mandates a written order, and it follows that
    the two-day filing period should commence at the time of the order’s
    entry. But in the absence of a written order, as here, the two-day
    filing period must commence with the trial court’s refusal of the
    State’s request to provide a written order. In determining the precise
    time of the refusal, the appellate court must engage in a case-specific
    factual inquiry, asking at what point, as affirmatively shown by the
    record, the trial court refused the State’s request. Here, the clock
    started on June 10 when the trial court declined to issue written
    orders in response to the State’s request earlier that day. Therefore,
    the State’s June 10 notice of appeal was timely.
    Case No. S23A0090
    12
    3. We now turn to the State’s contention that the trial court
    abused its discretion by excluding evidence of two prior shootings.
    Because the record reflects that the trial court’s analysis under Rule
    403 employed an erroneous legal standard, we agree.
    The State sought to admit evidence of the Almond and Hank
    Aaron Incidents as intrinsic evidence. 7 The trial court relied on Rule
    403 to grant Harris’s motion in limine and exclude the evidence of
    both incidents. In excluding the evidence of the Almond Incident,
    the trial court explained that the State was “not charging [Harris]
    with a crime spree.” When asked to elaborate on the “legal basis” of
    its decision, the trial court stated that the evidence was “highly
    prejudicial” and “not probative.” When excluding the evidence of the
    Hank Aaron Incident, the trial court reasoned that the evidence “is
    more prejudicial than probative,” the evidence “goes to bad
    character,” and the facts are not “intrinsically intertwined to the
    charges that are related to this case.”
    7 The State also sought to admit this evidence pursuant to OCGA § 24-4-
    404 (b), and the trial court denied its motion. The State does not challenge that
    ruling on appeal, and we do not address it.
    13
    On appeal, the State maintains that the evidence from the two
    prior shootings is admissible as intrinsic evidence and that the trial
    court’s exclusion of the evidence was an abuse of discretion. We
    review a trial court’s ruling regarding the admissibility of evidence
    as intrinsic for an abuse of discretion. See Harris v. State, 
    310 Ga. 372
    , 378 (2) (b) (
    850 SE2d 77
    ) (2020). But a trial court does not have
    discretion to apply an incorrect legal standard. See Welbon v. State,
    
    301 Ga. 106
    , 109-110 (2) (
    799 SE2d 793
    ) (2017) (“Where the trial
    court has used a wrong standard in reaching its conclusion, a
    remand may be appropriate[.]”). See also State v. Jackson, 
    351 Ga. App. 675
    , 677 (
    832 SE2d 654
    ) (2019) (“[W]hile the abuse-of-
    discretion standard presupposes a range of possible conclusions that
    can be reached by a trial court with regard to a particular
    evidentiary issue, it does not permit a clear error of judgment or the
    application of the wrong legal standard.”).
    Evidence may be admitted “as intrinsic evidence, rather than
    extrinsic evidence subject to Rule 404 (b), when it is (1) an
    uncharged offense arising from the same transaction or series of
    14
    transactions as the charged offense; (2) necessary to complete the
    story of the crime; or (3) inextricably intertwined with the evidence
    regarding the charged offense.” (Citation and punctuation omitted.)
    Harris, 310 Ga. at 377 (2) (b). “Intrinsic evidence must also satisfy
    Rule 403.” Williams v. State, 
    302 Ga. 474
    , 485 (IV) (d) (
    807 SE2d 350
    ) (2017). Whether the trial court concluded that the evidence at
    issue was intrinsic evidence or assumed as much and simply moved
    to analyze whether the evidence should be excluded under Rule 403
    is unclear. But we need not review whether the trial court found the
    evidence to be intrinsic because the trial court erred by applying an
    incorrect standard in its application of Rule 403.8
    Under Rule 403,
    [r]elevant evidence may be excluded if its probative value
    is substantially outweighed by the danger of unfair
    prejudice, confusion of the issues, or misleading the jury
    8 We note that, as to the Hank Aaron incident, the trial court commented
    that the evidence “basically is bad character evidence.” That conclusion,
    standing alone, is not grounds to deem intrinsic evidence inadmissible because,
    as this Court has explained, “intrinsic evidence remains admissible even if it
    incidentally places the defendant’s character at issue.” (Citation and
    punctuation omitted.) Harris, 310 Ga. at 378 (2) (b). If, on remand, the trial
    court determines that this evidence is not admissible as intrinsic evidence, we
    note further that the trial court already considered and determined that the
    evidence was not admissible as extrinsic evidence under Rule 404 (b).
    15
    or by considerations of undue delay, waste of time, or
    needless presentation of cumulative evidence.
    The trial court never recited the correct standard under Rule
    403. Rather, in both rulings, the trial court applied a different,
    incorrect standard in determining whether to exclude the evidence
    under Rule 403. First, the trial court stated that the evidence of the
    Almond Incident was “highly prejudicial” and “not probative.” But it
    is not enough that the trial court considered the evidence to be
    “highly prejudicial”; rather, the court must assess the danger of
    unfair prejudice. See OCGA § 24-4-403; Middlebrooks v. State, 
    310 Ga. 748
    , 751 (2) (b) (
    854 SE2d 503
    ) (2021) (“[A]ll inculpatory
    evidence is inherently prejudicial; it is only when unfair prejudice
    substantially outweighs probative value that the rule permits
    exclusion.” (citation and punctuation omitted; emphasis in
    original)). See also Harris v. State, 
    314 Ga. 238
    , 263 (3) (a) (
    875 SE2d 659
    ) (2022) (“Rule 403’s term ‘unfair prejudice’ speaks to the
    capacity of some concededly relevant evidence to lure the factfinder
    into declaring guilt on an improper basis rather than on proof
    16
    specific to the offense charged.”).
    Second, the trial court stated that the evidence of the Hank
    Aaron Incident is “more prejudicial than probative.” But the proper
    standard requires the trial court to determine whether “the
    probative value [of the evidence] is substantially outweighed by the
    danger of unfair prejudice[.]” (Emphasis supplied.) OCGA § 24-4-
    403. See, e.g., Jackson, 351 Ga. App. at 677 (remanding because the
    trial court erred in applying the wrong standard under Rule 403
    when it determined that the probative value was not outweighed –
    rather than not substantially outweighed – by the danger of unfair
    prejudice).
    Accordingly, the trial court erred when it incorrectly applied
    Rule 403 to exclude the evidence of the Almond Incident and the
    Hank Aaron Incident. The trial court’s order must therefore be
    vacated and the case remanded for the trial court to reconsider the
    motion under the correct legal standard and consistent with the
    directions of the Court. See State v. Atkins, 
    304 Ga. 413
    , 423 (2) (c)
    (
    819 SE2d 28
    ) (2018).
    17
    Case No. S23A0091
    4. The State argues that the trial court abused its discretion by
    granting     Harris’s    motion     to    suppress     Ndetti’s    out-of-court
    identification of Harris because her identification was merely
    “confirmatory.” Because we cannot determine whether the trial
    court applied the correct legal standard, we vacate its grant of the
    motion to suppress and remand for proceedings consistent with this
    opinion.
    Police investigators interviewed Ndetti with her husband,
    Sammie Glenn, on two occasions. The trial court was informed
    through the representations of defense counsel that during the first
    interview, the investigators were “impermissibly suggestive,
    aggressive, [and] intimidating” toward Ndetti and Glenn. 9 The
    second interview began with a different investigator, Detective
    Danny Agan, asking if Ndetti or Glenn were familiar with the
    9The audio recording of this first interview is not contained in the record.
    Instead, the interaction was only described by Harris’s counsel during the
    pretrial hearings.
    18
    shooting. 10 Ndetti said yes and explained that on the day Jones was
    shot, a person named “Low”11 came to her apartment to give money
    to Glenn. Shortly after “Low” left the apartment, Ndetti heard
    gunshots. She described “Low” as a “big man” and explained that
    over the past year, he had periodically brought money to Glenn. Just
    before the interview concluded, Detective Agan showed Glenn and
    Ndetti a single photograph depicting Harris and asked “Who is that
    right there?” Ndetti responded “That’s him” and Detective Agan
    confirmed that she was referring to the man she knew as “Low.”
    In a pretrial motion, Harris moved to suppress the out-of-court
    identification. The trial court granted Harris’s motion, finding that
    the “identification was highly suggestive” and that it “also meets the
    second prong.” The court further noted that it “got the impression
    that [the witnesses] were being steered toward a certain outcome,”
    it was sure the witnesses knew “more than one big guy,” “no other
    10  Unlike the first interview, the trial court heard testimony from
    Detective Agan about the second interview and an audio recording of the
    interview.
    11 Ndetti referred to the shooter as “Low” and “Felipe,” Harris’s
    reportedly recognized nicknames.
    19
    photos were presented,” and “the answers were fed, or suggested, to
    them by the detective.”
    On appeal, the State argues that this ruling was erroneous
    because although the investigator only used one photograph, Ndetti
    was merely confirming a known acquaintance. We review a trial
    court’s ruling on a motion to suppress identification evidence for an
    abuse of discretion. See Newton v. State, 
    308 Ga. 863
    , 866 (2) (
    843 SE2d 857
    ) (2020).
    “Evidence of an out-of-court identification violates due process
    and is inadmissible at trial if the identification procedure is so
    impermissibly suggestive that it could result in a substantial
    likelihood of misidentification.” (Citation and punctuation omitted.)
    Id. at 865 (2). “An identification procedure is unduly suggestive
    when it leads the witness to the virtually inevitable identification of
    the defendant as the perpetrator, and is equivalent to the
    authorities telling the witness, ‘This is our suspect.’” (Citation and
    punctuation omitted.) Id.
    The trial court did not abuse its discretion by concluding that
    20
    Detective Agan’s use of a single photograph was impermissibly
    suggestive. See Leeks v. State, 
    309 Ga. App. 724
    , 727 (2) (
    710 SE2d 908
    ) (2011) (“[D]isplaying a single photograph to a witness is
    impermissibly suggestive.”). But even where the identification
    procedure was impermissibly suggestive, the identification may be
    excluded only if a substantial likelihood of misidentification exists.
    Newton, 308 Ga. at 867 (2).
    In determining whether there is a substantial likelihood of
    misidentification, a trial court must look to the “totality of the
    circumstances[.]” State v. Hattney, 
    279 Ga. 88
    , 89 (
    610 SE2d 44
    )
    (2005). Several factors are considered when determining the
    likelihood of misidentification, including:
    (1) the 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 accused;
    (4) the witness’ level of certainty at the confrontation;[12]
    12We note an apparent discrepancy between the factor concerning “the
    witness’ level of certainty at the confrontation” and our holding in Brodes v.
    State, 
    279 Ga. 435
     (
    614 SE2d 766
    ) (2005). In Brodes, we instructed 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
    . While it
    21
    and (5) the length of time between the crime and the
    confrontation.
    Lewis v. State, 
    314 Ga. 654
    , 670 (6) (b) (
    878 SE2d 467
    ) (2022).
    “Moreover, whether the witness knows the defendant is a critical
    factor in determining the reliability of an identification.” 
    Id.
    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. See Hattney, 
    279 Ga. at 90
     (“If the trial court determines that [the witness] had known [the
    suspects] for a sufficient period of time so that his out-of-court
    identification of them pursuant to the single photograph show-ups
    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). See Pearson
    v. State, 
    311 Ga. 26
    , 29 n.5 (2) (
    855 SE2d 606
    ) (2021) (noting that despite our
    holding in Brodes, “Georgia courts have continued, as we are obliged to do on
    matters of federal constitutional law, to follow the holding of the United States
    Supreme Court in Neil”). Additionally, because no one has asked us to consider
    this issue as a matter of due process under the Georgia Constitution, we decline
    to do so today.
    22
    was   reliable        and   not   subject   to    a   substantial   risk   of
    misidentification, then evidence of the out-of-court identification
    would be admissible.”). See, e.g., Newton, 308 Ga. at 867 (concluding
    that the defendant failed to show a substantial likelihood of
    misidentification where the witness told investigators that he knew
    the defendant for two years prior to the shooting and that he saw
    him near the scene of the crime that night); Pruitt v. State, 
    270 Ga. 745
    , 751-752 (15) (
    514 SE2d 639
    ) (1999) (concluding that there was
    no substantial likelihood of misidentification regardless of whether
    the photographic lineup was impermissibly suggestive because the
    witness testified that she recognized the defendant as a regular
    customer at her store and that she remembered seeing him at the
    store on the night of the murder). Rather, the use of photographs
    under such circumstances functionally serves the purpose of
    confirming the suspect’s identity. See Gibson v. State, 
    283 Ga. 377
    ,
    378-379 (2) (
    659 SE2d 372
    ) (2008) (“[S]howing [the witness] a single
    photograph       of    defendant    merely       confirmed   her    previous
    identification of him.”). See also Walker v. State, 
    295 Ga. 688
    , 693
    23
    (3) (
    763 SE2d 704
    ) (2014) (concluding that presenting a single
    photograph to a witness to confirm the defendant’s identity “created
    no substantial likelihood of misidentification” because the witness
    testified that she knew the defendant for 11 years, spent a lot of time
    with his family, and saw the defendant on the day of the shooting);
    Lewis, 314 Ga. at 670-671 (6) (b) (concluding that the investigator’s
    use of a single photograph “did not create a substantial likelihood of
    misidentification” where the witness told the investigator that he
    knew the defendant, placed the defendant at the scene of the crime
    that night, provided a description of the defendant, and rejected
    three prior photos of other men); Williams v. State, 
    272 Ga. 828
    , 829
    (2) (
    537 SE2d 39
    ) (2000) (“Given [the witness’s] testimony that she
    had seen appellant in the neighborhood on several prior occasions,
    knew him by his nickname, knew where his family lived, and had
    clearly seen his face during the commission of the crime, we find that
    the in-court identification was independent of the pretrial
    photographic identification thereby indicating its reliability.”).
    But, here, it is not clear to what extent the trial court
    24
    considered the “critical factor” of substantial likelihood of
    misidentification despite significant evidence of Ndetti’s familiarity
    with Harris, including her statement that he periodically visited her
    home and left her apartment moments before the shooting. Indeed,
    the trial court simply mentioned that the “second prong” was met
    and that the trial court was “sure [the witnesses] know more than
    one big guy,” with no apparent consideration of Ndetti’s familiarity
    with Harris. We decline to consider in the first instance whether
    Ndetti’s familiarity required the trial court to determine, as a matter
    of law, that there was no substantial likelihood of misidentification.
    Rather, we vacate the trial court’s grant of Harris’s motion to
    suppress Ndetti’s identification and remand for the trial court to
    reconsider the motion under the standards set forth above.13
    Judgments vacated and case remanded with direction in Case
    Nos. S23A0090 and S23A0091. All the Justices concur.
    13 After the trial court granted Harris’s motion to suppress, it discussed
    and left open the possibility of an in-court identification by Ndetti or Glenn.
    We note that if, upon remand, the trial court again grants Harris’s motion to
    suppress Ndetti’s out-of-court identification, it cannot, despite its suggestion
    to the contrary, allow an in-court identification by Ndetti. See Hattney, 
    279 Ga. at 90
    .
    25