Following a jury trial, Anthony Paige appeals from his convictions of aggravated assault with intent to rape, aggravated battery, aggravated assault with a deadly weapon, and aggravated assault.1 Paige asserts the trial court erred by: 1 denying his motion to suppress the victim’s identification testimony; 2 failing to exercise its discretion to probate or suspend a portion of his sentence; and 3 allowing improper victim impact evidence during the sentencing hearing. He also contends that he received ineffective assistance of counsel. We find no merit in any of Paige’s enumerations of error, and we affirm the judgment. 1. Paige claims the victim’s identification testimony was tainted and should have been suppressed because the victim was shown a photograph of the defendant by a private citizen before she identified him in a police line-up. We find no merit in this enumeration because police did not employ the suggestive procedure of which Paige complains. The due process protection of the Fourteenth Amendment to the United State Constitution protects the citizens against state action rather than against citizen action. In order for the Fourteenth Amendment to come into play in an identification procedure, state action must be involved. Citation and punctuation omitted. Nowlin v. State , 225 Ga. App. 447, 449-450 3 484 SE2d 14 1997. See also Sweet v. State , 278 Ga. 320, 322 1 602 SE2d 603 2004. In cases not involving state action, a witness’s credibility in identifying the defendant is a matter for the jury to decide. Dunn v. State , 262 Ga. App. 643, 645 2 586 SE2d 352 2003; Thomas v. State , 247 Ga. App. 798, 800 2 545 SE2d 354 2001.
Paige claims that the Georgia Supreme Court’s decision in Sweet , supra, supports his argument that suppression is required even in the absence of state action. We disagree. The Supreme Court clearly held that “the principle expressed in Neil v. Biggers , 409 U. S. 188 93 SC 375, 34 LE2d 401 1972, deals with the suggestiveness of an identification procedure used by police, and applies only to state action.” Citations and punctuation omitted. 278 Ga. at 322 1. While the Supreme Court also noted that the witness’s in-court identification had an independent origin and was therefore “not constitutionally inadmissible,” this alternative analysis does not mandate suppression in cases lacking state action. See id. In Sweet , the Supreme Court was analyzing an ineffective assistance of counsel claim, and its decision to employ an alternative analysis in upholding the trial court’s denial of a motion for new trial on this ground should not be construed as a change in the law regarding suppression of identification testimony.
