Bennett v. State

Stephen Lamar Bennett was convicted of one count of child molestation. His amended motion for new trial was denied, and he appeals, asserting four enumerations of error. We find no reversible error and affirm. 1. Bennett contends the trial court erred in instructing the jury that it could consider “level of certainty” in assessing the reliability of an eyewitness identification. The trial court gave the then current pattern instruction, Council of Superior Court Judges, Suggested Pattern Jury Instructions, 3d ed. 2003, § 1.35.10, later disapproved by the Georgia Supreme Court in Brodes v. State , 279 Ga. 435, 442 614 SE2d 766 2005. In Brodes , the Supreme Court reversed, concluding that under the circumstances of that case the “level of certainty” portion of the charge was harmful error, in light of the “lack of correlation between a witness’s certainty in his or her identification of someone as the perpetrator of a crime and the accuracy of that identification.” Id.

The circumstances of this case, however, are quite different. In Brodes , the victims identified Brodes at trial as the perpetrator and testified they were ” ‘absolutely certain’ ” of the identification. Id. at 435. But “ the only evidence connecting Brodes to the crimes was the eyewitness identification of him by the two victims, one of whom was unable to pick Brodes’s photo in a photo array, and the other of whom was able to describe to police the weapon used in the crimes but was unable to give any physical characteristics of the perpetrator.” Id. at 442. Similarly, in Brown v. State , 277 Ga. App. 396 626 SE2d 596 2006, we reversed because “the only evidence linking Brown to the crime was the victim’s identification testimony.” Id. at 397 2.