A jury found Billy Creamer guilty of four counts of aggravated assault and possession of a firearm during the commission of a crime in connection with a drive-by shooting. In a one-page argument, Creamer contends the trial court erred in giving the “level of certainty” portion of the jury charge on the reliability of eyewitness identification. He argues that the “level of certainty” portion of this charge contravenes the recent holding in Brodes v. State .1 However, Creamer himself requested the very charge containing the “level of certainty” language. The record shows that Creamer’s counsel orally requested a “standard request to charge” on the reliability of eyewitness identification. The trial judge stated that he would give the charge if Creamer’s counsel requested it. The assistant district attorney then asked to hear the standard charge, and the trial judge allowed both Creamer’s counsel and the state to read and review the pattern charge. No objections to the charge were raised at this time. After the charge was read to the jury, Creamer’s counsel objected to the “level of certainty” portion of the jury charge, but did not request the trial court to recharge the jury. The trial court specifically noted that Creamer’s counsel was the one who requested the jury charge. Creamer’s counsel acknowledged that he had requested the charge, but stated that he “just . . . didn’t see that.”
Pretermitting whether Creamer is procedurally barred from arguing that the jury charge, given in accordance with his own request, constitutes reversible error,2 we find it highly probable that any error in the giving of the charge did not contribute to the judgment. The “level of cretainty” portion of the identity charge was therefore harmless.
