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 
2

lot of an apartment building at 20 Vanira Avenue in Atlanta.1

Surveillance video recordings2 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. 
3

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 incident3 (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.
4

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 singlephotograph 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. 
5

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 
6

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 
7

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 
8

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 

 5 Of 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. 
9

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. 
10

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 
11

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 
12

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
13

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. 
14

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-ofdiscretion 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 
15

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). 
16

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 
17

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).
18

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 

 9 The 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. 
19

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. 
20

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 
21

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]

 12 We 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 
22

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. 
23

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 
24

(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 
25

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.