Boykin v. State
| Citation | 592 S.E.2d 426,264 Ga. App. 836 |
| Decision Date | 03 December 2003 |
| Docket Number | No. A03A1689.,A03A1689. |
| Parties | BOYKIN v. The STATE. |
| Court | United States Court of Appeals (Georgia) |
OPINION TEXT STARTS HERE
Lee W. Fitzpatrick, for appellant.
Marco Boykin, pro se.
Patrick H. Head, District Attorney, Henry R. Thompson, Irvan A. Pearlberg, Dana J. Norman, Assistant District Attorneys, for appellee. JOHNSON, Presiding Judge.
Marco Boykin and Johnny Felton were indicted for several offenses which arose after they hijacked the victim's car at gunpoint and were then caught, less than an hour later, in possession of the victim's car, a bag of marijuana, and several rocks of crack cocaine. After co-defendant Felton pled guilty and testified for the state, a jury convicted Boykin of armed robbery, hijacking a motor vehicle, kidnapping, possession of cocaine with intent to distribute, and possession of marijuana. Boykin appeals, alleging the evidence was insufficient to support his convictions, the trial court erred in permitting the introduction of evidence, the trial court erred in refusing to merge two of his convictions, and he received ineffective assistance of trial counsel. We find no error, and affirm Boykin's convictions.
Viewed in a light most favorable to support the jury's verdict, the evidence shows that the victim, the owner of a Mitsubishi Montero, let Boykin stay at his apartment when Boykin had little money. Around the same time, Felton began doing odd jobs for Boykin at his family's taxi business. On October 7, 1999, Boykin asked Felton to drive with him to pick up some money. Subsequently, Boykin drove into an apartment complex, gave Felton a handgun, and told Felton to take the victim's car.
Before the victim got out of his car, Felton approached him with the handgun and ordered the victim to hand over his keys, exit the Montero, and lie on the ground. The victim complied, and Felton ordered him to empty his pockets. Felton took $10, an ATM card, and a crumpled piece of paper with a PIN code on it, then drove off in the Montero. Boykin drove his car out of the parking lot and Felton followed in the Montero. After driving for some time, the cars parked side by side in a hotel parking lot. Felton left the victim's Montero and got into Boykin's car, went back to the Montero for a short time, then returned to Boykin's car.
Meanwhile, the victim reported the hijacking and a police dispatcher radioed for officers to be on the lookout for the vehicles and the hijackers. An officer in a precinct parking lot heard this dispatch and, to his surprise, saw the suspect vehicles drive into a parking lot next to where he was standing. The officer watched the vehicles and observed a man matching the description of one of the hijackers. After verifying that the Montero was, in fact, the hijacked vehicle, the officer approached Boykin's car and told the men to exit the car. An officer who assisted with the arrest saw Felton drop a handgun on the seat as he exited the car.
After Boykin and Felton were placed in police cars, the victim arrived and positively identified Felton as the armed hijacker. A search of Boykin's car revealed the loaded handgun. Officers also found a small blue bag of marijuana in the front seat, lying in plain view between where Boykin and Felton had been sitting, and seven yellow bags of crack cocaine "under the driver's side floorboard, which would have been under Mr. Boykin's feet." In addition, Felton had one rock of crack cocaine in his pocket. It was packaged like the crack cocaine found under Boykin's feet.
A detective interviewed Felton less than five hours after the hijacking incident. Felton indicated that he understood his rights and then told the detective how he and Boykin had committed the offenses. Felton specifically told the detective that Boykin gave him the handgun and ordered him to "[m]ake the man get out of his car and drive it back."
Boykin testified at trial that he was giving Felton a cab ride when Felton pulled a gun and tried to rob him. When Felton learned that Boykin had no money, Felton ordered Boykin to pull behind the Montero. After Felton left the vehicle to rob the victim, Boykin left in an attempt to get away. When he realized Felton was following him in the Montero, he pulled into the police precinct in an attempt to get away.
1. Boykin first challenges his convictions for armed robbery, hijacking, and kidnapping, arguing that the only evidence linking him to these offenses is the uncorroborated testimony of Felton, his co-defendant. This assertion, however, ignores eyewitness testimony that placed Boykin's car at the crime scene and placed Boykin and Felton together with the victim's stolen car less than an hour after the hijacking.
"Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime."1 And, while such a participant may not be convicted on the uncorroborated testimony of an accomplice, only slight evidence from an extraneous source identifying the accused as a participant in the crime is needed to corroborate the accomplice's testimony and support a guilty verdict.2 In the present case, there is sufficient evidence corroborating Felton's testimony.
The victim testified that a car similar to Boykin's blocked him in at the crime scene, and the victim corroborated Felton's account of how the crimes were committed. The victim further testified that he watched Felton drive off in his Montero, following close behind the car that matched Boykin's car. An officer testified that he spotted both cars moments after hearing a dispatch alert and saw them follow each other into a hotel parking lot. The officer further testified that he saw Felton get out of the Montero, enter Boykin's car, return to the Montero, and then once again enter Boykin's car. The officer also testified about the handgun and drugs found in Boykin's car. Another officer fully corroborated the first officer's testimony. And, a detective testified about his interview with Felton, which corroborated Felton's trial testimony. Clearly, this testimony provides more than slight evidence corroborating Felton's testimony, and the evidence was sufficient to prove Boykin guilty beyond a reasonable doubt of armed robbery, hijacking, and kidnapping.3
Boykin contends the evidence did not support his kidnapping conviction because the victim's testimony that Felton ordered him to the ground was insufficient to support the asportation element of the kidnapping offense. We disagree. "A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will."4 The distance which a kidnapper abducts his victim is without legal significance under Georgia law.5 Only the slightest movement of the victim is required to constitute the necessary element of asportation.6
While Boykin correctly points out that shoving a victim without moving the victim from one location to another, or merely pushing a victim to the ground, is not sufficient to satisfy the element of asportation, he fails to acknowledge that moving the victim from a seated position on a concrete block to the dirt behind the concrete block has been held to be sufficient to show asportation.7 Here, the victim testified that Felton approached him before he exited the Montero and told him to "get out, give me the keys, get down." The jury was authorized to conclude that Felton moved the victim from his position in the Montero to a position on the ground, and this evidence of asportation was sufficient to support the jury's finding that Boykin was guilty beyond a reasonable doubt of kidnapping.
2. Boykin claims that Felton had equal access to the cocaine and marijuana at issue in this case and that the evidence was insufficient to support his convictions for possession of cocaine with intent to distribute and possession of marijuana. He further asserts that Felton's uncorroborated testimony that he took the marijuana from the victim and that he knew nothing about the cocaine found under Boykin's feet was insufficient to authorize Boykin's drug convictions. This enumeration of error lacks merit.
Although a conviction based on joint constructive possession requires more than mere spatial proximity to the contraband, "if all occupants of a vehicle had equal access to contraband, they may be found in joint constructive possession."8 Here, the officers testified that they found a small blue bag of marijuana in the front seat of Boykin's car, lying in plain view between where Boykin and Felton had been sitting. The officers also testified that they found seven yellow bags of crack cocaine "under the driver's side floorboard, which would have been under Mr. Boykin's feet." In addition, Felton had one rock of crack cocaine in his pocket, and this cocaine was packaged like the crack rocks found under Boykin's feet. And, Felton testified that he took the marijuana from the victim during the hijacking which Boykin arranged. This evidence authorized the finding that Boykin was in joint constructive possession of the marijuana and cocaine. The jury was authorized to conclude that Boykin was guilty beyond a reasonable doubt of possession of marijuana and possession of cocaine with intent to distribute.9
3. The state offered two letters that Boykin sent to Felton from jail. These letters were offered to impeach Boykin's claim that he never apologized to Felton for getting him in trouble. Boykin contends the trial court erred in allowing these exhibits into evidence, arguing that the state failed to provide these documents in compliance with his discovery requests under OCGA § 17-16-1 et seq. Because Boykin did not ask for a continuance and did not show that he was prejudiced because of this alleged discovery violation, or show that the state acted in bad faith in failing to...
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