Alatise v. State

• Decision Date: 18 June 2012
• Docket Number: No. S12A0024.,S12A0024.
• Citation: 728 S.E.2d 592,12 FCDR 1906,291 Ga. 428
• Parties: ALATISE v. The STATE.
• Court: Georgia Supreme Court

291 Ga. 428

728 S.E.2d 592

12 FCDR 1906

ALATISE

v.The STATE.

No. S12A0024.

Supreme Court of Georgia.

June 18, 2012.

David Keith Keeton, Asst. Dist. Atty., District Attorney's Office, Daniel J. Porter, Dist. Atty., Office of the District Attorney, Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Brittany Nicole Jones, Asst. Atty. Gen., Department of Law, for appellee.

MELTON, Justice.

Following a jury trial, Tunde Alatise appeals his conviction for the felony murder and aggravated assault of Aurelio German Mendoza–Garcia,¹ CONTENDING THAT the trial court made a number of evidentiary errors. For the reasons set forth below, we affirm.

[291 Ga. 429]1. Viewed in the light most favorable to the verdict, the record shows that, at around 9:30 p.m. on the evening of July 8, 2006, Guadalupe Diaz noticed two black men walk behind the blue Mustang in which Mendoza–Garcia was sitting at the Bristol Court Apartments. Diaz went inside, but returned five minutes later when she heard a loud noise. She found the Mendoza–Garcia in a breezeway, bleeding profusely from a gunshot wound. Just before dying, Mendoza–Garcia stated that he had been shot by a black man. On the same night, police were also called to investigate the hijacking of a red Acura Integra by two black males in Kendall Creek Apartments, approximately an hour and a half after Mendoza–Garcia's shooting. Subsequently, Leausha Nicholson was found driving the stolen car, and, after talking to her, police became interested in her brother, Javon. When interviewed, Javon implicated Alatise in the shooting of Mendoza–Garcia and the subsequent theft of the red Integra. Detectives thereafter obtained and served an arrest warrant on Alatise. On direct examination at trial, Javon testified that he and Alatise intended to rob Mendoza–Garcia. Alatise approached Mendoza–Garcia, a struggle ensued, and Alatise shot the victim.² Javon also testified that he and Alatise later stole the red Acura Integra. Alatise's fingerprint was found inside this stolen car. In addition, similar transaction evidence of ten other armed robberies and/or car jackings were admitted into evidence, eight of which Alatise confessed to committing after being arrested.

This evidence was sufficient to enable the jury to find Alatise guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Alatise contends that the trial court erred by failing to charge the jury that Javon's entire testimony should be disregarded because he willfully gave false testimony in a material matter. See OCGA § 24–9–85. We disagree. Alatise neither requested this charge nor objected when it was not given. As a result, we review this enumeration of error only to determine whether the failure to give the charge constitutes plain error. State v. Kelly, 290 Ga. 29, 718 S.E.2d 232 (2011). The test to determine plain error is as follows:

First, there must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

(Punctuation and emphasis omitted.) Id. at 33(2)(a), 718 S.E.2d 232. Pretermitting whether Alatise met his burden with regard to the first and second prongs of this test, we find the omission of a specific instruction on OCGA § 24–9–85 did not affect the outcome of the trial proceedings. A review of the charge in its entirety, which included instructions on impeachment and the credibility of witnesses, establishes that any error in the court's failure to give a charge based on OCGA § 24–9–85(b) was harmless. Evans v. State, 209 Ga.App. 340(2), 433 S.E.2d 426 (1993).

3. Alatise contends that police officers lacked probable cause at the time of his arrest, and, as a result, all of his statements following his arrest should have been suppressed. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Specifically, Alatise argues that his arrest warrant was wholly and improperly based on inconsistent and untrustworthy information provided by Javon.

Prior to speaking with Javon, however, investigators knew he was the brother of the woman found to be driving a vehicle taken at gunpoint by two black males a short time after and a short distance from the scene of Mendoza–Garcia's murder. Javon stated that he had been at the scene of Mendoza–Garcia's shooting. Javon stated that he heard Alatise say “He grabbed me so I shot him.” This information provided by Javon was corroborated by the facts and circumstances that police officers had independently gathered from the scene of Mendoza–Garcia's shooting. “As the result of [Javon's] confession, which incriminating statements were consistent with information the officers had gained from independent investigation, the officers had reasonably trustworthy information to conclude that [Alatise] was involved in the murder of [Mendoza–Garcia].” Morgan v. State, 241 Ga. 485, 487(1), 246 S.E.2d 198 (1978). The trial court did not err by denying Alatise's motion to suppress.

4. Alatise argues that evidence of ten similar transactions was admitted in error because the similar transactions were not sufficiently similar to the crime in question. This contention lacks merit.

Evidence of independent acts or similar transactions must satisfy three elements to be admitted: (1) the evidence must be introduced for a proper purpose; (2) the evidence must establish by a preponderance of the evidence that the defendant perpetrated the similar transaction; and (3) the two transactions must be sufficiently similar or connected so that the existence of the former transaction tends to prove the latter transaction. [Cits.] Bryant v. State, 282 Ga. 631, 634(3), 651 S.E.2d 718 (2007). The evidence is not to be admitted, however, if it merely raises an improper inference about the character of the accused. Humphrey v. State, 281 Ga. 596, 598(2), 642 S.E.2d 23 (2007). To be admissible, an independent act “does not have to mirror every detail” of the crime charged, Collum v. State, 281 Ga. 719, 723(4), 642 S.E.2d 640 (2007), and may reflect only a portion of the acts that establish the crimes being tried. See, e.g., Oliver v. State, 276 Ga. 665, 667(3), 581 S.E.2d 538 (2003) (Evidence of defendant's entry by key into the apartments of women, “ostensibly for maintenance purposes,” was sufficiently similar to charges of malice murder and burglary, which crimes included the unforced entry of the victim's apartment.). And, “similar transaction evidence is not limited to a defendant's previous illegal conduct. [Cit.]” Phagan v. State, 268 Ga. 272, 279(4), 486 S.E.2d 876 (1997). “[W]hen similar transaction evidence is used to show bent of mind, course of conduct, motive or intent, ‘a lesser degree of similarity is required than when such evidence is introduced to prove identity.’ [Cit.]” Barnes v. State, 287 Ga. 423, 426(3), 696 S.E.2d 629 (2010). “A trial court's decision to admit similar transaction evidence will not be disturbed absent an abuse of discretion. [Cit.]” Moore v. State, 288 Ga. 187, 190(3), 702 S.E.2d 176 (2010).

Chua v. State, 289 Ga. 220, 232(2), 710 S.E.2d 540 (2011).

A review of the record shows that, in nine out of the ten transactions, individuals were approached and subjected to an armed robbery attempt while they were walking in the parking lots of apartment complexes. In the tenth case, an employee at a fast food establishment was shot after refusing to open a store safe. In some cases, the victims were carjacked, and the stolen cars were found in the parking lot of the apartment complex where Javon lived. In a number of the robberies, the victims stated that the perpetrators were comprised of two black males and one white male (like Alatise and his co-defendants). All of the crimes occurred in a relatively small area and reflected a similar modus operandi. They were sufficiently similar to the crime against Mendoza–Garcia and were properly admitted. Id. 5. Alatise contends that the trial court erred by denying his motion for a directed verdict, arguing that there was no competent evidence to corroborate the testimony of his co-defendant, Javon. In this case, however, Javon's testimony found corroboration in the...