Armstrong v. State

• Decision Date: 20 November 2013
• Docket Number: No. A13A1490.,A13A1490.
• Citation: 325 Ga.App. 33,752 S.E.2d 120
• Parties: ARMSTRONG v. The STATE.
• Court: Georgia Court of Appeals

325 Ga.App. 33

752 S.E.2d 120

ARMSTRONG

v.The STATE.

No. A13A1490.

Court of Appeals of Georgia.

Nov. 20, 2013.

John Walter Kraus, for Appellant.

Tracy Graham-Lawson, Dist. Atty., Frances C. Kuo, Asst. Dist. Atty., for Appellee.

RAY, Judge.

After a jury trial, Dexter Otis Armstrong was convicted of seven counts of aggravated assault (OCGA § 16–5–21(a)(1)).¹ He appeals from those convictions and from the denial of his motion for new trial, arguing that the trial court erred in failing to give requested jury instructions, in allowing a witness to give improper character evidence, and in failing to replace a sleeping juror with an alternate juror. He also challenges the sufficiency of the evidence and contends that his trial counsel rendered ineffective assistance. Armstrong further argues that he should be acquitted because he was not tried within two terms of court despite his demand for a speedy trial. Finding no reversible error, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict.” (Citation and punctuation omitted.) Moore v. State, 319 Ga.App. 696, 738 S.E.2d 140 (2013). See also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). So viewed, the evidence shows that on October 19, 2008, an armed man, later identified as Gary Mathis, entered the Thai Video store in Riverdale where Steven Ratsamy, Kelly Babb, Bounmy Kong, Mose Brown, Maceo Hill, and another man, known as Anthony, were playing poker and watching television. Mathis pointed his gun at the men and yelled “ATF, get on the ground.” Believing the store was being raided by the government, the customers got down on the floor. A shot was then heard throughout the store, and it was later discovered that the store's owner had been shot.

The witnesses were lying face down during much of the incident, but they testified that they heard the voices of at least three perpetrators. Ratsamy testified that a second man, who was muscular and dark-skinned, pointed a gun at him and said “I want to shoot you.” After searching the store and stealing what they could, Ratsamy heard the men ask “Where the money at? This ain't all of it. This ain't enough. Where it at? You know where the money at.” Ratsamy testified that the men then stole his “car payment money” from him. Hill testified that the men stole about $600 or $700 from him.

Two of the perpetrators then took Kong, one of the store's employees, to the back office and showed them the dead body of his father-in-law, the store's owner. Kong was then asked “Where's the money? Where's the money?” A perpetrator pointed a gun at Kong and told him “I'm going to shoot you right now.”

Mose testified that while he was hiding under a table, he heard one of the perpetrators yell out “I lost my telephone. Call Black. Call Black.” After the robbery, the perpetrators remained inside the store searching for the cell phone. One of the men stole a cell phone from a customer. The missing cell phone was eventually located when the man used the stolen phone to call the missing one. Once the phone was found, the perpetrators fled the store.

Upon responding to the scene, police officers observed the body of a deceased Asian male in the back room. He had $3,700 in his pocket and a bloody $100 bill in his hand. The victim died of a gunshot wound to the neck.

Teresa Anderson was Armstrong's live-in girlfriend at the time of the incident. Anderson testified that on the day of the incident, Armstrong left their home at approximately 8:30 a.m. and took his son's cell phone with him. At approximately 1:30 p.m., Armstrong called Anderson from his son's cell phone and urgently asked her to meet him at a nearby gas station. At the gas station, Armstrong got into Anderson's car and said, “I got something I need to tell you, but I don't want to tell you.” He then told her that he and his friends, Mathis and Kilgore, had robbed a video store. He further told her that, during the robbery, the store's owner had pointed a gun at Armstrong and Mathis had shot the store's owner. Armstrong then gave Anderson $650 and asked her to take it home. When she refused, Armstrong concealed it in Anderson's car and drove away in his own car. Before they parted, he showed her an additional $600 that he had “stashed” and said that the other men were unaware of it. Anderson testified that she and Armstrong were being evicted from their apartment the following day, and that Armstrong used the robbery proceeds to pay for cell phone bills and car repairs.

The State presented evidence of cell phone records showing that, shortly before 1:00 p.m. on the day of the robbery, a call was placed from Armstrong's son's cell phone to Kilgore's (Armstrong's co-defendant) cell phone. Cell phone records also showed that Armstrong's son's cell phone was used to call Anderson at 1:11 p.m. There was also evidence that Armstrong's son's cell phone was in close proximity to the cell phone tower closest to the Thai Video store during the time of the incident.

1. Armstrong contends that the evidence presented by the State was insufficient to authorize his convictions for aggravated assault, arguing that the evidence presented was insufficient to place him at the scene of the crime because none of the witnesses positively identified him as a perpetrator at the scene and his fingerprints were not among those recovered from the scene. He argues that the only evidence placing him at the scene is the testimony of his girlfriend, Anderson, and that such evidence, standing alone, was insufficient to convict him. We disagree.

When reviewing whether the evidence was sufficient to support the conviction,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crimes charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all the evidence is to be considered in the light most favorable to the prosecution.

(Footnote and punctuation omitted.) Roberts v. State, 322 Ga.App. 659, 662(2)(a), 745 S.E.2d 850 (2013).

The State presented the testimony of Anderson, Armstrong's girlfriend, that Armstrong had confessed that he was at the Thai Video store, that he had participated in the robbery, that Kilgore had saved his life when the store's owner pointed a gun to his head, and that he had at least $650 in proceeds from the robbery. However, this was not the only evidence presented at trial. The State also presented the testimony of several of the customers that at least three men were present at the store and at least two of the men had guns. The State also presented circumstantial evidence that Armstrong was at the store at the time of the robbery based on cell phone records reflecting that a call he made from a cell phone in his possession placed him near the store and that he had called one of his co-conspirators prior to the robbery. Although there was no scientific evidence or eyewitness identification of Armstrong,

[i]t is well settled that circumstantial evidence can be sufficient to authorize a findingof guilt beyond a reasonable doubt.... Questions of reasonableness are generally decided by the jury, and this Court will not disturb the jury's finding that the evidence was sufficient to exclude every reasonable hypothesis save that of guilt unless the verdict is unsupportable as a matter of law.

(Punctuation and footnote omitted.) Roberts, supra at 662–663(2)(a), 745 S.E.2d 850. (finding evidence was sufficient to support verdict despite lack of fingerprint evidence or eyewitness testimony connecting defendant to crime when other circumstantial evidence indicated his involvement with crime). Thus, based on the totality of the circumstances, the evidence was sufficient to support the verdict, and Armstrong's enumeration is without merit.

2. Armstrong asserts that the trial court erred in failing sua sponte to give a jury charge on confessions and admissions relating to his statement to Anderson. Although he does not specify exactly which jury charge he believes was erroneously omitted in his appellate brief, Armstrong appears to argue that the trial court erred in failing to instruct the jury, consistent with former OCGA § 24–3–53,² that “[a]ll admissions shall be scanned with care, and confessions of guilt shall be received with great caution. A confession alone, uncorroborated by any other evidence, shall not justify a conviction.” However, Armstrong did not submit a written request for a jury instruction on this charge and did not object to the trial court's failure to provide such a jury charge at trial.

This Court has held that

it is not reversible error for the trial court to fail to give a request to charge that is not submitted in writing by the complaining party. Such a failure constitutes reversible error only where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence.

(Footnote omitted.) Farley v. State, 314 Ga.App. 660, 666(5), 725 S.E.2d 794 (2012). Accord Hunt v. State, 166 Ga.App. 524, 525(2), 304 S.E.2d 576 (1983) (“[a]bsent a timely request, the trial court did not err in failing to charge on the evidentiary weight to be given admissions and confessions or in failing to charge that an uncorroborated confession is insufficient to support a conviction”) (citations omitted).

So viewed, we do not conclude that the failure to charge was reversible error. Armstrong's statement to Anderson was...