Boone v. State
| Decision Date | 07 May 2001 |
| Docket Number | No. A01A0782.,A01A0782. |
| Citation | 250 Ga. App. 133,549 S.E.2d 713 |
| Parties | BOONE v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Sam B. Sibley, Jr., Augusta, for appellant.
Daniel J. Craig, Dist. Atty., Charles R. Sheppard, Asst. Dist. Atty., for appellee. JOHNSON, Presiding Judge.
Donnie Lee Boone, Jr. appeals his convictions of armed robbery (two counts), kidnapping (four counts), aggravated assault (two counts), and possession of a firearm during the commission of a crime (four counts). He was tried by a jury with co-defendants Robert Williams and James Courtney. Boone challenges his convictions with 16 enumerations of error. With the exception of his enumeration of error regarding the trial court's aggravated assault charge to the jury, Boone's remaining enumerations of error lack merit. We therefore reverse Boone's convictions for aggravated assault and remand the case for a retrial on the aggravated assault counts. We affirm Boone's other convictions.
1. On appeal we view the evidence in a light most favorable to support the jury's verdict, and the appellant no longer enjoys the presumption of innocence.1 In addition, we do not weigh the evidence or determine witness credibility; we only determine whether, after viewing the evidence in this light, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt.2 Viewed in this light, the record reveals the following facts.
Around 11:00 p.m. on June 26, 1994, Damon's Restaurant in Augusta, Richmond County, was robbed. Shortly after completing her closing duties, employee Patricia Sheppard left the restaurant through the back door. She got into her car and drove it behind the restaurant and parked next to the dumpster. As she was removing a box from the trunk of her car and throwing it into the dumpster, a man came up behind her. The man grabbed her, put a gun to her head, and ordered her back inside the restaurant. As Sheppard was being pushed toward the door, she noticed another man getting inside her car. Because Sheppard could not open the back door, she knocked on it until her co-worker, Darean Jordan, unlocked the door
and let her in. The robber pushed Sheppard inside the building, demanding that she keep walking. He took Jordan's keys and ordered them to take him to the safe or he would shoot them. Sheppard noticed that another man followed them into the restaurant. She saw this man throw a towel over the surveillance camera—a camera that would not have been visible upon entry. The robbers ordered Jordan and three other employees— Michael Vidal, Sarah Romeo, and Daniel Troup—to move into the office. Sheppard managed to slip away during the commotion and hide in another part of the restaurant.
Upon entering the office, the robbers told Romeo to put the evening's proceeds into a plastic bag the robbers had brought with them. The robbers took the evening's $7,000 in receipts, which consisted of cash (including a $1,000 bill), several rolls of quarters, and numerous credit card receipts. After filling the bag, one of the robbers grabbed Romeo by the arm and said, "You're going with me." He told the other employees not to move or he would shoot Romeo. On their way out of the restaurant, the robbers locked Romeo in a closet with the restaurant keys. In addition to the evening's receipts, the robbers took Sheppard's Cadillac, her purse, and her cell phone. The employees could not identify the robbers. The two men who were observed inside the restaurant were described only as African-American males wearing dark clothing and stocking masks.
Shortly after 11:00 p.m., Jay Watkins, a man who resided near the restaurant, noticed a two-door silver-gray car parked along the road with its interior light on. As he drove by the car, he noticed that the driver's door was ajar and that the driver was standing outside the car. His suspicions aroused, Watkins wrote down the car's tag number. Fifteen minutes later, on his way back home, he noticed a Cadillac with its trunk open abandoned in the same area. Watkins also wrote down the tag number of this car. When he returned home, he called the police. The police determined that the abandoned Cadillac was Sheppard's. They found a roll of quarters and a stocking mask in the Cadillac.
Suspecting that the silver car may have been involved in the robbery, the police located the car's owner, Valerie Davis, and obtained a warrant to search her car and her residence. The police found a 9 mm bullet, a wallet belonging to Donnie Boone, and a large number of quarters in Davis' car. They found five $20 bills in her purse. Davis told police and testified at trial that she received the money from Boone, her cousin. She loaned her car to Boone that evening so that he and his friends, Williams and Courtney, could go out. Davis also said that she, Boone, Williams and Courtney had spent the afternoon together, visiting at the home of Michelle Dunn. Around midnight, Boone returned Davis' car to her at Dunn's house. Davis then drove Boone to a hotel. When she dropped him off, she saw Williams leaning over the second floor balcony of the hotel.
The police then spoke with Dunn, Courtney's girlfriend, who confirmed in part Davis' account of the evening. Upon a consent search of Dunn's residence, the investigators found a pair of pantyhose from which the legs had been cut. The shade of the hose matched that of the stocking mask found in the back of the Cadillac. Based upon this information, the investigators got a warrant for Boone's arrest and then went to the hotel.
During their search of Boone's hotel room, the investigators found a loaded 9 mm handgun, a black plastic bag filled with credit card receipts from Damon's Restaurant, a bank bag, a $1,000 bill, and the restaurant keys. Also in the bag were Sheppard's wallet, cell phone, and car keys, and dark-colored clothing similar to that worn by the robbers. Boone and Williams each had about $1,300 in cash stuffed in their pockets. Police later learned that Boone once worked at Damon's Restaurant as a dishwasher and thus would have known of the surveillance camera in the restaurant's kitchen.
Courtney was also arrested. He gave a statement acknowledging that he knew Boone and Williams had planned to rob the restaurant. He also gave police his one-third share of the robbery proceeds, $1,390, explaining that Boone and Williams had asked him to keep this money for them. Courtney's statement was admitted into evidence. Courtney, who testified at trial and denied any involvement in the robbery, was also cross-examined with respect to his prior inconsistent statements.
Although Boone and his mother testified that Boone was at his mother's house during the time of the robbery, this Court does not weigh the evidence or assess witness credibility. The evidence presented was sufficient to enable rational jurors to find Boone guilty on all counts beyond a reasonable doubt.3
2. Boone argues the trial court erred in allowing the state to introduce Courtney's out-of-court statement without properly redacting the statement and in allowing the state to cross-examine Courtney using the name of his two alleged accomplices. We find no error.
In Bruton v. United States,4 the United States Supreme Court held that a defendant's Sixth Amendment right of confrontation is violated when: (a) co-defendants are tried jointly; (b) one co-defendant's statement is used to implicate the other co-defendant in the crime; and (c) the co-defendant who made the implicating statement employs his Fifth Amendment right not to testify and thus does not take the stand to face cross-examination about the statement.5 Thus, while the confession of a co-defendant normally cannot be admitted against another defendant at a joint trial, this rule applies only where the co-defendant does not testify and is not available for cross-examination.6
Boone's enumeration of error is meritless. Once Courtney took the stand and answered questions concerning his statement, even if he denounced or recanted his statement, he was subject to cross-examination by Boone, and the Bruton rule did not apply.7
3. Boone contends the trial court erred in permitting testimony which he claims injected his character into evidence. However, the record reveals that Boone never objected to the testimony on this ground. It is well established that a party must object to alleged improprieties when they occur to allow the trial court an opportunity to take remedial action.8 Failure to do so results in a waiver of the right to urge error on appeal.9 Because Boone failed to object to the admission of this evidence on the ground asserted as error, he has waived his right to claim error.
4. Boone claims the trial court erred in denying his motion for new trial on the ground that the state failed to disclose a promise of leniency made to Courtney in exchange for his trial testimony. We disagree.
The record reveals that Courtney repeatedly told the jury that he made his out-of-court statement to the officers in exchange for their promise to assist him in obtaining pretrial release on bail. However, Boone fails to point to any other evidence showing that the officers offered Courtney any consideration in exchange for his statement. And, there is no evidence in the record showing that Courtney's testimony at trial, repudiating his out-of-court statement, was given pursuant to a promise of leniency. In fact, Courtney admitted that he had been given the opportunity to plead to a less severe offense than armed robbery if he decided to testify against his co-defendants. This offer was rejected, and Courtney went to trial, repudiating his out-of-court statement. Clearly, even if the state made a promise of leniency to Courtney if he testified against his co-defendants, Courtney did not accept such a promise, and his credibility based on such a promise was...
To continue reading
Request your trial
-
Schwindler v. State, A01A2365.
...call the juror to testify, and thus the evidence was hearsay and could not authorize the grant of a new trial. Boone v. State, 250 Ga.App. 133, 137(5), 549 S.E.2d 713 (2001). 9. Enumeration Nos. 10 and 14. Schwindler argues that he was forced to be represented by hostile trial counsel, who ......
-
Bennett v. State
...to testify and thus does not take the stand to face cross-examination about the statement." (Footnote omitted.) Boone v. State, 250 Ga.App. 133, 135-136(2), 549 S.E.2d 713 (2001); see Bruton, supra, 391 U.S. at 127-128,88 S.Ct. 1620. Juror instructions that the implicating statement can onl......
-
Williamson v. State
...mutual understanding to commit at least one armed robbery and, therefore, authorized the charge on conspiracy. Boone v. State, 250 Ga.App. 133, 141(14)(b), 549 S.E.2d 713 (2001); Powell v. State, 210 Ga.App. 409, 412(3), 437 S.E.2d 598 5. Meadows contends the prosecutor deprived him of a fa......
-
Herbert v. the State., S10A1830.
...co-defendant who does not testify at trial is used to implicate the other co-defendant in the crime. See Bruton; Boone v. State, 250 Ga.App. 133, 135–136, 549 S.E.2d 713 (2001). The detective's testimony did not violate Herbert's rights under Bruton, however, because the statement he recoun......