Carter v. Alford

• Decision Date: 12 March 2014
• Docket Number: Nos. A13A1933,A13A2328.,s. A13A1933
• Citation: 326 Ga.App. 144,756 S.E.2d 232
• Parties: CARTER v. The STATE. Alford v. The State.
• Court: Georgia Court of Appeals

326 Ga.App. 144

756 S.E.2d 232

CARTER

v.The STATE.

Alford

v.The State.

Nos. A13A1933, A13A2328.

Court of Appeals of Georgia.

March 12, 2014.

Jennifer Adair Trieshmann, for Appellant (case no. A13A1933).

James Edward Bischoff, Fayetteville, for Appellant (case no. A13A2328).

Raymond C. Mayer, Asst. Dist. Atty., Peter J. Skandalakis, Dist. Atty., Kierston Marie Phillips, Asst. Dist. Atty., for Appellee.

RAY, Judge.

After a jury trial in which they were tried as co-defendants, Antonio Carter and Demario Alford were each convicted of one count of armed robbery (OCGA § 16–8–41).¹ In Case No. A13A2328, Alford appeals from the denial of his motion for new trial, arguing that the evidence was insufficient to support his conviction, that the trial court erred in denying his motion for a mistrial, and that the trial court erred in allowing testimony identifying him in a surveillance video into evidence. In Case No. A13A1933, Carter appeals from the denial of his amended motion for new trial, arguing that the trial court erred in refusing to strike several jurors and in allowing testimony identifying him in a surveillance video into evidence. Carter also argues that he received ineffective assistance of counsel. For the reasons that follow, we affirm Alford's conviction, reverse Carter's conviction, and remand for a new trial for Carter.

Case No. A13A2328

1. Alford argues that the evidence presented at trial was insufficient to support his conviction. We disagree.

On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia [, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ]. This same standard applies to our review of the trial court's denial of [the defendants'] motion[s] for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Footnotes omitted.) Stephens v. State, 247 Ga.App. 719, 719, 545 S.E.2d 325 (2001).

So viewed, the record shows that at 6:30 p.m., on October 17, 2011, Thrift Town, a grocery store in Newnan, was robbed at gunpoint by two African–American males. A third male, Brandon Phillips, was also indicted for the crime, and he testified that his role in the robbery was to go into the store and determine who was inside. The men stole approximately eight to nine thousand dollars from the store's cash registers.

Approximately an hour before the robbery, the two co-defendants came into the store, as can be seen and identified on the store's video surveillance cameras. Significantly, the first video shows the clothing worn by the co-defendants. Alford wore a checkered hat, light blue jeans, and a red belt, and Carter wore a red hat with a black brim. A review of the store's surveillance video of the robbery an hour later shows that although Alford had changed into a yellow jacket and concealed his face during the robbery, he was still wearing light blue jeans, a checkered hat, and the distinctive red belt. Although Carter concealed his face and put on a black jacket during the robbery, he was still seen wearing a red hat with a black brim.

Although neither the store owner nor the employee who was at the store at the time of the robbery could positively identify Alford or Carter, at trial the employee positively identified Phillips as one of the men hanging around the robbers before and after the robbery. Phillips testified that Alford and Carter were the two other people involved in the robbery. Phillips' description of the clothing worn by Alford and Carter before and during the robbery was consistent with that shown in the surveillance tape, including the fact that Alford was seen wearing blue jeans and a red belt and that Carter was wearing a red hat with a black brim.

Bridgette Smith, who was living with Phillips' brother, testified that Alford and Carter ran through the back of her house shortly after the robbery. Cynthia Royal testified that she saw Alford and Carter come out of Smith's house and throw their clothes into the trash. Detective Greg Vansant testified that the clothing later recovered by law enforcement near Smith's house was the same clothing depicted on the videos, including the yellow jacket and red belt worn by Alford and the red hat worn by Carter. Additionally, Alford's cell phone records place him in the area of the robbery at the time of the robbery occurred, even though Alford claimed to have been in Atlanta at that time.

Viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Alford guilty beyond a reasonable doubt of armed robbery. OCGA § 16–8–41. “It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” (Citation and punctuation omitted.) Vega v. State, 285 Ga. 32, 33(1), 673 S.E.2d 223 (2009).

2. During cross-examination by Alford's trial counsel, Norrissa Phillips, who is Phillips' sister, testified that she heard Alford state that he and Carter had robbed the store alone and that Phillips had not been involved with the robbery. Carter's trial counsel then moved for mistrial, arguing that the statement constituted a Bruton violation because it implicated his client.² Alford's counsel then joined the motion for mistrial, arguing that because Alford had to craft his questions so as not to elicit testimony that would violate Bruton, he was denied the right to a thorough and sifting cross-examination of the witness. Alford contends that the trial court's denial of his motion for mistrial was in error.

The trial court denied the motions for mistrial, but it allowed counsel for both defendants and the State to craft a curative instruction and a stipulation as to what Norrissa Phillips' further testimony would be. The trial court then instructed the jury according to the agreed-upon instruction and stipulation, which included a statement that Norrissa Phillips heard Alford state that Phillips had left the store prior to the robbery. Alford's trial counsel agreed to the stipulation and did not object to the curative instruction either before or after it was given.

Relying upon Bowe v. State, 288 Ga.App. 376, 654 S.E.2d 196 (2007), Alford urges that the trial court erred in denying his mistrial because a “thorough [ ] and sifting cross-examination of Norrissa Phillips was limited because of the Bruton issue and [Alford] was force[d] to settle for a stipulation of facts instead of a complete cross-examination.” In Bowe, this Court held that the trial court erred in denying a defendant's motion to sever his trial from that of a co-defendant when Bruton concerns prevented him from introducing complete transcripts of 911 phone calls and a subsequent custodial statement he made to the police regarding his only antagonistic defense, i.e., that he was present at the robberies solely because of coercion by his co-defendant. Id. at 383–384(3), 654 S.E.2d 196. Unlike in Bowe, however, Alford did not move to sever his trial from Carter's, and he was not prevented from introducing evidence supporting an antagonistic defense at trial. Rather, at trial, he argued that because of Bruton concerns, he was prevented from providing the full context of Norrissa Phillips' statement—that is, that Alford did not believe Phillips was involved in the crime because he had left the store prior to the robbery.

However, even if it was error to exclude Norrissa Phillips' testimony in its entirety, such error does not require a reversal of Alford's convictions because evidence similar to that Alford sought to introduce through his cross-examination of Norrissa Phillips was admitted at trial through the stipulation and through the testimony of another witness. Mitchell v. State, 293 Ga. 1, 2(2), 742 S.E.2d 454 (2013). The stipulation stated that the witness told police that Alford claimed Phillips had nothing to do with the robbery and left the store prior to the robbery. Phillips himself testified that he left the store prior to the robbery taking place. Further, a store employee testified that he recognized Phillips as one of the men in the store during the evening of the robbery, but only stated that he saw him standing outside the door of the store with the other two co-defendants immediately after the robbery. See id. (reversal not required when trial court required defendant's statements to police to be redacted to comply with Bruton when such redacted portions of the statement sought to be admitted were cumulative of evidence presented through the testimony of another witness). Because the evidence Alford sought to be admitted through Norrissa Phillip's cross-examination would have been cumulative of other testimony admitted at trial (including the stipulation as to her what the remainder of her testimony would have been), we find it highly probable that the exclusion of such testimony did not affect the outcome of the proceedings. Id.

3. Alford contends that the trial court erred in allowing Detective Vansant, the State's witness, to identify him on the store's surveillance videotape of the robbery. We agree that this was error by the trial court, but find it harmless in the context of all the other evidence introduced at trial.

During the course of the trial, after viewing the surveillance videos and after Detective Vansant gave his initial testimony, a juror sent a note to the trial court inquiring if the trial court would identify the individuals shown in the surveillance videos. The trial court then instructed the jury that “a witness is not permitted to identify a person in a photograph or a video other [than] himselfor herself. Rather, identity is an ultimate question of fact to be determined by the jury.” After this...