Clemons v. State

• Citation: 265 Ga. App. 825,595 S.E.2d 530
• Decision Date: 05 February 2004
• Docket Number: No. A03A1694.,A03A1694.
• Parties: CLEMONS v. The STATE.
• Court: United States Court of Appeals (Georgia)

595 S.E.2d 530

265 Ga. App. 825

CLEMONS v. The STATE.

No. A03A1694.

Court of Appeals of Georgia.

February 5, 2004.

Reconsideration Denied February 25, 2004.

Certiorari Denied June 7, 2004.

Axam, Adams & Secret, P.A., Tony L. Axam, Atlanta, for appellant.

David McDade, District Attorney, Christopher R. Johnson, Assistant District Attorney, Douglasville, for appellee.

BLACKBURN, Presiding Judge.

Following her conviction by a jury of armed robbery, India Marie Clemons appeals, contending that (1) the evidence was insufficient to support the verdict and (2) certain unsworn testimony was improperly admitted. For the reasons set forth below, we affirm.

1. In two enumerations of error, Clemons argues that the evidence was insufficient to support her conviction for armed robbery.

In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to support the jury's verdict and determine if a rational trier of fact could find each essential element of the crimes charged beyond a reasonable doubt. We do not weigh the evidence or determine witness credibility. Conflicts in witness testimony are matters of credibility for the jury to resolve. And as long as there is some evidence, even though contradicted, to support each fact necessary for the state's case, the verdict will be upheld.

(Punctuation and footnote omitted.) Morgan v. State.¹ See also Jackson v. Virginia.²

Viewed in that light, the evidence shows that on October 3, 2001, Clemons went with Emil Hall to the apartment of Emil's brother, Aaron Hall. In Clemons's presence, Emil Hall showed his brother a handgun and talked of robbing a store so that Aaron could pay his bills. Aaron agreed to participate. At trial, Aaron testified unequivocally that Clemons participated in the conversation regarding the planning of the robbery, and that she asked during this conversation: "[A]re you going to do [the robbery] or not." Afterward, all three agreed to commit the robbery.

With all parties knowing that they were going to execute the plan to rob a convenience store, Clemons and the Hall brothers took I-20 west to Douglas County, stopping once for gas and a second time to allow Clemons to make a phone call. At this second stop, Clemons took over as driver. The trio exited on Post Road and drove to a convenience store. Clemons parked the car so that it was facing the road and could not be seen from the store. As Clemons sat with the engine running, Emil and Aaron Hall entered the store. Emil Hall pulled out the handgun, and the two robbed the store owner of the contents of both the cash register and a bank bag; Aaron Hall also took the wallet of a third person. The brothers then ran from the store and jumped into the waiting car, the doors of which were kept open and waiting by Clemons. With the Hall brothers in the car, Clemons sped away.

One of the victims called the police, giving a description of the car and stating that it had a temporary cardboard drive-out tag. Within minutes of the robbery, Clemons and the Halls were apprehended on I-20. The handgun used in the robbery was found in Clemons's purse, and the money taken in the robbery was found stuffed behind an armrest in the back seat. This evidence was sufficient to allow a rational trier of fact to find Clemons guilty beyond a reasonable doubt of armed robbery.

Clemons contends that the only evidence connecting her to the armed robbery was the uncorroborated testimony of her alleged accomplice, Aaron Hall. Under OCGA § 24-4-8,

testimony of an accomplice must be corroborated by either another witness or by corroborating circumstances. The corroboration, however, need not be sufficient to warrant a guilty verdict or prove every material element of the crime; it need only tend to connect and identify the defendant with the crime charged.... Circumstantial evidence, when taken with the accomplice testimony, showing guilt beyond a reasonable doubt, is sufficient corroboration. The jury may consider the conduct of the defendant before, during and after the commission of the crime to determine the defendant's intent and [her] participation in the crime to determine whether [her] conduct is sufficient corroboration of the accomplice's testimony to sustain the conviction.

(Citations omitted.) Whitfield v. State.³

Clemons initially gave a statement to the police in which she said that she had gone to Douglas County with the Hall brothers and had agreed to drive because Aaron did not have a valid driver's license. She stated that she stopped the car at the convenience store so that the Halls could make purchases, and that after they came running out of the store and shouted for her to go, she drove away, being forced to do so by Emil Hall. In this statement, however, Clemons affirmatively lied that, although she knew Aaron Hall, she had never met Emil Hall before.

This evidence, together with the facts that she was driving the getaway car at the time it was stopped by the police and that she was in possession of the handgun and the money stolen from the convenience store, sufficiently supports Aaron Hall's testimony and Clemons's conviction. Hefner v. State.⁴ Moreover, "[t]he sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant's guilt is peculiarly a matter for the jury to determine." Bush v. State.⁵

2. In her third and fourth enumerations of error, Clemons objects to the trial court's allowing the State to advise the jury why one of its witnesses would not be testifying. The record shows that the State had planned to have both Emil Hall and Aaron Hall, who had pled guilty and were under sentence for the armed robbery, testify at Clemons's trial, and had told the jurors during opening statement that both would testify. Aaron Hall testified as the State understood that he would. Before he was to take the stand, however, Emil Hall informed the State that he would not testify at all.

When court reconvened the next morning, the State informed the court that Emil Hall was now declining to testify and indicated its intention to inform the jury that Hall now refused to testify. Clemons objected to such an announcement and sought a bench conference. Clemons argued that any explanation in the presence of the jury of the witness's absence would be improper. The trial court ruled that the State was entitled to explain why it was not calling a witness, expressing its concern that a question might be raised later as to why Hall had not been called.

Clemons contends in her third enumeration of error that the State, in making its statement to the jury concerning Emil Hall's refusal to testify, improperly commented on the defendant's failure to testify and benefitted from any inferences the jury drew from the assertion of the Fifth Amendment privilege to remain silent. We find no merit in this argument.

"As a rule of both constitutional law and Georgia statutory law, a prosecutor may not make any comment upon a criminal defendant's failure to testify at trial. This rule ensures that the State does not impose `a penalty' for or make `costly' the exercise of the constitutional right to remain silent." (Citations omitted.) Raheem v. State.⁶ However, contrary to Clemons's contention, the Fifth Amendment is not implicated in this case. Hall was not the criminal defendant in this case and he was not invoking his Fifth Amendment right to remain silent to avoid self-incrimination. He was refusing to testify against Clemons in a trial in which she, not he, was the criminal defendant.

In her fourth enumeration of error, Clemons argues that the prosecuting attorney's statement regarding Hall's refusal to testify also runs afoul of OCGA § 17-8-75. This argument is without merit.

OCGA § 17-8-75 provides:

Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.

The plain language of OCGA § 17-8-75 makes clear that it, too, is not implicated in this case. As our Supreme Court has pointed out, the statute "requires a judge to prevent counsel from making improper arguments," Earnest v. State,⁷ and cases dealing with OCGA § 17-8-75 most often involve prejudicial statements made by one of the parties without the consent of the court during either opening or closing argument. See, e.g., Fincher v. State,⁸ (holding that trial court's failure to take curative action following prosecutor's misstatement of evidence during closing argument was harmless error); Brown v. State⁹ ("[f]urthermore, since OCGA § 17-8-75 precludes counsel from making statements to the jury based upon facts which are not in evidence, the court's rulings preventing Brown from testifying to facts not in evidence during his closing argument was correct"); Cheney v. State¹⁰ (holding that prosecutor's reference during opening argument to defendant's invocation of right to remain silent did not require mistrial). "What the law forbids is the introduction into a case by way of argument of facts which are not in the record and are calculated to prejudice a party and render the trial unfair." (Punctuation omitted.) Perry v. State.¹¹ The statute imposes a duty on the trial court to interpose and prevent such prejudicial statements and, on objection made, rebuke counsel, give curative instructions, or, in its discretion, order a mistrial. In this case, however, the prosecuting attorney informed the trial court, outside the hearing of the jury and before making a statement to the jury, that his witness had changed his mind about testifying and that he wanted to let the jury know why the...