Ferguson v. State
| Decision Date | 14 May 1996 |
| Docket Number | No. A96A0440,A96A0440 |
| Citation | 471 S.E.2d 528,221 Ga.App. 415 |
| Parties | FERGUSON v. The STATE. |
| Court | Georgia Court of Appeals |
Thomas S. Barton, Morrow, for appellant.
Robert E. Keller, Dist. Atty., Todd E. Naugle, Asst. Dist. Atty., for appellee.
Defendant was charged in an indictment with a single count of armed robbery, in that, with the intent to commit theft, he "took from the person of Eric S. Wiley ... a certain motor vehicle, a 1987 Chevrolet Blazer, ... by use of a handgun...." The evidence adduced at his jury trial revealed that about "[t]en minutes 'til twelve," on the evening of April 14, 1994, the victim, Eric S. Wiley, Jr., drove his "87 S-10 Blazer" to the drive-through window at the Burger King on "Highway 85 and 138, Clayton County," in Riverdale, Georgia. As the victim "was sitting there waiting for [his] order, ... [t]he passenger door opened up." The victim identified defendant as "the guy that was getting in." After defendant opened the door, "[h]e got in, [said] hey, partner, and [the victim] got out." Defendant had an "[a]utomatic handgun[, ... and he] just pointed it at [the victim] when he got in." The victim "opened the driver's door and got out, squeezed out[, ... and then] hollered into Burger King[:] car-jack, call the police." At this point, defendant As defendant drove off, the victim heard "[s]hots were fired."
In ten minutes, the police arrived. The victim affirmed his description of a young man, about "[f]ive six, five seven, ... dark complexion, [wearing] dark clothing, hat, [and] boots," and went home. Subsequently, the victim was summoned by the police to "report to Blockbusters, behind Blockbusters." There, the victim's Blazer was "backed off in the woods," near Radio Active Stereo. A suspect in custody was removed from a police car so the victim could take a look at him. The victim had no problem recognizing defendant. The victim affirmed that defendant's face, his clothing, his build, and his voice were the same as those of the person who robbed him.
Officer M.E. Taylor, with the City of Riverdale Police Department was performing uniform patrol in a marked patrol car at 1:00 a.m. He received a "lookout from Clayton County Police Department in reference to a black Blazer, Chevrolet Blazer, that had been ... taken in a robbery, a car-jacking." As he was traveling northbound on Highway 85 when he "observed what appeared to be a black Blazer parked in the [Radio Active Stereo] parking lot...." As Officer Taylor was "watching the vehicle [he saw] nobody else in the parking lot, [and saw no] other vehicles except for this vehicle here." In "probably less than ten seconds," Officer Taylor turned his patrol car around, but by the time he returned to the parking lot, he saw nothing. The vehicle was gone. It appeared that "the vehicle had pulled forward, went over the curb, went through a grassy area ... and had parked facing back ... behind some small trees ... which partially obscured it from the roadway...." Officer Taylor surmised anyone in the Blazer would have "had to [run] into the trees because there was no time ... for them to have gotten anywhere back this way without me seeing them, ... that there just wouldn't have been enough time." Officer Taylor summoned assistance and "got the area completely blocked off." A canine unit was summoned because of the possibility of two armed robbery suspects. After defendant was apprehended, the officers continued searching in the woods, but no other suspects were found.
Officer Richard Hudson of the Riverdale Police Department is the certified handler of the police dog, Buster. On the evening of April 14, 1994, Officer Hudson was "called out specifically to track down a person behind Radio Active." Advised that the suspect was armed, Officer Hudson "got on the PA system of the police vehicle and gave several warnings that [he] was sending a police dog in the wooded area to locate whoever fled from the vehicle." Officer Hudson had all law enforcement officers "step out of the woods and set up a perimeter around the wooded area." When Buster was released from his leash, he "did his grid pattern, his zigzag search in the area, hop[ing] to gain the abundance of scent if somebody was laying down." Officer Hudson saw Buster "drop his nose to the ground which ... [indicated] that he was on a scent." By the time Officer Hudson caught up with Buster, he heard another "officer say we've got him in custody." Officer Hudson let Buster continue because Buster "never picked his nose up indicating he stayed on the track the whole time." Buster also located a hat on the ground near defendant. The police never recovered any gun or any second suspect.
Officer Ed Mashburn of the Riverdale Police Department was "part of the perimeter set-up." After Officer Hudson gave his warning and sent in the police dog, a This was defendant. "He was breathing heavy and sweating like he had been running." Officer Mashburn "gave him the command to get on the ground." After defendant was apprehended, he was turned over to Sergeant Chris Butler of the Clayton County Police Department, who "advised him of his Miranda Rights." Sergeant Butler then on the part of he victim, in identifying defendant as the one that robbed him. As Sergeant Butler was taking a written statement from the victim, defendant "made several attempts in a brief few seconds to get the attention of the victim and have him talk to him." In so doing, defendant stated in the presence of the victim "that he had been dropped off by a friend at that location and he denied any involvement in the armed robbery." Defendant testified in his own defense, denying that he was the armed robber and claiming that he was in those woods at that time and place only to answer the call of nature.
The jury found defendant guilty as charged. His motion for new trial was denied, and this appeal followed. Held:
1. Defendant filed a pretrial motion to suppress any identification of him as the armed robber based on the one-man showup. After a hearing, the trial court denied this motion and that ruling is defendant's first enumeration of error. Defendant argues that the one-on-one showup at the scene was impermissibly suggestive and, under the totality of the circumstances, created a substantial likelihood of irreparable misidentification.
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