Garlington v. State
| Decision Date | 01 July 2004 |
| Docket Number | No. A04A0236, No. A04A0237. |
| Citation | 601 S.E.2d 793,268 Ga. App. 264 |
| Parties | GARLINGTON v. The STATE. Harrison et al. v. The State. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Mark A. Casto, for appellant (case no. A04A02326).
John M. Shelnutt, Berry and Shelnutt, Columbus, for appellant (case no. A04A0237).
John Conger, District Attorney, Crawford Seals, Assistant District Attorney, for appellee.
Appellants Swarez Garlington, Mark Harrison, and Marcus Harrison appeal their convictions by a Muscogee County jury of armed robbery and possession of a firearm during the commission of a crime. In Case No. A04A0236, Garlington challenges the sufficiency of the evidence, the denial of his plea in bar, and several of the trial court's evidentiary rulings. Garlington also argues that his trial counsel was ineffective. In Case No. A04A0237, brothers Mark and Marcus Harrison challenge the sufficiency of the evidence, the denial of their plea in bar, and several evidentiary rulings. Finding no error, we affirm.
The standard of review on appeal of a criminal conviction 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."1 The appellant no longer enjoys the presumption of innocence, and we determine only the sufficiency of the evidence.2 We do not weigh the evidence or assess witness credibility.3 So viewed, the evidence shows that shortly before 2:00 a.m. on October 3, 2001, in Columbus, Georgia, Robert Alonzo was robbed at gunpoint by two young men while standing at the pay phone of a Crown service station. Alonzo testified that the area was very well lit and that he had a good opportunity to see both robbers, but he focused on the one who was holding the gun to his head; that the men took his car keys, his wallet, and the money he had in his pockets; that they told him to get down on the ground and not to look at them; that he squatted in response to their command, then watched them run toward a waiting car and saw one of them sit in the front passenger seat, and the other, in the back seat. Alonzo called 911 to report the robbery as the perpetrators ran to the getaway car.
Alonzo told the 911 operator that he had been robbed by two young black men in their teens or early twenties; that they took about $200-250 of his money; that they left the scene in a black or dark blue four-door Chevrolet Cavalier; that they had a gun, that the gunman was wearing a blue shirt with a t-shirt underneath it and khaki pants; and that he had long straight hair, which was pulled back into a ponytail.
Officer Greg Ballard of the Columbus Police Department responded to Alonzo's call within five minutes.
Alonzo's description of the gunman and the car to Officer Ballard was consistent with the information he reported to the 911 operator. Alonzo also told Officer Ballard that the gunman was 5'8" tall, weighed 150 pounds, and that the gun was silver. Alonzo did not describe the other perpetrator to Officer Ballard but testified at trial that the other perpetrator had "bushy" hair and that he would recognize him if he saw him. Officer Ballard testified that Alonzo told him that the robbers took approximately $259, which consisted of $20 bills, a $10 bill, a $5 bill, and four $1 bills.
Officer Ballard reported the incident to dispatch and soon thereafter, heard a broadcast from a fellow officer, who stated that he had seen the vehicle on Victory Drive crossing into Phenix City, Alabama. Approximately 30 minutes later, Officer Ballard received a call from dispatch informing him that the Phenix City Police had stopped a car fitting the description that he had given and that one of the car's occupants fit the description of the gunman.
Lieutenant Frank Ivey of the Phenix City Police Department was the officer who stopped the car in Alabama. Lieutenant Ivey testified that he pulled the car over at 2:09 a.m. and called for backup. Lieutenant Ivey asked the driver, Mark Harrison, for identification. The other officers requested the passengers' identification then asked them if they were carrying weapons. No one questioned any of the suspects about the robbery. The occupants were removed from the car and frisked for weapons. Lieutenant Ivey then called his dispatcher and waited for someone from the Columbus Police Department to arrive.
Officer Ballard arrived at the scene with Alonzo. Officer Ballard testified that Alonzo quickly identified the gunman, Garlington, the accomplice, Marcus Harrison, and the car. Officer Ballard recalled that Garlington matched Alonzo's description except for the fact that he was wearing a different t-shirt. However, a blue shirt was retrieved from the car that Alonzo identified as the shirt the gunman wore.
Officer Ballard testified that even though Mark and Marcus Harrison were twins, Alonzo had no problem identifying Marcus as the unarmed perpetrator. Alonzo testified that he did not recognize one of the men, later identified as Mark Harrison, whose hair was "a lot bushier" than either of the robbers, but he was able to identify the other two men with no assistance from the police. Officer Ballard testified that they recovered $239 collectively from the three suspects.
Phenix City Officer James Langley, who assisted Lieutenant Ivey at the scene, testified that he placed Marcus Harrison in his patrol car after the victim identified Marcus. Officer Langley testified that he read Marcus his Miranda rights while waiting for a detective from Columbus to arrive and that Marcus stated that he understood his rights. When Investigator Tom Plock of the Columbus Police Department arrived, Officer Langley informed him that Marcus had been Mirandized.
Investigator Plock testified that when he arrived at the scene, Garlington was no longer present, but that he questioned Mark and Marcus Harrison. Marcus initially denied being in Columbus, but upon being informed of the police broadcast identifying the car crossing into Alabama, Marcus stated, "it was someone else that robbed that boy." At that point, Investigator Plock had not disclosed the sex of the victim or that a person had been robbed, nor had the Alabama officers. Marcus also told Investigator Plock that the gun used in the robbery might still be in the car.
Investigator Plock then read Mark Harrison his Miranda rights, which Mark stated that he understood. Mark initially denied that he had been in Georgia that evening, but after Investigator Plock disclosed the contents of his conversation with Marcus, Mark admitted his involvement. Mark stated that he was driving and when he stopped at a red light, someone exited his car and shortly thereafter, ran back to the car shouting "go, go" and that he immediately drove away from the scene. Investigator Plock questioned Mark and Marcus a second time at the Columbus Police Department office. They both indicated that the shirt that had been taken from the car at the scene belonged to Garlington.4
The appellants were found guilty of armed robbery and possession of a firearm during the commission of a crime. Garlington was sentenced to twelve years in prison for armed robbery and five years to serve consecutively for the firearm charge. Mark and Marcus were each sentenced to ten years in prison for armed robbery and five years for the firearm charge to serve consecutively.
1. We address Garlington's first three enumerations of error simultaneously. Garlington argues that the evidence that linked him to the crime, his co-defendants' statements (error no. 2) and the victim's identification testimony (error no. 3), should not have been admitted, and that the remaining evidence was insufficient to support his conviction (error no. 1). We find that the evidence was sufficient to sustain Garlington's conviction.5
(a) Co-defendants' statements. Garlington argues that the trial court should have excluded his co-defendants' statements because they did not waive their Miranda rights. "Constitutional rights are generally considered to be personal to the accused, and they must be asserted by the one whose rights were actually infringed."6 Therefore, Garlington lacks standing to raise this error.
Garlington also argues that under the rule in Bruton v. United States,7 the court should not have allowed Investigator Plock to testify as to Mark and Marcus's statements that the shirt removed from the car was Garlington's. The Bruton rule "prohibits the statement or confession of a co-defendant who does not testify at a joint trial, to be used to implicate other co-defendants."8 However, "[i]n order for the admission of a co-defendant's statements to constitute a Bruton violation, the statements standing alone must clearly inculpate the defendant."9 There was no Bruton violation in this case.
In their statements, neither Mark nor Marcus identified Garlington as the person who committed the robbery. They simply stated that the shirt taken from the car belonged to Garlington. This statement, alone, did not prove Garlington's guilt.10 Moreover, "[w]here overwhelming evidence of a defendant's guilt exists apart from the statement of the co-defendant,... any violation of Bruton is harmless beyond a reasonable doubt."11 Here the co-defendants' statements about the shirt were corroborated by Alonzo. In fact, Alonzo identified Garlington and the shirt before the co-defendants spoke to Investigator Plock. Therefore, even if there were a Bruton violation, it does not warrant the reversal of Garlington's conviction.
(b) Victim's Identification Testimony. Garlington next contends that the trial court erred in failing to grant his motion to suppress Alonzo's identification testimony. "The test for determining whether a due process violation occurred in cases such as this is whether the identification procedure was so...
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