Gibson v. State

• Decision Date: 31 March 2008
• Docket Number: No. S08A0614.,S08A0614.
• Citation: Gibson v. State, 659 S.E.2d 372, 283 Ga. 377 (Ga. 2008)
• Parties: GIBSON v. The STATE.
• Court: Georgia Supreme Court

659 S.E.2d 372

283 Ga. 377

GIBSON v.The STATE.

No. S08A0614.

Supreme Court of Georgia.

March 31, 2008.

Charles H. Frier, Atlanta, for appellant.

Thurbert E. Baker, Attorney General, Benjamin H. Pierman, Assistant Attorney General, Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Senior Assistant District Attorney, Bettieanne C. Hart, Deputy District Attorney, for appellee.

THOMPSON, Justice.

DefendantDeandre Gibson was convicted of malice murder and armed robbery in connection with the death of Jesse Parker.¹He appeals, asserting, inter alia, that the identification testimony of a key witness should have been suppressed because the witness was shown only one photograph of defendant.Finding no error, we affirm.

Viewing the evidence in a light favorable to the verdict, as we are bound to do, we find the following: The victim, Jesse Parker, and Donna Hogue were sitting on the steps of a house drinking beer when defendant walked up, asked Hogue "what's up," and left.Defendant returned a few minutes later in the company of Farrah Williamson(defendant's girlfriend and the mother of his child) and Williamson's sister, Tasha.He had an 18-inch long, metal flashlight in his hand.Defendant demanded that the victim "break bread."When the victim refused, defendant knocked his beer away and hit him in the head three times with the flashlight.He then rummaged through the victim's pockets, taking a few dollars and a cell phone.Farrah Williamson then yelled "he got a ring on."After the victim refused to hand over the ring, defendant again struck him in the head with the flashlight, took the ring from the victim, and walked away.The victim died six days later.

1.The evidence was sufficient to enable any rational trier of fact to find defendant guilty beyond a reasonable doubt of the crimes for which he was convicted.Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).See alsoDavis v. State,281 Ga. 871, 873(2), 644 S.E.2d 113(2007).

2.Defendant asserts that Donna Hogue's identification of defendant was tainted and should have been suppressed because she was shown only one photograph, i.e., a photograph of defendant, when she told police that "Black" committed the crime.In this regard, defendant points out that the street name "Black" is quite common, see, e.g., Haggins v. State,277 Ga.App. 742(1), 627 S.E.2d 448(2006), and that the display of a single photograph is per se suggestive.SeeBrittian v. State,274 Ga.App. 863(1), 619 S.E.2d 376(2005).

In determining whether there is a substantial likelihood of misidentification, the "totality of the circumstances" is to be considered.Under this test, "the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation and the length of time between the crime and the confrontation."Moreover, whether the witness knows the defendant is a critical factor in determining the reliability of an identification.

(Citations omitted.)State v. Hattney,279 Ga. 88, 89, 610 S.E.2d 44(2005).

At the time of her identification, Hogue had known "Black" for seven years and had had contact with him on a daily basis.Hogue had had a sexual relationship with defendant, and knew him both by his street name and his legal name.Thus, showing Hogue a single photograph of defendant merely confirmed her previous identification of him.It follows that the trial court did not err in refusing to suppress Hogue's identification of defendant.

3.Farrah Williamson gave a statement to police in which she said that defendant approached the victim and told him to "give it up"; that defendant hit the victim in the head with a flashlight and took "less than fifty dollars,""fake jewelry and a cell phone" from the victim; that defendant gave her ten dollars; and that the flashlight had blood on it after defendant hit the victim.Defendant asserts Williamson's statement should have been ruled inadmissible because she was not given a Miranda warning and it is "fundamentally unjust" to use a "coerced statement from the mother of a suspect's child."This argument was not raised below and will not be considered on appeal.To the extent that defendant is challenging the credibility of Williamson's statement, the challenge fails because credibility is a matter that falls exclusively within the province of the jury.Montgomery v. State,224 Ga. 845, 848-849, 165 S.E.2d 145(1968).

4.Defendant asserts the prosecutor acted inappropriately during the course of the trial in several respects:

(a) First, defendant contends the prosecutor improperly attempted to use what he claimed to be a replica of the flashlight in his direct examination of Farrah Williamson.In this regard, defendant points out that Williamson, the owner of the flashlight, stated that the supposed replica did not look like her flashlight.We cannot accept this contention.When defendant objected to the prosecutor's attempt to use the replica, the trial judge removed the jury from the courtroom, sustained the objection, and instructed the prosecutor not to use the supposed replica.Later, when Donna Hogue testified that the purported replica was similar to the flashlight used by defendant, the prosecutor used the replica of the flashlight for demonstrative purposes.Defendant did not object to the use of the replica at that time and, therefore, he cannot complain about this matter on appeal.Carr v. State,259 Ga. 318, 321, 380 S.E.2d 700(1989).

(b) Next, defendant posits that the prosecutor breached the bounds of legitimate advocacy when he read a portion of Farrah Williamson's statement, which was not admitted in evidence, during closing argument.SeeWashington v. State,268 Ga. 598, 492 S.E.2d 197 (4)(1997)(prosecutor should not be allowed to read from document not in evidence during closing).However, this issue was not preserved for review because defendant failed to make a contemporaneous objection at trial.Carr v. State,supra.

(c) Finally, defendant asserts the prosecutor improperly put definitions of the words "corroborate" and "sympathy" on a viewing screen during closing argument.However, the trial court ordered the prosecutor to remove the definitions from the screen.The definitions were removed and defendant sought no further relief from the trial court.Id.

5.Defendant asserts the trial court erred by failing to ascertain whether defendant waived his right to testify.In this regard, defendant posits that although he informed the court that he decided that he would not testify,²he did so only to be polite and that if the court had probed further it would have learned that he actually wanted to testify.This assertion is wholly without merit."[W]hether to testify in one's own defense is a tactical decision to be made by the defendant himself after consultation with his trial counsel, and generally, there is no requirement that a trial court inject itself into that decision-making process.[Cit.]"Price v. State,280 Ga. 193, 195(3), 625 S.E.2d 397(2006), disapproved on other grounds, Patel v. State,282 Ga. 412, 413, n. 2, 651 S.E.2d 55(2007).See alsoBarron v. State,264 Ga. 865, 866, fn. 2, 452 S.E.2d 504(1995);Finch v. State,287 Ga.App. 319, 321, 651 S.E.2d 478(2007).

6.Defendant contends the trial court should have sustained defendant's objection when, during closing argument, the prosecutor argued that Farrah Williamson did not testify that defendant did not commit the crime.In this regard, defendant argues that Williamson merely said that she had no knowledge of the crime and she was never asked if defendant committed the crime.We find no error.The prosecutor's comment was well within the bounds of proper argument.Ponder v. State,268 Ga. 544, 545(2), 491 S.E.2d 363(1997);Moss v. State,278 Ga.App. 221, 222(1), 628...