Glenn v. State

• Decision Date: 16 October 2017
• Docket Number: S17A0858
• Citation: 302 Ga. 276,806 S.E.2d 564
• Parties: GLENN v. The STATE.
• Court: Georgia Supreme Court

302 Ga. 276

806 S.E.2d 564

GLENN

v.The STATE.

S17A0858

Supreme Court of Georgia.

Decided: October 16, 2017

Matthew K. Winchester, for appellant. Sherry Boston, District Attorney, Lenny I. Krick, Harry S. Ruth, Anna G. Cross, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.

GRANT, Justice.

A DeKalb County jury found appellant Delron Glenn guilty of malice murder in connection with the shooting death of John Tanner.¹ Glenn raises four enumerations of error pertaining to his trial: (1) the trial court erred in denying his motion in limine to prevent lay witness identification testimony; (2) the trial court erred in denying his motion to suppress the search of his sister's apartment because the magistrate judge lacked probable cause to issue the search warrant; (3) the trial court erred in denying his motion to suppress a cell phone seized during that search, and; (4) his trial counsel was ineffective for failing to identify and redact references to Glenn's gang affiliation that were contained in a co-defendant's video-taped statement which was played for the jury. Finding no error, we affirm.

I.

The facts, in the light most favorable to the verdicts, show the following. On February 3, 2015, John Tanner, accompanied by an unknown female, went to an Affordable Inn motel. When he arrived at his room, he encountered Denard Pryor, who was there with another man nicknamed "Black." Tanner left with Pryor to get a laptop out of Tanner's car, which was parked in the motel parking lot. Tanner then moved his car around the corner of the building.

Meanwhile, Glenn's ex-girlfriend, Teneshia Johnson, drove Glenn to the same Affordable Inn motel. She dropped Glenn off at the back of the motel, where he met his brother and eventual co-defendant, Calvin Glenn, co-indictee Stanley Kitchens,² and another man. When Tanner and Pryor came around the corner in Tanner's car, Pryor recognized the four men standing in the parking lot. Calvin and his entourage, including Glenn, had come to the motel to confront Tanner because Tanner allegedly owed Calvin some money. When Calvin saw Tanner, Calvin became angry and said he was going to "go handle this." Glenn then asked Calvin to give him a gun.

Tanner was out of his car, with Calvin and Glenn following him, when the two men began "roughing up" Tanner. Tanner then managed to get back inside his car, but Calvin and Glenn followed Tanner to his car and proceeded to steal Tanner's briefcase, keys to his home, and an LG MS395 cell phone. During the "roughing up" and the robbery, witnesses heard a gunshot. Calvin and Glenn then got out of Tanner's car and ran away. Glenn was spotted with a small silver gun in his hand as he ran. The men dropped a red cell phone and a key ring during their flight.

In response to a 911 call, police arrived at the Affordable Inn shortly after the shot was fired. They found a car that was still running with the door open. Tanner was found unresponsive in the driver's seat. Officers collected a .25 caliber cartridge casing, a number of business cards, a video surveillance recording, and several fingerprints from the crime scene. Officers also noticed that Tanner's cell phone holder was empty and that there was an empty box for an LG MS395 phone in the car's backseat. Tanner died from a single .25 caliber gunshot wound to his abdomen; no firearm connected to that casing or bullet was ever recovered.

The motel manager gave police the video surveillance recording that captured Tanner's last moments. The recording showed Tanner being taken to the ground by two men on the car's left side while two other men ransacked the car from the right side. The manager thought she recognized two of the people in the video, whom she knew by their nicknames "Fat" and "Man." "Fat" was later determined to be Pryor, and "Man" was later determined to be Kitchens. The manager identified Kitchens because he stuck his face into the camera and because he was known to her since he had been banned from motel property. The video also showed Kitchens and three other men fleeing the parking lot via a "cut path" that led to the Hidden Woods apartments on the other side of the motel. A search of the path turned up the key ring and red cell phone. Police issued a BOLO (be on the lookout) notice describing the suspects; minutes later, Calvin was arrested near the Hidden Woods apartments. The red phone turned out to belong to Calvin.

Six days after the crime, Kitchens was arrested. He admitted to serving as a lookout at the corner of the motel building, but pinned the murder on Calvin and Glenn despite denying that he ever saw the actual shooting. Kitchens identified the fourth male by the nickname "Red." He told police that Calvin went by the street name "Kirkwood," while Glenn went by the name "Uzi." Kitchens illuminated a motive: money. Calvin had seen Tanner at a nearby gas station earlier that day and became upset because Tanner owed him money for drugs. Calvin called his brother to meet him and confront Tanner over the money.

Johnson was shown the video recording, along with still photos, and identified Glenn as being one of the men shown. She acknowledged, both before and during trial, that she could not see his face well, but "could just tell" the man in the video was Glenn. She, like Kitchens, denied being present when the shooting occurred.

DeKalb County police arrested Glenn at his sister's apartment. He had resided there for two or three weeks. In addition to the arrest warrant issued for Glenn, Detective Keith McQuilkin obtained a search warrant for the apartment. The warrant is discussed more fully below in relation to one of Glenn's enumerations of error. Although the warrant did not include a cell phone as one of the items to be seized, Detective McQuilkin seized an LG MS395 cell phone from the floor of the apartment. At police headquarters, he removed the cell phone's battery and confirmed that the serial number matched the serial number on the empty box that was found in the back seat of Tanner's car.

Prior to trial, Calvin and Glenn filed a motion in limine seeking to block lay witnesses from identifying them as the two men shown on the motel surveillance video or still photographs taken from that video. The trial court denied the motion and Pryor, Johnson, and Kitchens were all questioned about Glenn's appearance in the video. Glenn also moved to suppress the search of his sister's apartment and the resulting seizure of the LG MS395 cell phone. After a hearing, the trial court denied Glenn's motion to suppress.

Once trial began, the defense maintained that the video did not show Calvin or Glenn. Over Glenn's objection, the jury heard from Pryor, Kitchens, and Johnson that Glenn was the person in the video.³ Johnson also told the jury she received a phone call from Glenn on the night of Tanner's murder. She stated that Glenn told her he "f* *ked up," but did not elaborate. Glenn's sister, Tierra Curtis, testified to her belief that Johnson had planted the cell phone to help the police. Neither Calvin nor Glenn testified. The jury, as stated, found Glenn guilty on all counts.

Although Glenn has not challenged the sufficiency of the evidence in this case, we have reviewed the record and find that the evidence is sufficient to enable a rational trier of fact to find, beyond a reasonable doubt, that Glenn was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

II.

Glenn first contends that the trial court erred in denying his motion in limine to exclude testimony by lay witnesses identifying him as one of the perpetrators in the video surveillance and photographs. Glenn contends that Georgia law prohibits lay witness identification based on photos or video.

Georgia's new Evidence Code permits lay witness testimony in the form of opinions or inferences that are rationally based on the witness's perception, helpful to a clear understanding of the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge. OCGA § 24–7–701 (a). That rule is modeled on Federal Rule of Evidence 701 (a), and when we consider the meaning of such provisions, "we look to decisions of the federal appellate courts construing and applying the Federal Rules, especially the decisions of the United States Supreme Court and the Eleventh Circuit." Olds v. State, 299 Ga. 65, 69 (2), 786 S.E.2d 633 (2016).⁴

In United States v. Pierce, 136 F.3d 770, 774 (11th Cir. 1998), the Eleventh Circuit held that where there is "some basis for concluding that [a] witness is more likely to correctly identify" a defendant as "the individual depicted in surveillance photographs," then "lay opinion testimony identifying a defendant in surveillance photographs is admissible under Rule 701." In so holding, the Pierce court rejected the defendant's argument that lay witnesses were no better equipped than juries to compare the defendant's appearance with the individual depicted in surveillance images. Id. at 773. The Pierce court acknowledged that a number of factors may determine if a witness is better suited to identify the defendant in such instances, and that perhaps the "most critical [factor] to this determination is the witness's level of familiarity with the defendant's appearance." Id.

Under the circumstances of this case, we find no meaningful distinction between lay witness testimony identifying the defendant in either photographs or in video recordings. See, e.g., United States v. Gholikhan, 370 Fed.Appx. 987, 991 (II) (11th Cir. 2010) (relying on Pierce to find no error in admitting lay witness testimony under Rule 701 identifying defendant's voice on monitored telephone calls); see also United States v. Contreras, 536 F.3d 1167, 1170 (II) (A) (10th Cir. 2...