Gomez v. The State

• Decision Date: 13 July 2010
• Docket Number: No. A10A0716.,A10A0716.
• Parties: GOMEZv.The STATE.
• Court: Georgia Court of Appeals

305 Ga.App. 204

699 S.E.2d 395

GOMEZv.The STATE.

No. A10A0716.

Court of Appeals of Georgia.

July 13, 2010.

COPYRIGHT MATERIAL OMITTED

Lon P. Kemeness, Tifton, for appellant.

C. Paul Bowden, Dist. Atty., for appellee.

ADAMS, Judge.

Arandu Arroyo Gomez appeals from his conviction and sentence and the denial of his motion for new trial. We affirm.

1. He first contends the evidence was insufficient to support the verdict. However, other than twice reciting the evidence presented at trial, word-for-word (totaling 28 pages of the brief), Gomez offers no explanation whatsoever of how he contends the evidence was insufficient. He also fails to support this enumeration with argument or citation of authority, as required by Court of Appeals Rule 25(a)(3), and therefore the enumeration is deemed abandoned. See Court of Appeals Rule 25(c)(2); Gartrell v. State, 291 Ga.App. 21, 22(1), 660 S.E.2d 886 (2008) (enumeration regarding sufficiency of evidence abandoned); In the Interest of R.C., 289 Ga.App. 293, 294(2)(a), 656 S.E.2d 914 (2008) (same); Dix v. State, 246 Ga.App. 338, 339(1), 540 S.E.2d 294 (2000) (same).

Furthermore, the evidence supports the following summary of the facts, provided by the State:

[A]t least three Hispanic men came to the residence of Aracely Herrera on February 18, 2004. Two of these men were identified by Ms. Herrera and Mr. Vidales as the Appellant and Mr. Trebeno. They came to Ms. Herrera's residence to retrieve the $125,000.00 drug money owed to the Appellant or, in the alternative, to kidnap a member of the Martinez family. They forced Mr. Vidales, Mr. Morales and Mr. Elisalde into the residence at gunpoint. Once inside, they asked the three victims about [the] location of the drug money, hit them, threw them to the floor and bound them with gray tape. They later robbed them of their wallets and jewelry. Check stubs, photo identification cards and other items which had been stolen from Mr. Elisalde and Mr. Morales were recovered from the shoulder of the roadway of I-75 near the Chula-Brookfield Road exit.

When Ms. Herrera returned to her home, she was hit and kicked. Her hands were bound behind her back with tape. A hood was placed over her head and she was taken from her home to a residence in Fulton County, where she was held for two days until her rescue by a SWAT team. While being held at the Fulton County residence, Ms. Herrera was sexually assaulted by Appellant. He put a gun into her mouth and raped her, there being at least partial penetration before Mr. Trebeno pulled him off Ms. Her

rera.... The Appellant and Mr. Trebeno were arrested inside the residence where Ms. Herrera was rescued.

These facts and others in the record support Gomez's conviction on one count of kidnapping Herrera with bodily injury, three counts of kidnapping the three men, three counts of armed robbery, four counts of possession of a firearm during the commission of a crime, and two counts of burglary.

2. Gomez contends the court erred by removing all unnecessary personnel from the courtroom during the hearing on his motion to suppress in violation of his right to a public trial. See Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984).

At the pretrial hearing on several defense motions, the State asked the court to clear from the courtroom “all unnecessary personnel” during the testimony of Herrera, the main victim. Gomez's counsel requested that Gomez's cousin, who was one of the only members of the family who spoke some English, be allowed to remain. The court granted the State's motion but denied Gomez's request and cleared the courtroom. Herrera then took the stand but, unable to continue, she stepped down without testifying or even being asked a single question; she was never recalled to testify at the motion hearing. GBI Agent Stacy Carson, who had questioned Herrera during the investigation and recorded the questioning, was then called to the stand. At this point, Gomez's counsel did not request that the cousin be allowed to return. Carson was then questioned on direct by the State. Without prompting from the defense, the court then gave permission for Gomez's cousin to return; this occurred prior to the playing of the tape of Herrera's interview. Gomez did not object or protest the fact that the cousin had missed Carson's direct testimony. Gomez then cross-examined Carson.

A defendant is not required to show prejudice in this setting because the improper closing of a courtroom is a structural error; but reversal is required only where “the defendant properly objected at trial and raised the issue on direct appeal.” Reid v. State, 286 Ga. 484, 488(3)(c), 690 S.E.2d 177 (2010).¹ Here, Gomez did not raise a “constitutional objection to the trial court's action after the State moved to clear the courtroom during the victim's testimony[, and he] did not argue then that clearing the courtroom of his relatives would violate his right to a public trial”; as such this objection was waived. Craven v. State, 292 Ga.App. 592, 594(1)(b), 664 S.E.2d 921 (2008).

3. Gomez contends the court erred by allowing victim Herrera to testify at trial about her identification of the defendant from the photo lineup during the investigation without first giving the defense an opportunity to question her.

During the motion hearing after Herrera was unable to testify, the court indicated it was about to rule on the defense's motion to suppress identification testimony. Defense counsel said to the court, “I thought we were going to hold off on that until we hear her testimony.” Counsel argued that he wanted to question Herrera about the photo lineup because she was only shown two pictures of the two men who were arrested, which was impermissibly suggestive; that any identification from that point forward was tainted, including a subsequent proper photo array; and that, accordingly, Herrera should not be allowed to identify the defendant at trial. The State argued that because Herrera was being shown pictures of the two people who were arrested at the scene of the crime, there could be no impermissible suggestion as to who the assailants were nor a substantial likelihood of misidentification.

The court agreed-it saw the situation differently from an improper show-up because Herrera was simply being shown the pictures of the same men who were arrested at the scene of her two-day ordeal. The court ruled that Gomez could raise his point about suggestiveness on Herrera's cross-examination at trial in the presence of the jury. The court also postponed actually ruling on the motion to suppress Herrera's identification evidence until the time that she testified, and it gave Gomez a continuing objection. During the trial, the State questioned Herrera about the two photos of the two perpetrators. She testified that she recognized the two men, and she explained what each man had done. The court allowed the testimony.

Gomez relies on Holcomb v. State, 128 Ga.App. 238, 196 S.E.2d 330 (1973), for the proposition that it is error, after the filing of a timely motion to suppress identification, to force the defense to first question the person making the identification in the presence of the jury. But in Holcomb, the defense “several times requested that the hearing on the motion to suppress the in-court identification not be held in the presence of the jury, and the trial judge in each instance refused.” Id. at 240(1), 196 S.E.2d 330. Here, however, there was a hearing outside the presence of the jury on Gomez's motion to suppress the identification testimony. Thus Holcomb is not controlling.

At the hearing, the GBI agent testified about the two photo lineups, and Gomez cross-examined her. The trial court saw a video of the lineup procedures and saw the two photos and the subsequent photo lineup cards. And the Supreme Court of Georgia has held that a detective's testimony is a sufficient basis for the denial of a motion regarding pretrial identifications. See Clark v. State, 279 Ga. 243, 245(4), 611 S.E.2d 38 (2005) (denial of motion to suppress identification testimony affirmed despite failure of State to present victim's testimony). Furthermore, “[i]n determining whether the trial court erred in denying the motion to suppress identification testimony, this court may consider the evidence adduced both at the suppression hearing and at trial. [Cits.]” Davis v. State, 216 Ga.App. 580, 581(1), 455 S.E.2d 115 (1995). Herrera testified at trial that during her captivity she saw the faces of two or three men who detained her. On cross-examination, Gomez did not ask Herrera anything about the photo lineups.

Here, given that the trial court heard evidence on the pretrial identifications, saw the video and the photos, and heard the trial evidence, and given that the defendant was captured at the scene of the crime, we find the trial court did not err in finding that under the totality of the circumstances, there was not a substantial likelihood of misidentification. See Semple v. State, 271 Ga. 416, 418(2), 519 S.E.2d 912 (1999) (“the question is whether there was a very substantial likelihood of irreparable misidentification”).

4. Gomez contends the trial court erred by allowing Gomez's statement into evidence. A Jackson-Denno hearing showed that while Gomez was being processed for intake and booking at the county jail and responding to routine questions regarding medical information, he interrupted the officer and asked his own questions. He wanted to know where he was and why he was there because he had never been on “this side” of Georgia before. He then asked whether “the female [would] be in the courtroom” and stated that he did not know anything “except that the female was sleeping in the other room ... and then the next thing he knew, the cops hit him in the back of the neck.” The trial court held that the statements were freely and voluntarily given and that they were admissible.

We find no clear error. See Franks v....