Gonzalez v. State

• Decision Date: 25 January 2006
• Docket Number: No. A05A1766.,A05A1766.
• Citation: 277 Ga. App. 362,626 S.E.2d 569
• Parties: GONZALEZ v. The STATE.
• Court: Georgia Court of Appeals

277 Ga. App. 362

626 S.E.2d 569

GONZALEZ v. The STATE.

No. A05A1766.

Court of Appeals of Georgia.

January 25, 2006.

COPYRIGHT MATERIAL OMITTED

James W. Gibert, Law Offices of James W. Gibert, Marietta, for Appellant.

Gwendolyn Keyes Fleming, Dist. Atty., Leonora Grant, Asst. Dist. Atty., for Appellee.

MIKELL, Judge.

A DeKalb County jury found Ophelio Gonzalez¹ guilty of three counts of armed robbery, three counts of kidnapping, two counts of hijacking a motor vehicle, and one count of aggravated assault. On appeal, Gonzalez asserts numerous claims of error, including that the trial court erred in denying his motion for a directed verdict, in admitting into evidence his custodial statement to police, in allowing the prosecutor to make improper opening and closing arguments, in allowing improper similar transaction and bad character evidence, and in failing to give his requested jury charges. Finding no error, we affirm for the reasons that follow.

"On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence." (Punctuation and footnote omitted.) Brown v. State, 275 Ga.App. 281, 620 S.E.2d 394 (2005). So viewed, the evidence shows that on the morning of August 20, 2003, the first victim was in his Nissan automobile in the parking lot of his friend's apartment. A "for sale" sign was displayed on the car, and two men approached the victim and indicated that they were interested in buying the car but that they wanted a test drive. The two men got into the car with the victim, and one of the men drove to a nearby parking lot, where the driver pulled out a "black weapon" and told the victim that this was a robbery. The men took the victim's wallet, cell phone, and a chain, and then they beat the victim before leaving him and driving off in his car. The victim was able to identify the driver as Gustavo Lopez.

That same morning a police officer stopped the Nissan because the driver, Lopez, was speeding. Lopez did not have a driver's license or identification, and the officer, who did not know that the Nissan had recently been stolen, impounded the car and arrested Lopez, and a second officer took the car's passenger to the next exit and dropped him off. The officer later identified Gonzalez as that passenger. Some days later, after he was contacted by investigators, the officer searched the Nissan and found a handgun hidden between the cushion and springs of the driver's seat.

On the morning of September 2, 2003, the second victim was warming up his van when two men approached and asked the victim if he had any work for them. One of the men then put a gun to the victim's head and forced the victim into the back of the van, while the other man got into the van, pulled out a knife, and demanded the victim's keys. The man with the knife drove the van while the other man held a gun at the victim's head. The men took approximately $300 from the victim's wallet before forcing the victim out of the van at a Salvation Army location and then driving away.

On the morning of September 3, 2003, an officer responded to a report of an armed robbery to a third victim. The victim, who was bleeding from the forehead, told the officer that he had been robbed at the Northeast Plaza shopping center of $100 by four individuals who had been in a Ford van, one of whom had hit him with a knife. According to the victim, he was held so he could not move and then dragged behind the dumpsters. Approximately two hours later, the officer responded to a report that a van fitting the description given by the third victim had been spotted about a fifth of a mile from the reported robbery. The officer located the vehicle, and found Lopez, Gonzalez, and two other persons with the van, and placed them under arrest. The van was the vehicle that had been reported stolen by the second victim.

On September 4, 2003, Lopez gave a videotaped interview to officers in which he pointed to a picture of Gonzalez and identified Gonzalez as "Alex." According to Lopez, he and Alex stole a Nissan automobile and robbed the car's owner on August 20, 2003. Lopez also stated that he and Alex stole a van and dropped the owner off at the Salvation Army. Lopez further claimed that he was with Alex when Alex robbed a man at the Northeast Plaza shopping center.

During trial, the State presented DNA evidence showing that blood from the third victim was found on one of Gonzalez's shoes. The State also presented similar transaction evidence through the testimony of another robbery victim. The victim testified that on August 17, 2003, a man whom the victim subsequently identified as Gonzalez took the victim's money at gunpoint. According to the victim, Gonzalez forced him into a truck and, along with an accomplice, drove to the victim's apartment, where they stole electronic equipment.

1. Gonzalez claims that the trial court erred in denying his motion for a directed verdict of acquittal at the close of the State's evidence. In reviewing a denial of a motion for a directed verdict the issue is whether, under the rule of Jackson v. Virginia,² the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. See Lewis v. State, 268 Ga.App. 547, 547-548(1), 602 S.E.2d 278 (2004).

Gonzalez contends that because the three victims failed to identify him as a perpetrator that the only evidence against him was his presence at the time of arrest near the scene of the third incident. See Glenn v. State, 278 Ga. 291, 294(1)(b), 602 S.E.2d 577 (2004) (mere presence at the scene of the crime is insufficient grounds for a conviction). However, Lopez's custodial statement to police identified Gonzalez as his accomplice in the crimes against the three victims. Although the statement impeached Lopez's trial testimony that Gonzalez did not participate in the robberies, the prior inconsistent statement was also admissible as evidence to prove the matters asserted therein. "[A] prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes." (Citations and punctuation omitted.) White v. State, 278 Ga. 499, 500(1), 604 S.E.2d 159 (2004).

A felony conviction based upon the testimony of an accomplice must be corroborated by independent evidence, but the sufficiency of the corroborating evidence, which may be circumstantial, is for the jury to decide. See Edmond v. State, 267 Ga. 285, 287(2), 476 S.E.2d 731 (1996). Gonzalez was linked to the first incident through the officer's testimony identifying Gonzalez as the passenger in the stolen Nissan. Gonzalez was linked to the second incident when police found him with the van that had been stolen from the second victim the previous day. Gonzalez was linked to the third incident through the DNA evidence matching the blood found on Gonzalez's shoes to the blood of the third victim. "Slight evidence of a defendant's identity and participation from an extraneous source is all that is required to corroborate the accomplice's testimony and thus support the verdict." (Punctuation and footnote omitted.) Brown v. State, 268 Ga. App. 24, 26(1), 601 S.E.2d 405 (2004). Accordingly, we conclude that the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Gonzalez was guilty of the charged offenses, and that the trial court did not err in denying his motion for a directed verdict of acquittal.

2. Gonzalez contends that the trial court erred in allowing his custodial statement into evidence. We disagree. "In determining the admissibility of a statement, a trial court must find by a preponderance of evidence that the statement was made knowingly and voluntarily. Unless clearly erroneous, factual and credibility determinations made at a Jackson-Denno hearing must be accepted by appellate courts." (Citations omitted.) Wallace v. State, 267 Ga.App. 801, 807(6), 600 S.E.2d 808 (2004).

Evidence adduced at the hearing showed that Gonzalez, whose native language was Spanish, was interviewed by an English-speaking detective. The interviewing detective was accompanied by a second officer, who served as a Spanish language translator. After hearing his Miranda rights, Gonzalez asked for an attorney, and the officers left to question another suspect. Upon their return the interviewing officer picked up Gonzalez's shoes, which had been removed and placed outside the room, and, referring to the shoes, asked the other officer, in English, "does that look like blood to you?" Gonzalez then stated, in Spanish, "that was where [Lopez] hit the man in the head." Gonzalez accompanied the statement with a chopping motion. The trial court concluded that the statement was not the result of questioning, but spontaneous and therefore admissible. See Pierce v. State, 255 Ga.App. 194, 196(2), 564 S.E.2d 790 (2002) ("[v]oluntary, spontaneous outbursts that are not made in response to any form of custodial questioning or interrogation are admissible at trial") (citation omitted).

"After a suspect in custody has invoked his right to counsel, subsequent interrogation is strictly prohibited unless initiated by the suspect." (Citation and punctuation omitted.) Cottingham v. State, 206 Ga.App. 197, 200(4), 424 S.E.2d 794 (1992). As Gonzalez had asked for counsel and had not initiated another interview, the issue is whether the officer's actions in reference to Gonzalez's shoes amounted to interrogation.

A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect . . . amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions...