O'HARA v. State

• Decision Date: 19 January 2000
• Docket Number: No. A99A1791.,A99A1791.
• Citation: 241 Ga. App. 855,528 S.E.2d 296
• Parties: O'HARA v. The STATE.
• Court: Georgia Court of Appeals

528 S.E.2d 296

241 Ga. App. 855

O'HARA v. The STATE.

No. A99A1791.

Court of Appeals of Georgia.

January 19, 2000.

William J. Mason, Columbus, for appellant.

J. Gray Conger, District Attorney, Alonza Whitaker, Assistant District Attorney, for appellee.

SMITH, Judge.

Emory O'Hara was convicted of armed robbery and loitering. Following the denial of his motion for new trial, O'Hara filed this appeal challenging the sufficiency of the evidence, the trial court's refusal to permit his custodial statement to be read to the jury, and the court's questioning of two witnesses summoned on behalf of the prosecution. Finding no error, we affirm.

On appeal, the evidence must be viewed in a light most favorable to the verdict, and O'Hara no longer enjoys the presumption of innocence. Pollard v. State, 230 Ga.App. 159, 495 S.E.2d 629 (1998). The evidence, when viewed in that manner, established that at about 5:00 a.m., two men robbed a convenience store clerk at gunpoint. The clerk identified O'Hara as the robber who pointed a pistol at him from the doorway. The victim described the perpetrators' race, height, and clothing to police and stated that both had worn shiny, black pants made from either a nylon or silk material. After robbing the store, the two men immediately fled on foot. Within two minutes of the clerk's 911 call, police began responding. One officer spotted two males who fit the broadcast description of the robbers behind a nearby apartment complex. When this officer directed a spotlight toward them, the suspects fled. He recovered a .32 revolver from the ground where the suspects had been standing moments before. The victim believed this gun was the weapon used in the robbery.

Meanwhile, by chance, Willie Smith, a corrections officer, was in the immediate vicinity where the perpetrators had fled. Smith was in the process of demonstrating his wife's newspaper route to a friend scheduled to assume the route temporarily. After marking a curb, Smith stood up and then noticed a young man, later identified as O'Hara, standing a few feet away. When O'Hara asked for a ride to a specified location, Smith told him if he could wait until he finished marking his route, he would drop him off close to that area. After O'Hara climbed into the bed of the truck and lay down, Smith asked him, "if he'd done anything crazy," "robbed anybody or shot anybody or anything like that." O'Hara denied doing so. With increasing concern for his personal safety, Smith suggested they approach a policeman who was searching in a nearby field. But O'Hara responded, "[n]o, just get me out of here."

Partially because of the anxiety O'Hara displayed, Smith flagged down an officer driving toward him. Noticing that Smith was motioning toward the rear of his truck, Officer Joel McNeal saw O'Hara peering up at him. Officer McNeal also noticed that O'Hara was sweating profusely and that his clothing was dirty and torn. After O'Hara leaped out of the truck bed and "hit the ground running," the officer drew his weapon. O'Hara continued to flee, although he eventually complied with the officer's repeated commands to stop. O'Hara had abrasions and marks on his hands, consistent with being jabbed by a chain link fence. O'Hara was apprehended within three city blocks of the site of the robbery.

Another officer began studying certain footprints newly formed in some dew and extending from a footpath. According to the officer, this trail was about 150 to 200 yards from the location of the robbery. Although unable to take a casting from the wet grass, police were convinced that the tread on O'Hara's tennis shoes provided a match. Upon tracing the footpath, an investigator discovered a pair of discarded black nylon pants with a small cut by the right pocket.

1. O'Hara contends that the evidence was insufficient to support his conviction for loitering. He claims that since the State failed to prove that he had been afforded an opportunity to explain his presence and conduct before being placed under arrest, his conviction under OCGA § 16-11-36(b) cannot stand. We disagree.

Subsection (b) provides in relevant part:

Unless flight by the person or other circumstances make it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this Code section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this Code section if the law enforcement officer failed to comply with the foregoing procedure or if it appears at trial that the explanation given by the person was true and would have dispelled the alarm or immediate concern.

OCGA § 16-11-36(b). In this case, O'Hara attempted to elude discovery and capture by police. As an officer approached the vehicle in which O'Hara was hiding, O'Hara immediately attempted to flee. Even after being detected, pursued, and ordered to stop by an officer pointing a gun at him, O'Hara did not immediately halt. Given O'Hara's flight combined with his peculiar behavior and appearance, the investigating officer might well have considered the circumstances impracticable for seeking an explanation from O'Hara concerning his presence and conduct.¹ Although O'Hara argues otherwise, a rational trier of fact could have found beyond a reasonable doubt that O'Hara was present at an odd place, at a suspicious time of day, exhibited an unusual appearance, and was behaving in a bizarre manner atypical of law-abiding individuals. See Blair v. State, 216 Ga.App. 545, 547(2), 455 S.E.2d 97 (1995); see OCGA § 16-11-36(a) for the elements of this crime. This evidence was sufficient within the meaning of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) to sustain the conviction for loitering.

2. O'Hara asserts that the trial court erred by refusing to permit him to read to the jury a copy of the statement he had given to police. He claims that under the rule of completeness, he should have been allowed to read it in its entirety.

A witness may be impeached by his own prior contradictory statements. OCGA § 24-9-83. Here, both before and during the trial, O'Hara implicated a person named "T" as the perpetrator. But his two renditions of the surrounding circumstances and narration of events bore little resemblance to each other. On cross-examination, the State sought to impeach O'Hara with numerous inconsistencies and deviations between the custodial statement he had provided to investigators and his courtroom testimony. After perusing his signed statement, O'Hara vouched for its accuracy yet claimed that the typed statement did not accurately correspond with what he had told police. When defense counsel sought to have O'Hara read the statement to the jury, the court refused to allow him to do so.

Prior inconsistent statements are generally admissible to impeach a witness. Tommie v. State, 158 Ga.App. 216, 217(2), 279 S.E.2d 510 (1981). 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 to use for impeachment purposes only. Gibbons v. State, 248 Ga. 858, 862-863, 286 S.E.2d 717 (1982). In this case, O'Hara's entire custodial statement was admitted into evidence, so the jury was free to determine what meaning, weight, and credibility to accord that...