Harper v. State, A09A0878.
| Decision Date | 05 November 2009 |
| Docket Number | No. A09A0878.,No. A09A1833.,No. A09A1091.,A09A0878.,A09A1091.,A09A1833. |
| Citation | 686 S.E.2d 375 |
| Parties | HARPER v. The STATE. Williams v. The State. Reed v. The State. |
| Court | Georgia Court of Appeals |
Elrod & Elrod, Christopher D. Elrod, Gainesville, for appellant (case No. A09A0878).
William H. Kitchens, Atlanta, for appellant (case no. A09A1091).
Shelley Welch Cox, Jefferson, for appellant (case no. A09A1833).
James B. Smith, Dist. Atty., Richard K. Bridgeman, Robin R. Riggs, Asst. Dist. Attys., for appellee.
In connection with an armed robbery at a jewelry store, Chad Neal Harper, Kelvin Williams, and Deon Reed, along with two others, were co-indicted, tried together, and convicted of numerous crimes. The appeals of Harper, Williams, and Reed are consolidated herein; the other two cases are not at issue.1 For reasons set forth below, we affirm the judgments entered in Harper's and Reed's cases and affirm in part and reverse in part the judgment in Williams's case.
At the jury trial, the state showed that at about 3:00 p.m. on March 31, 2003, four black men wearing gloves and masks or bandanas over their faces burst into a jewelry store. They had hammers and a gun. One of the men pointed the gun at the store manager. The men threatened to kill the employees and shoppers, who all complied with their orders to get down on the floor. The men smashed the glass showcases, swiping jewelry pieces from them. One of the men pressed the gun to the head of an employee. Then several of the men pulled that employee off the floor by her neck, arm, and pants and dragged her about 15 feet across the showroom floor to the store's locked safe, kicking her as well. Along the way to the safe, she sustained a torn rotator cuff. That employee complied with their demands to unlock the safe, and the men emptied most of the jewelry out of it.
Within two minutes of having burst into the store, the men darted out, carrying with them a considerable amount of the store's jewelry in dark bags and various other containers. Outside, the gunman realized that they were being watched by a bystander. The gunman pointed the gun at the bystander and ordered him to turn around, and the bystander complied. The four masked men hurried into a gray, 80s-model Buick that was parked curbside, then sped away.
Meanwhile, county sheriff officers had been summoned to the scene. As soon as the store manager had seen masked men rush into the store, he had pressed a panic button, silently alerting law enforcement. In addition, during the robbery, the store's surveillance camera system had been recording the events onto a videotape. And immediately after the robbers sped out of the parking lot, the store manager called 911 and recounted the incident. The manager also relayed a description of the getaway car, including the car's tag number, which had been reported to the manager by an eyewitness outside. Emergency 911 was also called by a man who had been outside the store when he observed the masked men rush inside and then heard their commands to get down. That caller reported that several black men wearing masks had robbed the jewelry store and were leaving in a car he described as a silver four-door 1988 model Buick.
A patrol officer with the county sheriff's office responded to the ensuing dispatch, which had broadcast a description of the getaway car with the reported tag number, along with information that the tag was registered to a gray 1989 Buick. En route to the jewelry store, the patrol officer particularly noted a Toyota Camry going in the opposite direction; the Camry was traveling at a high rate of speed; it did not slow down to cross railroad tracks; and it drove through an intersection without stopping at a stop sign. That intersection was about 3.5 miles from the jewelry store. Although noting the Camry's traffic violation of disregarding the stop sign, the officer proceeded toward the scene of the armed robbery as dispatched. After driving about 1.3 miles closer to the jewelry store, the patrol officer saw on the side of the road a gray Buick with three of its doors standing open. Upon close examination of this scene, the officer noted that the Buick's engine was running; its tag matched the one reported to 911; jewelry items and jewelry cases were scattered inside and on the ground outside the Buick; and a pair of gloves and a face mask were also on the ground. Recalling the erratic driving maneuvers of the Camry that had sped past him only moments earlier, the officer announced over police radio to be on the lookout (BOLO) for that vehicle, which appeared to be headed for Interstate 85.
Shortly thereafter, nearby officers spotted on that interstate a Camry that matched the description provided in the BOLO, and they initiated a traffic stop. After about a two-minute pursuit, the Camry came to a stop. Inside the Camry were a female driver, to whom the Camry was registered, as well as four black males, including the appellants Harper, Williams, and Reed. Harper immediately fled the Camry on foot; the other four occupants remained inside the vehicle, but were removed by the officers. The officers who approached the vehicle noticed inside, or on the ground just outside the Camry, assorted jewelry pieces, jewelry cases black bags, a gun, a glove, glass fragments, and various other items. Harper was soon apprehended about 300 to 500 yards from the Camry. By about 3:30 p.m. and within 10.5 miles of the jewelry store, the four men, along with their driver, were taken into custody.
Law enforcement officers processed the traffic stop scene, collecting from the ground jewelry items, a bandana, and a glove. The Camry was searched onsite, impounded, and searched again the next day. Items recovered from inside the car included a gun, bags containing assorted jewelry, and loose jewelry items. The jewelry pieces seized were determined to be the property of the jewelry store where the armed robbery had occurred.
At the joint trial for the five defendants, the state played for the jury the surveillance videotape depicting the armed robbery at the jewelry store. None of the defendants testified; none of them called a witness. Harper, Williams, and Reed were all found guilty of and were sentenced for the same five offenses: (i) aggravated assault, by pointing a pistol at the store manager; (ii) kidnapping with bodily (shoulder) injury, upon the store employee; (iii) armed robbery of that store employee; (iv) aggravated assault, by kicking that store employee about the body with the intent to rob; and (v) aggravated assault, by pointing a pistol at the bystander. Harper, Williams, and Reed challenge their convictions in Case Nos. A09A0878, A09A1091, and A09A1833,2 respectively.
1. Harper contends that the trial court erred by denying a motion to suppress the evidence found in and about the Camry.3 Harper maintains on appeal that the traffic stop was supported by neither probable cause nor the requisite articulable suspicion and that therefore the subsequent searches of the vehicle at the scene and later when impounded were illegal. Pretermitting whether Harper has standing to contest the stop and search of the Camry or the car's contents,4 we find no merit in this contention.
(a) We consider whether the stop of the Camry was authorized.
While the trial court's findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review.5
Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The U.S. Supreme Court recognized the difficulty in defining the elusive concept of what cause is sufficient to authorize police to stop a person, and concluded that the essence of the elusive concept was to take the totality of the circumstances into account and determine whether the detaining officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity.6
Here, the patrol officer proceeding to the armed robbery scene witnessed a Camry run a stop sign. Even without any connection with the recent jewelry store heist, that Camry was thus subject to being stopped for a traffic violation.7 The officer soon realized that the original getaway vehicle, the Buick, had been abandoned. At the suppression hearing, the officer recounted his experience in previous cases where perpetrators had abandoned an initial getaway vehicle for a second one. Recounting further the erratic maneuvers of the Camry, the officer testified that he had announced over police radio a BOLO for a black, four-door Toyota Camry and its traveling direction. Within two or three minutes of the BOLO, a nearby officer spotted a vehicle he believed matched the description. In addition, this second officer confirmed over police radio with the patrol officer that the sought-after Camry had shiny wheels, as did the one the second officer had spotted. "This detailed information provided the [officers] with the requisite articulable suspicion to warrant the investigative stop and detention" of the Camry.8
(b) Harper has failed to show that, as to him, the search of the Camry was illegal. As soon as the Camry stopped on the public roadway, Harper jumped out and ran away. Harper thereby abandoned, for Fourth Amendment purposes, any reasonable expectation of privacy as to the contents of the car or anything that had fallen outside.9
2. There is no merit in Harper's challenge to the statute proscribing kidnapping with bodily injury10 on the ground that it is unconstitutionally vague because it does not...
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