Hester v. State

• Decision Date: 06 September 2007
• Docket Number: No. A07A1012.,A07A1012.
• Citation: 651 S.E.2d 538,287 Ga. App. 434
• Parties: HESTER v. The STATE.
• Court: Georgia Court of Appeals

287 Ga. App. 434

651 S.E.2d 538

HESTER v. The STATE.

No. A07A1012.

Court of Appeals of Georgia.

September 6, 2007.

Barbara B. Claridge, Augusta, for appellant.

Daniel J. Craig, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

BERNES, Judge.

Following a jury trial, Mario Hester appeals from his conviction for armed robbery and possession of a firearm during the commission of a crime. He challenges the sufficiency of the evidence supporting his conviction and contends the trial court erred in admitting his pretrial statements to the investigating officer and in allowing the state to introduce into evidence Hester's notice of alibi. He also contends that the prosecutor engaged in misconduct during closing argument and finally, that his trial counsel rendered ineffective assistance. We discern no reversible error and affirm.

On review from a criminal conviction, we view the evidence in the light most favorable to the prosecution to determine only whether any rational trier of fact could have found the essential elements of the crimes charged beyond a reasonable doubt. Newton v. State, 280 Ga.App. 709, 710, 634 S.E.2d 839 (2006). We do not assess witness credibility or weigh the evidence, but determine only its sufficiency. Id.

So viewed, the evidence showed that on August 18, 2001, Hester and his two cousins, co-defendants Malcolm Jackson and Corey Johnson, perpetrated an armed robbery against the assistant manager of a convenience store, a young woman who was then dating Jackson. The victim's duties with the store included the making of bank deposits. On the morning in question, Hester drove Jackson and Johnson to a gas station adjacent to the convenience store where the victim worked. Hester and Jackson remained in the vehicle while Johnson waited behind a nearby dumpster for the victim to leave the store with the bank deposit. After Jackson told Johnson via walkie talkie that the victim had exited the store, Johnson jumped into the back of the victim's car as she entered the vehicle, held a gun to the back of her head, and demanded the money. Johnson, who was wearing a red hat, blue shirt, khaki pants, and a camouflaged mask, took the victim's bank bag which contained nearly $10,000 cash. The victim ran back into the store and ordered a co-worker to call 911.

The armed robbery was witnessed by a customer in the convenience store who followed Johnson as he absconded across the parking lot to an adjacent gas station and into the adjoining woods. The witness watched Johnson remove his mask, but ran out of the woods when Johnson noticed his presence. The witness saw Johnson holding both the gun and the bank bag and watched as Johnson fled from the scene in Hester's vehicle.

The responding law enforcement officer took statements from the victim, the victim's co-worker, and the witness. He also secured the crime scene and put out an alert for Hester's vehicle, which was ultimately shared with the local media. The victim, unaware of her boyfriend's involvement, had her co-worker call Jackson to inform him that she had been robbed and to request that he come to the store. The victim was not permitted to speak to Jackson until after she had given a statement to law enforcement.

A day or two after the robbery, Jackson asked the victim to rent him a U-Haul trailer under the guise that he and his cousin "need[ed] to move something" and did not have a credit card. Hester likewise had his girlfriend rent a Chevrolet Suburban with a trailer hitch.

The sheriff's office received a tip that a vehicle matching the description of that used in the robbery had been placed under a cover after the robbery, although it had been prominently parked in an apartment complex parking lot prior to that time. When a sheriff's deputy arrived to interview the tipster, he was informed that three males had loaded the vehicle onto a trailer attached to a Chevrolet Suburban with a yellow dealer tag and left the scene. An investigator scouting the area saw the Suburban with a trailer hitch return and was able to determine from the tag the name of the dealer that had rented the car.

Another investigator subsequently learned that the Suburban had been rented to Latasha Thomas, Hester's girlfriend. On August 20, the investigator went to Thomas's address, where he almost immediately observed Hester enter the Suburban. He followed, hoping that perhaps Hester would lead him to the suspect vehicle and/or others who knew of its location. Instead, Hester drove to a shopping center, parked in the fire lane, and went into a jewelry store.

The investigator entered the jewelry store with his badge visible and asked who had parked in the fire lane. Hester admitted that he was the driver of the offending vehicle, but had no identification on him. The investigator then took Hester to the Criminal Investigation Division ("CID") office in order to obtain additional information from him. The investigator inventoried the vehicle before moving it from the fire lane and found a blue t-shirt, a red baseball cap, and a newspaper from the previous day that was opened to an article about the armed robbery.

Upon arrival at CID, Hester was informed that he was a possible suspect in the armed robbery case. After waiving his Miranda rights, Hester gave two different statements in which he implicated himself as having participated in the robbery. Hester, Jackson, and Johnson were subsequently arrested and charged with armed robbery and possession of a firearm during the commission of a crime, and were tried separately.

1. The evidence set forth above was sufficient to convict Hester of armed robbery. Hester, however, contends that the victim knowingly participated in the crime and that he is therefore guilty only of the lesser crime of theft by taking. We find Hester's argument unavailing.

Under Georgia law, a person commits an armed robbery "when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon ...." OCGA § 16-8-41(a). A participant to a crime may be convicted even though he or she is not the person who directly commits the crime, if that person intentionally aids or abets in the commission of the crime. OCGA § 16-2-20. On the other hand, a person commits the offense of theft by taking if he or she "unlawfully takes ... any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken." OCGA § 16-8-2.

Both Hester and the victim testified during trial. Hester claimed that the victim knowingly assisted in the planning and perpetration of the crime, while the victim denied any such participation in the crime. The trial court properly instructed the jury on both the crimes of armed robbery and theft by taking, and expressly stated that in the event that the jury did not believe that Hester was guilty of armed robbery beyond a reasonable doubt, it could find him guilty of the lesser offense of theft by taking. The jury obviously rejected Hester's version of events, and the evidence was sufficient to authorize the jury's finding of guilt on the armed robbery charge. See Jordan v. State, 281 Ga.App. 419, 422(1), 636 S.E.2d 151 (2006); Buruca v. State, 278 Ga.App. 650, 652(1), 629 S.E.2d 438 (2006).

2. Hester next argues that the recorded statements he gave to law enforcement were not voluntary and thus should have been excluded from the evidence presented at trial.

In ruling on the admissibility of an in-custody statement, a trial court must determine whether, based upon the totality of the circumstances, a preponderance of the evidence demonstrates that the statement was made freely and voluntarily.... Unless clearly erroneous, a trial court's findings as to factual determinations and credibility relating to the admissibility of the defendant's statement at a Jackson v. Denno¹ hearing will be upheld on appeal.

(Citations omitted.) Grier v. State, 273 Ga. 363, 364-365(2), 541 S.E.2d 369 (2001).

Hester contends that his statements were coerced based on certain alleged threats made by the investigating detective prior to the recording of the statements. Significantly, no evidence of the alleged threats were offered into evidence at the Jackson-Denno hearing. The arresting investigator testified that, shortly after Hester arrived at the CID office, the investigator informed him that he was a suspect in the armed robbery. Hester did not appear to be under the influence of drugs or alcohol. The investigator then obtained general biographical information from Hester. After the investigator learned inter alia that Hester had a 10th grade education and could read and write English, he advised Hester of his Miranda² rights and confirmed that Hester understood each of the rights about which he had been advised. The investigator then read a "waiver of counsel" form to Hester as Hester followed along using a copy of the form. Hester thereafter agreed to speak with the investigator, waived his right to counsel, and signed the "waiver of counsel" form. On the form, which was admitted into evidence at the hearing, Hester affirmed that no person had threatened him or promised him anything in exchange for his statement.

Hester did not testify at the hearing, and the investigator specifically denied making any promises or threats to induce Hester's statement. Based upon this evidence, the trial court was authorized to find that Hester freely and voluntarily gave a statement after having knowingly waived his Miranda rights. Hester v. State, 282 Ga. 239, 243(5), 647 S.E.2d 60 (2007); Grier, 273 Ga. at 364-365(2), 541 S.E.2d 369.

3. Hester next assigns error to the state's introduction into evidence of his notice of intention to present an alibi defense. Prior to trial, Hester had given notice of an alibi defense, but did not present any alibi evidence at trial. The...