Hill v. State
| Decision Date | 07 March 2008 |
| Docket Number | No. A07A2127.,A07A2127. |
| Parties | HILL v. The STATE. |
| Court | Georgia Court of Appeals |
Benjamin A. Davis, Jr., Atlanta, for appellant.
Paul L. Howard Jr., District Attorney, Stephany J. Luttrell, District Attorney, for appellee.
Damien Hill was found guilty of two counts of armed robbery and two counts of possessing a firearm during the commission of a felony. In thirteen enumerations of error on appeal, Hill: challenges the sufficiency of the evidence for one count of armed robbery and one count of possessing a firearm during the commission of a felony; objects to the trial court's denial of his motion to suppress; objects to the denial of his motion for new trial on the basis of newly acquired evidence; objects to the failure to charge the jury as to alibi; and alleges that he received ineffective assistance of counsel. Finding no error, we affirm.
1. On appeal from a criminal conviction, we view the evidence in a light most favorable to the jury's verdict, and we neither weigh the evidence nor evaluate witness credibility.1 We uphold the verdict "if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."2 Viewed in this manner, the record shows that Hill drove Carter Wright and Patrick Noel to the Buckhead area of Atlanta in Hill's vehicle on June 8, 2005. Wright and Noel approached two men walking down the street; Noel pointed a gun at one of the men, Tim Mather, while Wright went through Mather's pockets and took his cellular telephone and wallet. Noel testified that the gun he used was given to him by Hill. Wright and Noel fled in the vehicle driven by Hill. The victims identified the perpetrators as two men, one wearing all black and the other wearing an orange basketball jersey, and the vehicle as a burgundy four door Chevrolet Blazer with a wildlife tag that was driven by a third man.
The next day, June 9, Hill, Wright, and Noel discussed that they "[were not] satisfied by what took place the first night" and decided to go to an apartment complex in Buckhead "where [they] could obtain some funds and be satisfied." Hill drove Wright and Noel to the apartment complex in his vehicle. In the complex's parking deck Wright and Noel approached Dennis Brady and a woman; Noel pointed a gun at them while Wright went through their pockets. Brady's cellular telephone, wallet, and watch were taken. One of the perpetrators was dressed all in black and wearing a black ski mask, while the other was wearing an orange jersey. Wright and Noel returned to Hill's vehicle and told him what had transpired because
Brady contacted police immediately and they issued a "be on the lookout" for a burgundy Chevrolet Blazer or GMC Jimmy3 with a wildlife tag with three male passengers. Approximately 25 minutes after Brady notified police, Hill's vehicle was stopped at a gas station in Buckhead with all three men inside. A handgun, a black ski mask, and Brady's driver's license, credit cards, and cellular telephone were inside the vehicle. Hill was driving the vehicle, which was a burgundy GMC Jimmy with a wildlife tag. Noel was wearing an orange jersey, and Wright was dressed entirely in black.
Mather, one of the victims in the June 8 robbery, drove by the gas station after police stopped Hill, Wright, and Noel. Mather, recognizing the vehicle, ran toward it, saying, "`that's the people that robbed me last night.'" He recognized Wright and Noel because they were wearing the same clothes as when they robbed him, and he identified the vehicle as the one used by his assailants. Brady, the victim of the robbery earlier that evening, was brought to the scene; he identified Wright and Noel as the persons who had robbed him and Hill as wearing the same clothes as the getaway driver.
At trial, Wright and Noel testified that Hill was a knowing participant with them in both armed robberies as the driver of the vehicle. Hill testified that he was at home on the evening of June 8 and was not with Wright and Noel in Buckhead. He admitted that he drove Wright and Noel to Buckhead on the evening of June 9, but denied that they went to an apartment complex or committed a robbery. After the trial, Wright wrote a letter in which he recanted his trial testimony against Hill.
Hill argues that the evidence was insufficient to find him guilty of the June 8 armed robbery and firearm possession charges because the only evidence linking him to the crimes was the testimony of his two co-defendants. While a defendant may not be convicted on the uncorroborated testimony of an accomplice to the crime, "`[s]light evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of the accomplice to support a verdict.'"4 Corroborating evidence may be circumstantial, and the sufficiency of the corroborating evidence is for the jury to determine.5
Initially, we note that "[t]he testimony of one accomplice may be used to corroborate that of another."6 Both Wright and Noel testified as to Hill's participation in the events of June 8, which was sufficient evidence to find Hill guilty of the crimes with which he was charged.7 Moreover, there was additional evidence corroborating the accomplices' testimony. The victims confirmed that they had been robbed and testified that the gun used and the getaway vehicle were similar to Hill's gun and vehicle, and that the vehicle was driven by a third man. This evidence was sufficient to corroborate the accomplice testimony and allow a rational trier of fact to find Hill guilty of the crimes charged.8
2. Hill argues that the trial court erred in failing to give a jury instruction on the defense of alibi. Hill did not request an instruction on alibi, and it is generally not error for a trial court to fail to charge on alibi if there has been no request, even if alibi is the sole defense.9 This is so because alibi is not an affirmative defense;
since the true effect of an alibi defense is to traverse the [S]tate's proof that the defendant committed the crime, the charge that the burden is on the state to prove that the defendant committed the crime beyond a reasonable doubt itself necessarily covers the question of whether the evidence of alibi was sufficient to create a reasonable doubt.10
In this case, the trial court fully charged the jury on the burden of proof, reasonable doubt, and the presumption of innocence. While Hill testified that he was never in Buckhead on the evening of June 8, "[t]he absence of a charge on alibi did not change the fact that no juror who believed [Hill's] testimony could find that the [S]tate had carried its burden of proof."11 Accordingly the trial court did not err in failing to charge the jury on alibi absent a request from Hill.12
3. Hill objects to the trial court's failure to grant his motion to suppress impermissibly suggestive witness identification. We will uphold a trial court's ruling on a motion to suppress if there is any evidence to support it, and we construe the evidence favorably to the trial court's findings.13 Hill contends that Mather's "viewing [Hill] on the side of the road surrounded by police officers, with another man, who had `dreads,' coupled with a police officer acknowledging `we got em,' tainted [Mather's] identification of [Hill] as one of the guys that robbed him." But Mather never identified Hill; he only identified Wright and Noel as the men who had robbed him the previous night and identified Hill's vehicle as the getaway vehicle.14 And Mather made the identification sua sponte, not as part of any lineup or showup orchestrated by the police.15 Under these circumstances, we find no error in the trial court's denial of Hill's motion to suppress.16
4. Hill alleges that he is entitled to a new trial because, after he was found guilty, Wright wrote a letter in which he recanted his trial testimony that they were involved in the crimes. In general, a post-trial recantation of his trial testimony by the State's witness is not grounds for a new trial unless the witness has either been convicted of perjury or "there can be no doubt of any kind that the State's witness'[s] testimony in every material part is purest fabrication."17 There is no evidence in the record that Wright was convicted of perjury, and in light of the substantially similar testimony of Noel, the other accomplice, as well as the ample circumstantial evidence of Hill's involvement, we cannot say that Wright's testimony was undoubtedly fabricated.18 The trial court did not err in denying Hill's motion for a new trial on this basis.19
5. In his remaining enumerations of error, Hill alleges that the trial court erred in denying his motion for a new trial on the basis of ineffective assistance of counsel. In order to establish that he received ineffective assistance of counsel, Hill "must show both that counsel's performance was deficient and that the deficient performance was prejudicial to his defense."20 There is a "strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct," and we must affirm the trial court's decision on this issue unless it is clearly erroneous.21
(a) Hill contends that trial counsel was ineffective in failing to move to sever the trial of the crimes that occurred on June 8 and June 9. At the hearing on Hill's motion for a new trial, trial counsel testified that he conferred with other attorneys in his office and made a strategic decision not to file a motion to sever. "The failure to file a motion to sever does not require a finding of ineffective assistance since the decision whether to seek severance is a matter of trial tactics or strategy, and a decision amounting to reasonable trial strategy does not...
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