Jackson v. State

• Decision Date: 25 January 2016
• Docket Number: No. A15A1883.,A15A1883.
• Citation: 782 S.E.2d 287,335 Ga.App. 500
• Parties: JACKSON v. The STATE.
• Court: Georgia Court of Appeals

335 Ga.App. 500

782 S.E.2d 287

JACKSON

v.The STATE.

No. A15A1883.

Court of Appeals of Georgia.

Jan. 25, 2016.

Christine Marie McDonald, for Appellant.

Amanda Renee Flora, for Appellee.

PETERSON, Judge.

Leandrew Jackson appeals his convictions for four counts of aggravated assault, two counts of armed robbery, and one count of burglary. He raises three enumerations of error: (1) the trial court erred by letting a witness make an in-court identification of him; (2) there was insufficient evidence to support his convictions; and (3) the trial court erred in issuing a modified Allen charge that told jurors that "the case will not go away with a hung verdict."

We find these arguments to be without merit and affirm. Although Jackson complains that the witness should not have been permitted to identify him at trial due to various factors, including that the witness identified someone else as the perpetrator in a police photo lineup shortly after the crime, challenges to in-court identifications go to the weight and credibility, not the admissibility, of the identification. A thorough review of the record shows sufficient evidence to uphold Jackson's convictions. Finally, the judge's comment in giving the Allen charge is not cause for reversal because Jackson did not preserve his objection and the remark did not constitute error.

The charges against Jackson were based on two separate incidents. The trial evidence showed that in the first incident, on the evening of December 1, 2011, Charles Mapp was performing his duties as a driver for a Medicaid transportation service. Mapp had just dropped off his last client for the day and was getting back into his van when he noticed two men approaching his vehicle from behind. The two men told Mapp to "give it up," and one produced a gun. Mapp tried to give them what he had in his pockets: change, his wallet, and his cell phone. The men pulled Mapp out of the van, and kicked and punched him. One struck him over the head with the gun.

On December 5, 2011, police showed Mapp a photographic lineup that did not contain a photo of the defendant. He circled one of the photos, indicating he was 80 percent sure that person was the man who had wielded the gun. The person he identified was not involved in the incident. At the 2013 trial in this case, Mapp identified Jackson as the person with the gun. Jackson's trial counsel objected to Mapp's in-court identification of Jackson, saying, "There's been no foundation that he's identified anybody before," but the trial court overruled him. A crime scene investigator also testified at trial, saying that a fingerprint found on the interior side of the driver's side window of Mapp's van was left by Jackson.

The evening after Mapp was accosted, Donald Rooks and Stacy Allgood were working at a customer's townhome, performing carpet repair and cleaning. When Rooks went downstairs to get equipment, a man attacked him with a hammer. A second man appeared, struck Rooks in the head with a gun, and pointed the gun at Rooks' face. Rooks threw his wallet, from which one of the men took five dollars. Rooks was not able to identify either of the two men.

At some point, hearing Rooks calling for help, Allgood came downstairs and saw Rooks scuffling with the man with the hammer. Someone struck Allgood in the back of the head with what Allgood believed was a gun. Rooks' initial attacker struck Allgood in the head with a hammer. The man with the gun told Allgood to empty his pockets, turning the gun toward himself so that Allgood could see the size of the gun. Allgood refused, explaining later that he had "a pretty good bit of money" in there. The second man again hit Allgood in the head with a gun.

Allgood did not identify anyone as his attacker in an initial police photo lineup on December 5, 2011, but he was able to identify Jackson in a similar photo lineup the following month, saying he was 87 percent sure. At trial, Allgood identified Jackson as the man with the gun. He testified that his lack of certainty during the second photo lineup was due to not knowing the height of the person in the photo or whether the person who attacked him was part of the photo lineup. He testified that he was sure of his identification at trial based on Jackson's eyes.

Based on the Mapp incident, Jackson was indicted for armed robbery and aggravated assault. Based on the incident at the townhome, the indictment charged Jackson with armed robbery, burglary, and three counts of aggravated assault. A jury found Jackson guilty on all charges.

1. Because Jackson's sufficiency argument is based in part on his argument that the trial court erred in letting Mapp make an in-court identification, we first address the issue of the identification. Jackson argues that the trial court erred in allowing Mapp to make an in-court identification that was "unnecessarily suggestive and conducive to irreparable mistaken identification "because Mapp was unable to get a good look at his assailants and he identified another individual as his attacker in a police photo lineup that took place four days after the incident. Jackson's argument is without merit.

The admission of pretrial identification procedures like police photo lineups is subject to court review for reliability, considering factors such as the witness's opportunity to view the defendant at the time of the crime. See Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). However, appellate courts do not review in-court identifications in this manner, as they occur under the immediate supervision of the trial court. See Ralston v. State, 251 Ga. 682, 683(2), 309 S.E.2d 135 (1983). "Challenges to in-court identifications must be made through cross-examination." Hunt v. State, 279 Ga. 3, 4(2), 608 S.E.2d 616 (2005)(citation omitted). Jackson's challenges to Mapp's in-court identification, including the inconsistency in Mapp's in-court and pre-trial identifications, go to the weight and credibility of Mapp's testimony, not to its admissibility. See Sherman v. State, 225 Ga.App. 869, 872(2), 485 S.E.2d 557 (1997). See also Pitts v. State, 323 Ga.App. 770, 772(1), 747 S.E.2d 699 (2013)(problematic aspects of an in-court identification go to the witness's credibility, which is solely a question for jury determination). "A line-up identification, or identification from a group of photographs, is not a prerequisite to every in-court identification." Ralston, 251 Ga. at 684(2), 309 S.E.2d 135(quoting Puckett v. State, 233 Ga. 449, 451, 211 S.E.2d 740 (1975)). Given that Jackson's counsel had the opportunity to cross-examine—and, indeed, did cross-examine—Mapp about his in-court identification of Jackson and his failure to identify him in the pretrial photo lineup, the admission of the in-court identification is not cause for reversal.

2. Jackson challenges all seven of his convictions as unsupported by sufficient evidence. When appellate courts review the sufficiency of the evidence, they do not "re-weigh the evidence or resolve conflicts in witness testimony" but instead defer "to the jury's assessment of the weight and credibility of the evidence." Greeson v. State, 287 Ga. 764, 765, 700 S.E.2d 344 (2010)(citation omitted). We apply the standard of Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), determining whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (citation omitted; emphasis in original).

Count one charged Jackson with armed robbery of Mapp. OCGA § 16–8–41(a)provides that a person commits 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[.]" Count two, also arising from the incident involving Mapp, charged Jackson with aggravated assault, which under OCGA § 16–5–21(b)(2)is predicated on a person assaulting another with a deadly weapon or any object that, "when used offensively against a person, is likely to or actually does result in serious bodily injury [.]" Jackson bases his challenges to these two counts on the notion that Mapp's identification of him should be excluded, but, as explained above, the admission of this evidence was not improper. Given that "[t]he testimony of a single witness is generally sufficient to establish a fact," OCGA § 24–14–8, Mapp's testimony was sufficient to support the convictions on counts one and two. The State also introduced evidence that Jackson's fingerprint was found on Mapp's van, supporting its case that Jackson was one of the men who accosted Mapp. In the light of this evidence, the jury was authorized to find that Jackson committed both armed robbery and aggravated assault on Mapp.

The other convictions turn on Allgood's identification of Jackson as the man with the gun. Although Jackson does not challenge the admissibility of Allgood's in-court identification of him, he claims that the evidence against him is insufficient because Rooks was unable to identify him and Allgood initially failed to identify him in a police photo lineup and expressed some uncertainty in identifying him in a second photo lineup. However, as noted above, the testimony of a single witness is generally sufficient to establish a fact. OCGA § 24–14–8. Allgood's identification of Jackson as the man with the gun, coupled with Rooks' description of events, is sufficient evidence to authorize the jury's verdict of guilty on the charges stemming from the townhouse incident, including burglary. See OCGA § 16–7–1(b)(a person commits the offense of burglary when, "without authority and with the intent to commit a felony or theft therein," he enters or remains within the dwelling house of another).

3. Jackson also argues that the trial court erred in issuing a modified charge under Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, ...