James v. State, A12A0301.

• Decision Date: 26 June 2012
• Docket Number: No. A12A0301.,A12A0301.
• Parties: JAMES v. The STATE.
• Court: Georgia Court of Appeals

316 Ga.App. 406

730 S.E.2d 20

12 FCDR 2107

JAMES

v.The STATE.

No. A12A0301.

Court of Appeals of Georgia.

June 26, 2012.

Barbara Barnett Claridge, Augusta, for James.

Daniel J. Craig, Charles R. Sheppard, Augusta, for The State.

PHIPPS, Presiding Judge.

Steven James appeals his convictions for multiple counts of armed robbery, aggravated assault, possession of a knife during the commission of a crime, and one count of attempt to commit armed robbery. He contends the trial court erred by denying his motion for a directed verdict of acquittal, allowing the state to elicit improper hearsay testimony, and allowing the state to improperly impeach a witness. For the reasons that follow, we affirm.

Viewed in the light most favorable to the prosecution,¹ the evidence showed that on the evening of January 13, 2004, David Turner and J.G., a juvenile, attempted at knife-point to rob employees of a Taco Bell restaurant, and actually robbed at knife-point employees in a nearby Arby's restaurant, minutes later. James drove Turner and J.G. to the restaurants and stayed in the car while Turner and J.G. entered the restaurants armed with knives and wearing masks, and demanded money. After the incident at Arby's, the three fled in James's vehicle, with James driving. J.G. sat in the back seat of the car, and Turner sat in the front passenger seat. They were ultimately apprehended by the police.²

J.G. testified that on January 13, 2004, he went to James's house. J.G.'s mother and James were there. Turner arrived shortly thereafter. James, Turner, and J.G. left the house together; James drove. Turner explained to J.G., with James in the car, that they were going to rob some restaurants. Turner said that he had already told James about the plan. Turner handed J.G. a knife while they were in the car. When they arrived at the Taco Bell restaurant, James waited in the car while Turner and J.G. entered the restaurant, armed with knives and wearing face masks, and demanded money. But when their demands were ignored, they exited the restaurant and drove away. Turner and J.G. took off their masks when they got back in the car.

They stopped next at an Arby's restaurant. Turner and J.G. entered the restaurant, armed with knives and wearing face masks, and demanded money. This time, their demands were met; they were given money. Turner and J.G. exited the restaurant and got back in the car; James drove them away. About 10 to 15 minutes later, the three individuals were arrested at a gas station.

1. James contends the trial court erred by denying his motion for a directed verdict of acquittal because in the state's case-in-chief, the only testimony connecting him with the crimes came from one of the alleged accomplices, J.G. He argues that none of the victims identified him as a perpetrator and no independent witnesses connected him with the planning or commission of the crimes.

James further argues that he had no knowledge about the attempted armed robbery of the Taco Bell restaurant because he had not discussed committing the robberies, and he stayed in the car while Turner and J.G. went inside and later came back outside without mentioning any attempt to commit a robbery inside. James asserts that he found out about the armed robbery at the Arby's restaurant only after its commission, when he was forced at knife-point by J.G. to drive away quickly. James denied that the knives identified at trial as having been used in the commission of the crimes belonged to him.

A motion for a directed verdict of acquittal should be granted only when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. On appeal, a reviewing court may consider all the evidence in the case,³ and must view the evidence in the light most favorable to the verdict. The test established in Jackson v. Virginia,⁴ is the appropriate one to use when the sufficiency of the evidence is challenged, whether the challenge is from the denial of a directed verdict or the denial of a motion for new trial based upon alleged insufficiency of the evidence. ⁵

The testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including prosecutions for treason, prosecutions for perjury, and felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient.⁶

A defendant may not be convicted on the uncorroborated testimony of an accomplice; however, only slight evidence of a defendant's identity and participation from an extraneous source is required to corroborate the accomplice's testimony and support the verdict. Sufficient corroboration may consist of either direct or circumstantial evidence which connects the defendant with the crime, tends to show his participation therein, and would justify an inference of the guilt of the accused independently of the testimony of the accomplice.⁷

“If there is slight evidence of corroboration, the sufficiency of corroboration is peculiarly a matter for the jury.” ⁸ “[T]he accused's own statement can serve to corroborate his accomplice's inculpatory testimony.” ⁹ And “[w]hile mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred.” ¹⁰

Here, James's own testimony corroborated J.G.'s testimony and showed his participation in the commission of the crimes. James testified that he was with Turner and J.G. the evening that the crimes were committed and that he drove Turner and J.G. to the restaurants. In addition, J.G.'s mother (who was also James's mother-in-law) testified that on the day of the crimes, before they were committed, she heard Turner ask James's girlfriend for the keys to James's and his girlfriend's knife collection; she heard Turner tell James “something like this will work, it's been done before, it'll work, don't worry about it”; and she heard Turner say “something like, when we get back everyone's pocket will be filled.”

J.G.'s mother testified also that before the three left she saw knives in the car and tried to get her son out of James's car. After the three left, J.G.'s mother noticed that the knife cabinet, which was always kept locked, was unlocked and it appeared that some knives were missing.

The evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that J.G.'s testimony was corroboratedand that James was the “getaway” driver for J.G. and Turner and a participant in the commission of the crimes.¹¹

2. James contends that the trial court committed harmful error by allowing J.G.'s mother to testify as to Turner's out-of-court's statements before the state had proved the fact of a conspiracy. We note that James's argument is not that the state failed to prove the existence of a conspiracy.

OCGA § 24–3–5 provides that after the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all. Notwithstanding the first clause of the Code section, ... such hearsay statements are admissible when the State at some point before the close of evidence establishes a prima facie case of conspiracy independent of the co-conspirator statement.¹²

Stated another way:

while it may generally be the better practice to require a prima facie case of conspiracy first to be made, before admitting evidence of the acts and declarations of [an] alleged conspirator[ ] there is no inflexible rule to that effect. The trial court has some discretion as to the order in which testimony may be introduced; and if a prima facie case of conspiracy is shown on the whole evidence, the admitting of such testimony is not error.¹³

Inasmuch as a conspiracy may be shown by proof of an agreement between two or more persons to commit a crime, J.G.'s testimony was sufficient to make a prima facie case of conspiracy.¹⁴ And the trial court's admission of Turner's statements that were made in the presence of J.G.'s mother before the state proved the fact of the conspiracy did not constitute reversible error. ¹⁵

3. (a) James contends that the trial court committed harmful error by allowing the state to impeach J.G. because J.G. gave no testimony that was inconsistent with any prior out-of-court statement he had given. James argues that J.G.'s out-of-court “statement and his testimony were not contradictory, nor were they inconsistent, they were just not complete.” But this contention is belied by the record.

At trial, the prosecutor asked J.G. whether James had “said anything about what you were supposed to do while you were inside the Taco Bell,” and J.G. replied “No, ma'am.” But when asked, later at trial, about prior statements he had given to the police regarding that matter, J.G.'s response was contradictory:

Q. (Prosecutor) Do you remember talking to the police about what had been said in the car by [James] before you went into the Taco Bell?

A. Yes, ma'am.

Q. Okay. And what did you tell the police that he had said?

A. I told them that while I was at the house, that—

Q. No, not while you were at the house. We're talking about in the car before you went to Taco Bell.

A. I'm not exactly sure what he said before I got out of the car. I mean, it—

Q. Do you remember—I'm sorry. Go ahead.

A. He just told us to come out quickly.

Q. He told you to come out quickly.

What were the words that you used that you told the police?

A. I don't remember. I can't remember that far back from that day.

Q. Do you remember that you told the police that he said hurry up?

J.G. confirmed that he had previously told the police that James told him and Turner to “be quick in there,” and he told J.G. to listen to what Turner told him to do, to do what Turner...