Johnson v. State

• Decision Date: 06 November 2013
• Docket Number: No. A13A1540.,A13A1540.
• Citation: 751 S.E.2d 141,324 Ga. App. 508
• Parties: JOHNSON v. The STATE.
• Court: Georgia Court of Appeals

324 Ga.App. 508

751 S.E.2d 141

JOHNSON

v.The STATE.

No. A13A1540.

Court of Appeals of Georgia.

Nov. 6, 2013.

Long Dai Vo, Jimmonique R.S. Rodgers, for Appellant.

Robert D. James Jr., Dist. Atty., Leonora Grant, Asst. Dist. Atty., for Appellee.

MILLER, Judge.

Following a trial, a DeKalb County jury convicted Kelvin Johnson of kidnapping with bodily injury (OCGA § 16–5–40(d)(4)), aggravated assault (OCGA § 16–5–21(a)(2)) and one count of possession of a firearm during the commission of a crime (OCGA § 16–11–106(b)(1)).Johnson appeals from the denial of his motion for new trial, contending that the trial court erred by denying his motion to suppress because the officer lacked reasonable suspicion to stop the vehicle in which he was riding as a passenger.For the reasons that follow, we affirm.

On appeal from a trial court's ruling on a motion to suppress or a motion in limine, we may consider all relevant and admissible evidence of record introduced at the motion hearing or during trial.While a trial court's findings as to disputed facts 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.

(Citations and punctuation omitted.)Walker v. State,314 Ga.App. 67(1), 722 S.E.2d 887(2012).

So viewed, the evidence shows that around midnight on November 1–2, 2010, Johnson and three other men went to the victim's house.The victim knew one of the men, codefendant Germaine Gaither, but did not know Johnson or the others.The victim agreed to go with Gaither to Aspen Woods, a nearby apartment complex, because he believed they were going to smoke some marijuana.

Upon arriving at the apartment complex, Gaither left the car and informed the others he would go speak to his contact so they could smoke marijuana.Gaither returned a few minutes later and informed everyone in the car that it was okay to get out.The men, including the victim and Johnson, exited the vehicle and walked toward the apartment building but did not enter.

After waiting a while to be let inside an apartment, Gaither said he needed to use an ATM.Johnson and the group walked back toward the car, with the victim in front of the others.The victim was then struck from behind and fell to the ground, where he was kicked and punched.The victim's face was then covered with duct tape and his arms and legs were also bound with duct tape.The victim was carried to the car with a shotgun pressed against the back of his head and placed in the trunk.

Around the same time, an Aspen Woods resident looked out her window and saw two men standing by a small, silver or gray-colored, four-door vehicle, and one of the men appeared to be hiding an object along the side of his leg.The car was parked under an illuminated light pole.Based on the men's furtive movements around the car, the resident initially believed the men were going to break into the vehicle.The resident called 911 and stayed on the phone with the 911 operator while she described her observations.The resident witnessed the men walking or hurrying between the apartment building and the car, and she stated that she believed the men were robbing somebody's apartment and carrying items to the car.The resident then saw all four men, described as four black males wearing black clothing, get into the car and drive off and turn right out of the apartment complex onto Candler Road.

While the resident was talking to the 911 operator, a nearby police officer was dispatched to the location.Dispatch informed the officer of a possible burglary in progress involving four black males in black clothing in a silver vehicle.The officer parked his patrol car near the only exit/entrance to the apartment complex.Almost immediately thereafter, the officer observed a silver vehicle, which matched the description given by dispatch, approach his patrol car and turn right out of the apartment complex.As the car passed the officer, he observed that the occupants matched the description given by dispatch.The officer then followed the car to an intersection along Candler Road, where he and other responding officers conducted a stop.The stop occurred only a few minutes after the resident observed the four males get into the vehicle and leave the apartment complex.

One officer approached the stopped vehicle and spoke with the passenger at the driver side, asking if there were any weapons in the vehicle.The passenger answered in the affirmative and the officer saw a shotgun in between the passenger's legs.Johnson was taken out of the vehicle, searched and placed in a patrol car.Officers found several shot-gun shells in Johnson's front pocket.The officers removed the other men from the vehicle and searched the car, finding the shotgun, a rifle case, and a ski mask.During the search, the officers noticed a gap between the rear seat and the trunk and observed what appeared to be a person in the trunk.The trunk was opened and the victim was discovered hog-tied with duct tape, bruised, and bleeding.The 911 caller, who had arrived at the scene within three minutes of placing the call, testified that the car and suspects matched her observations at the apartment complex.

On appeal, Johnson contends that the trial court erred in denying his motion to suppress because the resident's 911 call was insufficient to provide reasonable articulable suspicion required for a stop.¹We disagree.

To establish reasonable suspicion to make an investigative stop, the totality of the circumstances must show that...