Jones v. State
| Decision Date | 22 March 2013 |
| Docket Number | No. A12A2082.,A12A2082. |
| Citation | 740 S.E.2d 655,320 Ga.App. 681 |
| Parties | JONES v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Laura Grace Hastay, Savannah, for Appellant.
Larry Chisolm, Dist. Atty., Julayaun M. Waters, Reginald Charles Martin, Margaret Heap, Asst. Dist. Attys., for Appellee.
Israel Moses Jones was tried by a Chatham County jury and convicted of armed robbery,1 burglary,2 and impersonating a police officer.3 He now appeals from the denial of his motion for a new trial, asserting that the trial court erred in denying his motions to suppress the eyewitness identifications of him resulting from allegedly impermissibly suggestive photographic lineups and the evidence seized as the result of an illegal search. Jones further contends that the trial court erred by refusing to admit evidence that, he claims, would have supported his sole defense of mistaken identity and in denying his motion to sever his trial from that of his co-defendant and brother, Robert Jones. Finally, Jones claims that there existed a fatal variance between the indictment and the evidence that renders the evidence insufficient to sustain his conviction for armed robbery. We find no error and affirm.
On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury's guilty verdict. Martinez v. State, 306 Ga.App. 512, 514, 702 S.E.2d 747 (2010). So viewed, the record shows that on the morning of May 31, 2008, a man dressed in a dark jacket and carrying a black briefcase entered a local grocery store known as Chu's Market. The man spoke with the owner of the market, Chu Ping, identified himself as “Detective John,” and told Mr. Chu that he needed to speak with the owner in the store's office. Mr. Chu obliged, but once the men were in the office, “Detective John” removed a gun from his briefcase and robbed Mr. Chu, taking all of the money in both the store's safe and Mr. Chu's wallet. After the robber left, Mr. Chu retrieved his own gun and ran outside. There he saw a car parked in front of his store, with the robber standing at its passenger door and a second man standing at the driver's door. Mr. Chu fired his gun toward the car and both men fled on foot. Police later showed Mr. Chu a photographic lineup from which he identified Jones as the man who robbed him.
The morning of the robbery, Jannie and Alfred Smith were at their home, which is located a short distance from Chu's Market. Within a few minutes after the robbery, both Mr. and Mrs. Smith saw two men approaching their house by way of an open lot that adjoined their yard. Mrs. Smith testified that she thought the men were police officers, because as they walked toward the house she saw one of them wearing a badge.
The men entered onto the Smiths' property and asked for a ride “away from there” and for the use of a telephone. After the Smiths refused both requests, one of the men forced his way inside their house. The man remained in the house briefly but stepped outside when he heard sirens approaching, and Mr. Smith was able to lock the door behind him. Mrs. Smith later saw this same man kneeling near a small storage shed in her back yard. Approximately three weeks after this incident, police showed Mr. Smith a photographic lineup from which he identified Jones as the man who had forced his way into the Smith residence.
Police officers responding to the Smith home searched the Smiths' back yard as well as the adjoining lot through which the Smiths had seen the men approaching. In the Smiths' back yard, police found a black briefcase 4 near the storage shed and a dark jacket in an area immediately across from the shed; neither of these items belonged to the Smiths. Police also recovered a small black gun from the adjoining lot. At trial, Mr. Chu identified the black briefcase, the dark jacket, and the gun as looking like those that were worn or used by Jones during the robbery.
Additionally, one officer who participated in the search testified that he spotted a black badge holder in the adjoining lot. The officerwas unaware, however, that one of the robbery suspects had been posing as a police officer and he therefore attached no significance to the badge holder. Instead, he assumed that the badge holder belonged to and/or had been dropped by one of the other officers at the scene. After learning that it might be related to the robbery, the officer returned to the lot and attempted to locate the badge holder, but he could not find it.
The investigating officers obtained a search warrant for the white Ford Explorer parked in front of the store that Mr. Chu had identified as possibly belonging to the robbers. During the execution of that warrant, police discovered a large-screen television that had been stolen the previous day during a burglary at a local rental center. Using surveillance videos from the rental center, police later arrested a third party—i.e., a party that was neither Jones nor his brother—for the burglary. Officers also found a wallet and driver's license belonging to Robert Jones in the Explorer, as well as a pay stub belonging to Shamira Hamilton.
Police interviewed Ms. Hamilton, who told them that she was romantically involved with Robert Jones and that he sometimes stayed at her apartment. Following this interview, police obtained a search warrant for Ms. Hamilton's apartment, which they executed during the early morning hours of June 1, 2008. Upon entering the apartment, police found Robert Jones sitting on the sofa and a set of Ford car keys located a short distance from him. It was later determined that these keys belonged to the Ford Explorer found parked outside of Chu's Market.
Also in Ms. Hamilton's apartment police found Israel Jones's partially torn social security card lying on a hallway floor, a neck chain that a police officer identified as being the kind used with a badge holder, and a gym bag. The gym bag was sitting on the floor in one of the apartment's bedrooms, and it was open. Near the top of the open gym bag was an empty plastic bag with a label on it; the label indicated that the bag had originally held a badge holder. Inside the gym bag, police also found a copy of the spring 2008 issue of Quartermaster magazine 5 addressed to Israel Jones at his home in Riverdale. Based on this evidence, police arrested Jones and he was subsequently charged with the crimes at issue.
1. Prior to trial, Jones moved to suppress the identifications of him made by Mr. Chu and Mr. Smith, arguing that the photographic lineups used by police were impermissibly suggestive. The trial court denied that motion. On appeal Jones contends that this ruling was error. We disagree.
This Court will not set aside a conviction based on a pretrial identification by photograph and a subsequent identification at trial unless the record shows that the “photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Citation, punctuation and footnote omitted.) Pinkins v. State, 300 Ga.App. 17–18, 684 S.E.2d 275 (2009). “An identification procedure is impermissibly suggestive when it leads the witness to an all but inevitable identification of the defendant as the perpetrator, or is the equivalent of the authorities telling the witness, ‘this is our suspect.’ ” (Citation and punctuation omitted.) Davis v. State, 286 Ga. 74, 76(2)(a), 686 S.E.2d 249 (2009). Additionally, “[t]he taint which renders an identification procedure impermissibly suggestive must come from the method used in the identification procedure.” (Citation and punctuation omitted.) Id.
In his brief, Jones does not contend that there was anything inherently suggestive in either the photographs used in the lineups or in the way in which police presented those photographs. Rather, as best we can tell, he is contending that the identification procedure was impermissibly suggestive because: (i) before being shown the photographic lineup containing six pictures, police showed Mr. Smith a single picture of Israel Jones; and (ii) when Mr. Chu was unable to identify either of the perpetrators from the first photographic lineup they showed him, police offered him a “second bite at the apple” by showing him a second photographic lineup, from which he identified Jones. We find no merit in either of these contentions, however, as they are based on factual misrepresentations.
The record shows that on the day of the incidents in question, police mistakenly showed Mr. Smith a single picture of Robert Jones that was not part of a photographic lineup. There is no evidence, however, that police ever showed Mr. Smith a picture of Israel Jones by itself. Rather, the record reflects that the only photograph police showed Mr. Smith of Israel Jones was the one contained in the photographic lineup.6 The record also reflects that while Mr. Chu was shown two separate photographic lineups, he was not given two opportunities to identify Jones, because Jones's picture was not included in the first lineup. The first photographic lineup Mr. Chu viewed contained a picture of Robert, but not Israel Jones. And Mr. Chu identified one of the men in that first lineup (other than Robert) as someone who may have possibly been the second man involved in the robbery; Mr. Chu stated definitively, however, that none of the men in that lineup was the man who robbed him. The second photographic lineup did contain a picture of Jones, and Mr. Chu identified that picture as being of the man who robbed his store.
Given that there was nothing inherently suggestive or otherwise improper about the photographic lineups, the trial court did not err in admitting the eyewitness identification of Jones.
2. Jones also argues that the trial court erred in denying his motion to suppress the evidence against him that police obtained during...
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