Kamusoko v. State
| Decision Date | 14 January 2022 |
| Docket Number | A21A1597 |
| Citation | 362 Ga.App. 276,868 S.E.2d 253 |
| Parties | KAMUSOKO v. The STATE. |
| Court | Georgia Court of Appeals |
Charles Henry Frier, Smyrna, for Appellant.
Sherry Boston, Deborah D. Wellborn, Decatur, for Appellee.
Phipps, Senior Appellate Judge.
A jury found Christopher Kamusoko guilty of hijacking a motor vehicle, armed robbery, attempted armed robbery, and obstruction of an officer. Kamusoko filed a motion for a new trial, which he amended, and the trial court denied the motion. He appeals, arguing that (1) the evidence was insufficient to support his convictions, (2) the trial court erred in admitting into evidence police dispatch reports, (3) his conviction for armed robbery should have been vacated, (4) the trial court erred in sentencing him for attempted armed robbery, and (5) he received ineffective assistance of counsel. For the following reasons, we affirm Kamusoko's convictions and sentences.
1. The standard of review regarding the sufficiency of the evidence is well settled:
When evaluating challenges to the sufficiency of the evidence, we view the evidence presented at trial in the light most favorable to the jury's verdicts and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes for which he was convicted. We leave to the jury the resolution of conflicts or inconsistencies in the evidence, credibility of witnesses, and reasonable inferences to be derived from the facts, and we do not reweigh the evidence. Although the State is required to prove its case with competent evidence, there is no requirement that it prove its case with any particular sort of evidence. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld.
Clark v. State , 309 Ga. 473, 477, 847 S.E.2d 364 (2020) (citations and punctuation omitted).
Viewed in that light, the evidence shows that at approximately 10:30 a.m. on September 15, 2016, a black man wearing a studded blue jean vest, blue jean pants, and a hat knocked on J. C. Sims's door. After a brief exchange, Sims watched as the man walked across the street to Darrell Ellison's house. Sims observed Ellison drive up to his house and open his car door, saw the man who had just walked across the street approach Ellison from behind while pointing "a shiny object" at him, and watched Ellison run from the man, leaving his car door open. Sims called 911, and a recording of the call was played for the jury. Police arrived approximately ten minutes after the 911 call.
Ellison testified that as he was leaving his home on September 15, 2016, a man wearing jeans, a cut-off jacket, and a red hat attempted to flag him down, but Ellison ignored him. Approximately fifteen minutes later, Ellison returned to his house and saw the same man talking to his neighbor. The man then walked across the street and asked Ellison for a cigarette while Ellison was sitting in his car. Ellison said he did not have any, and the man left; however, as Ellison was getting out of his car, the man came up behind him and said, "Give it up ... you know what it is." The man pointed a shiny silver pistol at Ellison's chest, and Ellison ran to a neighbor's house. He later saw the man run down the road. Ellison called 911, and a recording of his call also was played for the jury.
Antonio Myke testified that, as he was driving his grey Kia Sorento SUV from his home that same morning, he stopped to talk to a neighbor, and a man approached them, pulled out two guns, one of which was silver, and pointed them at Myke and his neighbor. According to Myke, he exited his SUV, and the man got in the vehicle, "pressed the gas all the way down[,]" and "took off like crazy." After the man sped off, Myke heard a "bang" from the direction where the assailant had driven. Myke called 911, and the recording of that call was played for the jury. Police arrived within ten minutes, and Myke gave them a description of his SUV.
A detective with the DeKalb County Police Department at the time of these incidents testified that as he responded to the scene of the carjacking at approximately 11:30 a.m., he approached a silver Kia SUV with its tailgate up and two flat front tires. The detective identified the area where the incidents occurred for the jury, noting that the SUV was less than a mile from Sims's and Ellison's houses. The SUV was traveling slowly, and the detective thought it was odd. As the detective drove around the SUV, he glanced at the driver and observed a black male with a red hat and a jean vest. The detective recalled that the suspect of the alleged robbery was a black male with a red hat and a jean vest and the vehicle that was taken was a silver Kia SUV.
When the driver of the SUV noticed the detective, he abandoned the SUV and ran away. The detective identified himself as a law enforcement officer and gave the suspect multiple oral commands to stop, but the suspect looked back at the detective and continued to run, jumping a fence and running across a field. The detective chased the suspect for approximately a quarter of a mile. At some point, Chris Starnes and Steve Swindle, who were working in the vicinity, joined the chase. Swindle chased the suspect over another fence and into thick bushes, while the detective and Starnes drove in Starnes's car to look for Swindle and the suspect. When the detective could not locate the suspect, he circled back to retrieve the suspect's red baseball cap, which had fallen off during the chase. Approximately five minutes later, the detective was told that officers had apprehended someone, and he identified the man who was apprehended as the same man who was driving the SUV and ran from him.
Starnes testified that he and Swindle were working on a construction site when they saw an officer chasing a young, black male. Swindle ran after the suspect, and Starnes drove the officer to look for the suspect. When they did not find the suspect, Starnes dropped off the officer at the construction site, and the officer walked back to his patrol car. Shortly thereafter, Starnes heard Swindle screaming his name and followed the voice for about 30 yards. Swindle had the suspect pinned down and told Starnes to remove a pistol from the suspect's pants, which he did. Starnes then called 911, and police arrived within five minutes.
An officer with the DeKalb County Police Department testified that as she responded to the armed robbery call, Starnes flagged her down, explaining that his friend had the suspect pinned down in the shrubbery. The officer took the suspect into custody at 11:49 a.m. The officer noticed a pistol near the suspect, and a second gun was found in the suspect's front pocket.
Police searched the SUV and located a phone that did not belong to Myke. A search of the phone revealed two photographs showing an individual wearing the studded jean vest and red hat worn by Kamusoko. Those images were introduced into evidence at trial.
The State also introduced into evidence a jean vest, a red hat with "23s" on it, two guns, photographs of the abandoned SUV, and a photograph of the individual who abandoned the SUV and fled from the detective. Although Sims, Ellison, and Myke were unable to identify the assailant, they, along with the detective, the DeKalb County officer, and Starnes, identified the assailant's clothing, guns, and other items introduced into evidence by the State. For example, Sims and Ellison identified the jean vest introduced by the State as the same one the man in their neighborhood wore on September 15, 2016, The detective identified the vest as the one worn by the suspect both when he fled and when he later was apprehended, and Starnes identified the jean vest as the one worn by the suspect he helped apprehend. Ellison identified the red hat with "23s" on it, introduced by the State, as the one worn by the assailant who approached him, and the detective identified the hat as the one that fell off the suspect who fled. In addition, Ellison identified the silver pistol introduced by the State as the one the assailant pointed at him, Myke identified both the silver pistol and the second gun introduced by the State as the ones the assailant pointed at him, and the DeKalb County officer identified both guns as the ones she recovered from Kamusoko. Myke also identified pictures of the recovered vehicle as the SUV stolen from him at gunpoint, and the detective identified the same photographs as the SUV he encountered on his way to the carjacking site. The detective also identified a photograph as the suspect who was driving the SUV and subsequently was apprehended.
At trial, Kamusoko admitted by stipulation that the jean vest, red hat, two handguns, and cell phone belonged to him. Defense counsel suggested during his closing argument that Kamusoko had gotten into the SUV after someone else stole it, and he ran from police because he knew it was illegal to take possession of a stolen vehicle.
The jury found Kamusoko guilty of hijacking a motor vehicle, armed robbery, attempted armed robbery, and obstruction of an officer. Kamusoko appeals following the denial of his motion for a new trial.
On appeal, Kamusoko argues that his convictions must be reversed because the circumstantial evidence was insufficient to identify him as the perpetrator of the carjacking and attempted armed robbery.1 Specifically, he asserts that none of the eyewitnesses, including the two victims, identified him as the perpetrator even though the crimes were committed in broad daylight at close range. In addition, Kamusoko contends that the alternative hypothesis presented by his defense counsel – that Kamusoko got into the SUV after someone else stole it and ran from police because he knew it was illegal to take possession of a stolen vehicle – was reasonable, and, therefore, the State failed to meet its burden of excluding every other reasonable...
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