Lane v. State

• Decision Date: 23 October 2013
• Docket Number: Nos. A13A1357,A13A1358.,s. A13A1357
• Citation: 324 Ga.App. 303,750 S.E.2d 381
• Parties: Merkeith LANE v. The STATE. Dominique Lane v. The State.
• Court: Georgia Court of Appeals

324 Ga.App. 303

750 S.E.2d 381

Merkeith LANE

v.The STATE.

Dominique Lane

v.The State.

Nos. A13A1357

A13A1358.

Court of Appeals of Georgia.

Oct. 23, 2013.

Certiorari Dismissed Sept. 8, 2014.

Peter D. Johnson, for Appellant (case no. A13A1357).

Manique W. Oliver, for appellant (case no. A13A1358).

S. Hayward Altman, Dist. Atty., Kelly Anne Jenkins, Asst. Dist. Atty., for Appellee.

McMILLIAN, Judge.

This appeal arises from armed robberies and burglaries at two locations in Louisville, Georgia on the same night. Appellants Merkeith Lane and Dominique Lane were two of the five persons charged with the crimes; four of the five were tried together and convicted. Appellants claim a number of errors at trial, including that: (1) a custodial statement by Merkeith was not freely and voluntarily given and therefore inadmissible; (2) the trial court erred in closing the trial to the public for the testimony of one witness; (3) the trial court erred in allowing the introduction of non-testifying co-defendants' statements that implicated Appellants; (4) Dominique's trial counsel was ineffective for failing to object to the in-court identification by one of the victims; (5) the trial court failed to instruct the jury that the testimony of an accomplice required sufficient corroboration to establish Dominique's participation in the crimes charged; and (6) there was insufficient evidence to convict Dominique of armed robbery, attempted armed robbery, and burglary. Finding no error, we affirm.

Reviewing the evidence in the light most favorable to the jury's verdict, as we must on appeal,¹ in the early morning hours of July 2, 2007, two women and one man were awakened at a residence in Louisville, Georgia by five men who demanded money. The women were so frightened that they hid under the bedcovers in their respective bedrooms, but the other victim, Eric Fleming, was taken from the bedroom and he was struck in the head with a gun. Shots were also fired. The perpetrators then left with a cell phone and approximately $170.

During this exchange, Fleming was able to identify two of the perpetrators, Merkeith and Dominique Lane, who were his cousins and whom Fleming has known all of their lives. Fleming also recognized one of the other perpetrators, B.M., as the one who shot the gun. However, upon being interviewed by law enforcement, Fleming did not initially disclose that he recognized Appellants, explaining that "You won't believe that two people in your life that you knew all your life would try—would do something like that." Fleming later received anonymous threatening calls at his workplace about testifying in court.

Also on the morning of July 2, 2007, Jacountress Martin and his friend Travis Washington arrived at Martin's home in Louisville, Georgia. Martin went inside where he encountered five intruders and was shot in the hand and thigh. Washington did not identify any of the perpetrators, and Martin did not testify at trial.

A few days after the robbery, Investigator Clark Hiebert interviewed Merkeith Lane.² In that interview, although Merkeith was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), he did not request an attorney, nor did he ask that the interview be terminated. Initially, Merkeith denied any part in the armed robberies, but he eventually confessed.

After the trial court denied the motion to exclude the statements, Investigator Hiebert was permitted to testify about Merkeith's confession while substituting the words "other" or "others" in place of the names of the other defendants with the exception of B.M. who testified. Likewise, Investigator Hiebert was permitted to testify about statements made by co-defendants Kyle Gilmore, Christopher Young, and Dominique Lane that each was with B.M. and "others" on the night of July 2, 2007, although none of these defendants admitted that they were involved in the armed robberies.

At trial, B.M. testified against the others. B.M. was 16 years old at the time of the robberies and had entered a plea deal that would allow him to be treated as a juvenile on the charges. Prior to B.M.'s testimony, the State requested that B.M. be treated as a juvenile and that the courtroom be closed for his testimony. The trial judge asked defense counsel if they had any objections to the closing of the courtroom, and none objected. B.M. testified that he, along with Appellants, Kyle Gilmore, and Christopher Young went to rob the first residence where they encountered Eric Fleming. He also admitted carrying the gun that went off. After robbing the first residence, the five perpetrators went to the second residence also to rob it, and B.M. and at least one of the other co-defendants shot at Jacountress Martin. Christopher Young, Dominique Lane, and B.M. had guns; Merkeith Lane did not.

After trial, Appellants were each convicted of two counts of armed robbery, criminal attempt to commit armed robbery, and two counts of burglary. Merkeith's counsel did not file a motion for new trial, but on July 14, 2011, the trial court authorized the filing of an out-of-time motion for new trial, which after a hearing, was denied. Merkeith timely filed his notice of appeal in Case No. A13A1357.

Dominique initially filed a motion for new trial on December 12, 2008, which was denied, and then a notice of appeal on August 31, 2009. After the appeal was docketed, Dominique raised an ineffective assistance of counsel claim against his trial and appellate counsel, leading to the appointment of new counsel, who filed a motion to remand to pursue the ineffectiveness claim. This Court granted the motion for remand, and the trial court heard and denied Dominique's second amended motion for new trial. The appeal in Case No. A13A1358 followed.

Case No. A13A1357

1. Merkeith Lane contends that the trial court erred in not suppressing his statements under OCGA § 24–3–50 because they were induced by hope of benefit. Former OCGA §§ 24–3–50 and 24–3–51³ provided:

To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury. The fact that a confession has been made under a spiritual exhortation, a promise of secrecy, or a promise of collateral benefit shall not exclude it.

The "slightest hope of benefit" refers to "promises related to reduced criminal punishment—a shorter sentence, lesser charges, or no charges at all." Brown v. State, 290 Ga. 865, 868–869(2), 725 S.E.2d 320. See also Preston v. State, 282 Ga. 210, 212(2), 647 S.E.2d 260 (2007) ("Generally, the reward of a lighter sentence for confessing is the ‘hope of benefit’ to which OCGA § 24–3–50 refers.") (citation and punctuation omitted); Brown v. State, 278 Ga. 724, 728(3), 609 S.E.2d 312 (2004) (" ‘slightest hope of benefit’ can mean hope of a lighter sentence"). "The promise of a benefit that will render a confession involuntary under OCGA § 24–3–50 must relate to the charge or sentence facing the suspect." (Citation omitted.) White v. State, 266 Ga. 134, 135(2), 465 S.E.2d 277 (1996).

"In determining the admissibility of a custodial statement during a Jackson v. Denno hearing, the trial court must consider the totality of the circumstances and apply a preponderance of the evidence standard." (Citation and punctuation omitted.) Samuels v. State, 288 Ga. 48, 49(2), 701 S.E.2d 172 (2010). "On appeal, when we review the denial of a motion to suppress a statement, we owe no deference to the way in which the trial court resolved questions of law, but we generally accept its findings about questions of fact and credibility unless clearly erroneous." (Citation and footnote omitted.) Edenfield v. State, 293 Ga. 370, 374, 744 S.E.2d 738 (2013). See also Preston, 282 Ga. at 212(2), 647 S.E.2d 260 ("A trial court's findings regarding the admissibility of an incriminating statement will be upheld on appeal unless clearly erroneous."); Pittman v. State, 277 Ga. 475, 477(2), 592 S.E.2d 72 (2004) (same). But "when the material facts are not in dispute—when they can be ascertained definitely, for instance, from a video recording of a statement—we give less deference to the fact findings of the trial court." Edenfield, 293 Ga. at 374, n. 6, 744 S.E.2d 738.

Turning first to the partial transcript of the recording of Merkeith's interview, Merkeith complains that Investigator Hiebert offered an impermissible hope of benefit when he explained:

Come sentencing time, the district attorney says, Your Honor, we talked to this young man and he had an opportunity to work something out without all the expenses of a jury trial in this county, and now we've had two jury trials. We would like to see him receive the maximum on each count but to run consecutive rather than concurrent. And that means when one sentence is complete, then the next one starts. And I feel like on this case I wouldn't be a bit surprised if the district attorney is going to want to go consecutive unless somebody decides to—the ones that decide to help theirself, they're going to get a break.

Investigator Hiebert also referenced a conversation that he had with the district attorney's office in which "[t]hey said, if Merkeith wants to get straight, if he wants to tell the truth, listen to him. If he don't, we'll deal with it." After these exhortations, Merkeith again denied knowledge about the armed robberies. But after some further discussion about how the district attorney may favor the persons who "get straight" before trial, Merkeith began confessing to the armed robberies. The entire interview took 60 to 90 minutes.

Based on our review of the record, we find that the trial court correctly determined that the statements made by Investigator Hiebert do not contain an explicit or implicit offer for a reduced sentence such that they would constitute an impermissible hope of benefit. To the contrary, the investigator's explanation of consecutive versus concurrent sentences and the...