Lindsey v. State

• Decision Date: 21 May 2013
• Docket Number: No. A13A0051.,A13A0051.
• Citation: 321 Ga.App. 808,743 S.E.2d 481
• Parties: LINDSEY v. The STATE.
• Court: Georgia Court of Appeals

321 Ga.App. 808

743 S.E.2d 481

LINDSEY

v.The STATE.

No. A13A0051.

Court of Appeals of Georgia.

May 21, 2013.

William Meehan Fleming, for appellant.

Rebecca Ashley Wright, Dist. Atty., Charles R. Sheppard, Madonna Marie Little, Asst. Dist. Attys., for appellee.

MILLER, Judge.

Following a jury trial, Marcus Antonio Lindsey was convicted of two counts of armed robbery (OCGA § 16–8–41(a)). Lindsey appeals from the denial of his motion for new trial, contending that (1) the evidence did not support his convictions; (2) the trial court erred in admitting improper identification testimony; (3) the trial court incorrectly instructed the jury on identification testimony; (4) the trial court erred in admitting his taped statement; and (5) the trial court improperly played his co-defendant's taped statement. For the reasons that follow, we affirm Lindsey's convictions.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the trial evidence shows that on June 21, 2002, the first victim left work around 1:30 to 2:00 a.m., and she drove to a Burger King on Washington Road in Richmond County. The second victim, who was a friend, followed the first victim in his vehicle and parked next to her in the Burger King parking lot. The second victim got out of his vehicle and stood next to the driver's side of the first victim's car to discuss getting something to eat.

While the victims were talking, Carlos McCain, Lindsey and a third individual were driving around in a blue Honda Civic when they spotted the two victims in the Burger King parking lot. The group parked the Civic next to the second victim's car. One of the men came up to the second victim with what appeared to be a gun, demanded the victim's money and moved the second victim away from the first victim's car. The second victim took $400–$600 in cash, his checkbook and his work keys out of his pockets and dropped them on the ground. Meanwhile, an assailant, who was wearing a plaid shirt, pointed a gun at the first victim's face through the passenger side window and said, “Give me your money.” The first victim handed the man her purse, which contained approximately $1,000 in cash. While the man went through the first victim's purse, the third assailant approached the first victim through the driver's side window, pressed a metal object into her face, and repeatedly told her to give him money. All three assailants—McCain, Lindsey and the third individual—got into the Civic and drove off.

Soon thereafter, an officer from the Richmond County Sheriff's Office, was driving westbound on Washington Road near the Interstate 20 bridge when he noticed a blue Civic with no headlights coming toward him in the opposite direction. The car was the same Honda Civic that McCain had borrowed on June 20, 2002, and Lindsey was one of the passengers in the car. When the officer turned around to pull over the Civic, the driver of the Civic pulled into a convenience store and drove around to the back of the store. The driver then stopped the car, all three occupants jumped out, and they ran into the woods.

The officer called for back-up, and the responding officers searched for the three assailants. Meanwhile, the Civic was inventoried, and an officer found the first victim's purse and the second victim's checkbook inside the vehicle. Approximately 15 to 20 minutes later one of the responding officers found Lindsey about 30 yards from the car. Lindsey was lying down next to a tree with brush or leaves covering him. Lindsey was identified as one of the assailants who jumped out of the Civic and fled, and he was arrested for obstruction. When Lindsey was booked into the jail that morning, he was wearing a plaid shirt.

Later that morning, a Richmond County investigator interviewed Lindsey. The investigator read Lindsey his Miranda rights, and Lindsey waived his rights in writing. During the interview, Lindsey told the investigator that he was present during the robbery, he exited the car and he approached the two victims to distract them while the other participants got ready to rob the victims. Lindsey also said that he spoke to the first victim and told her to calm down because she was screaming and crying. Lindsey said that they were stopped by police a few minutes after they drove away from the robbery scene. Lindsey and the others exited the car and fled.

Based on information that Lindsey provided during the interview, the investigator obtained a photograph of McCain and showed it to Lindsey. Lindsey identified McCain as one of the men in the car with him during the robbery. The investigator then retrieved a tape recorder and took Lindsey's recorded statement, during which Lindsey confirmed that he got out the car to distract the two victims. The investigator subsequently interviewed McCain. McCain confirmed that he, Lindsey and Lindsey's brother were involved in the armed robbery.

1. Lindsey contends that the evidence was insufficient to support his conviction. We disagree.

“A person commits the offense of armed robbery when, with intent to commit theft, he ... takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” OCGA § 16–8–41(a). Furthermore, “[i]n accordance with OCGA § 16–2–20(a), any person concerned in the commission of a crime is a party to it and may be convicted as a principal.” (Citation and punctuation omitted.) Bryson v. State, 316 Ga.App. 512, 514(1), 729 S.E.2d 631 (2012).

Here, the evidence showed that both victims were robbed by men driving a Honda Civic who were armed with a gun or what appeared to be a gun. Lindsey admitted that he distracted the victims while the other participants robbed them. When he was arrested, Lindsey was wearing a plaid shirt, and the first victim testified that one assailant was wearing a plaid shirt. Additionally, Lindsey and the other participants ran from the Civic shortly after an officer attempted to stop the car for driving without headlights. Lindsey's flight from the scene provided an additional circumstance from which the jury could infer his guilt. See Woodruff v. State, 233 Ga. 840, 842 (1), 213 S.E.2d 689 (1975) (holding that “evidence of flight may be admitted as one of a series of circumstances from which guilt may be inferred”) (punctuation omitted). Moreover, the first victim's purse and the second victim's checkbook were found in the Civic, from which Lindsey was seen exiting and fleeing. Thus, when viewed in the light most favorable to the jury's verdict, the evidence was sufficient to authorize the jury to convict Lindsey as a principal to the armed robbery of both victims.

2. Lindsey contends that the trial court erred in admitting improper identification testimony. We do not agree.

Lindsey argues that neither of the victims identified him as a participant in the armed robbery, and that the State's identification evidence was based on his and McCain's statements which should have been excluded. As set forth in Divisions 4 and 5 below, both Lindsey's and McCain's taped statements were properly admitted. Accordingly, this enumeration of error presents nothing for us to review.

3. Lindsey contends that the trial court erred in charging on identification, when the trial court instructed the jury to evaluate the “level of certainty shown by the witness.” Again, we disagree.

In Brodes v. State, 279 Ga. 435, 442, 614 S.E.2d 766 (2005), the Georgia Supreme Court disapproved of the pattern jury instruction on eyewitness identification authorizingjurors to consider a witness's certainty in his/her identification as a factor to be used in deciding the reliability of that identification. Although Lindsey's trial occurred before the Brodes opinion was issued, the Georgia Supreme Court has consistently applied Brodes to appeals in which the trial had concluded before Brodes was issued. See Lewis v. State, 291 Ga. 273, 278(4), 731 S.E.2d 51 (2012).

Nevertheless, Brodes does not require reversal. Unlike Brodes, other evidence besides eyewitness identification testimony linked Lindsey to the robbery. See Lewis, supra, 291 Ga. at 278(4), 731 S.E.2d 51;Rabie v. State, 294 Ga.App. 187, 195(5)(b), 668 S.E.2d 833 (2008). Notably, Lindsey admitted that he participated in the robbery by distracting the victims while the other participants robbed them, and after the robbery, he ran from the car which was used in the robbery and in which officers found items taken from the two victims. Moreover, eyewitness...