Milner v. State

• Decision Date: 18 November 2002
• Docket Number: No. A02A1778.,A02A1778.
• Citation: 574 S.E.2d 457,258 Ga. App. 425
• Parties: MILNER v. The STATE.
• Court: Georgia Court of Appeals

574 S.E.2d 457

258 Ga. App. 425

MILNER v. The STATE.

No. A02A1778.

Court of Appeals of Georgia.

November 18, 2002.

Teddy L. Henley, for appellant. Bryant G. Speed II, Dist. Atty., Kay A. Wetherington, Fred R. Simpson, Asst. Dist. Attys., for appellee.

MIKELL, Judge.

A jury convicted Yata Nicole Milner of armed robbery, and the trial court sentenced her to ten years confinement. Milner's co-defendant, Timothy Heath, was convicted of armed robbery and possession of a firearm during the commission of a crime. Following the denial of Milner's motion for new trial, she filed the present appeal, arguing that the victim's in-court identification of her was impermissibly tainted by the leading questions of the prosecutor and that absent the identification, the evidence was insufficient to support her conviction. We disagree and affirm.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. Paul v. State, 231 Ga.App. 528, 499 S.E.2d 914 (1998). We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, 233 Ga.App. 217(1), 504 S.E.2d 53 (1998).

So viewed, the evidence shows that on the night of August 29, 2000, 65-year-old Ralph Woods was beaten and robbed in his home. Woods testified that at approximately 10:50 that night, Shari Jackson and another woman came to his house and asked to use the bathroom. He testified that he knew Jackson because she was a former neighbor but that he did not know the other woman. According to Woods, after the two women entered his house, two men came in behind them. One of the men held a pistol to Woods' head, struck him repeatedly, and took his wallet. Woods described the man who held the weapon and beat him as having gray eyes. According to Woods, his wallet contained over $200, his identification, Social Security, and insurance cards, and photographs of family members. Woods testified that the two men fled on foot and that the two women drove off in a green, late model Oldsmobile Cutlass. A neighbor called 911.

Officer Lamar Eason of the Rome Police Department reported to Woods' home. Officer Eason testified that he observed a visible knot resembling a goose egg on the back of Woods' head. Woods told the officer that he had been robbed by two men and two women. In addition to identifying one woman as Jackson, Woods told Officer Eason that he believed the second woman was an individual named Shirley Sellers. Woods told the officer that he did not recognize either of the men.

Detective Tom Bojo testified that he showed Woods two photographic lineups containing pictures of Jackson and Sellers on September 21, 2000. According to Detective Bojo, Woods immediately selected the picture of Jackson and stated that she was one of the four people who participated in the robbery. Woods also identified Sellers, but he told the detective that he had been mistaken and that Sellers was "not the lady that robbed me." Woods explained that he knew Sellers and that she had robbed him on another occasion before moving to Mississippi, but that she did not participate in the robbery on August 29.

Detective Bojo interviewed Jackson on October 2, 2000. Jackson admitted that she participated in the robbery and told the detective that Milner and Heath were also involved. Police subsequently arrested Jackson, Milner, and Heath. Detective Bojo showed Woods photographic arrays containing pictures of Milner and Heath. According to the detective, Woods stated that "[t]hese pictures look old," and he was unable to identify either of the defendants' photographs.

At trial, when the state asked Woods to identify the gray-eyed man who beat him, Woods, who was looking at the jury box at the time, initially stated that he did not see the man in the courtroom. The state then asked Woods to "[l]ook really good around the courtroom" and finally asked, "[d]o you see him at this table right here," indicating the defense table where Milner and Heath were seated.¹ Referring to Heath, Woods responded, "I believe he's the boy who ... hit me in the head with the pistol." The state subsequently asked Woods to identify the woman other than Jackson who participated in the robbery. Woods positively identified Milner and stated that he was sure that she was the second woman who was involved. Counsel for Milner did not object to the identification.

The charges against Jackson in this case were dismissed, presumably in connection with a plea bargain involving numerous charges unrelated to this incident. Jackson identified Milner and Heath at the trial. She testified that on the afternoon of August 29, 2000, she, Milner, and Heath discussed robbing someone that night; that Milner drove the vehicle, which was either a blue Oldsmobile Cutlass or Buick Regal; that she, Heath, and a man named Rico Carter² were passengers in the car; that when they arrived at Woods' home, she and Milner asked to use the bathroom, and Woods allowed them to come inside; that Heath entered the house, brandished a weapon, and struck Woods in the head; and that she ran from the house, got into the car with Milner, and subsequently reunited with Heath and Carter down the street. Jackson further testified that Milner and Heath told her they planned to flee to Ohio. According to Jackson, she, Milner, Heath, and Carter divided the money they took from Woods' wallet.

1. Milner argues that the victim's in-court identification of her was tainted by the state's suggestion that Woods look at the defense table when he was asked to identify Heath. She also contends that Woods was tentative when he identified her. Finding no error, we affirm.

The law is clear that "[i]t is error to allow testimony concerning a pre-trial identification of a defendant if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification." (Emphasis supplied.) Clark v. State, 271 Ga. 6, 12(7)(b), 515 S.E.2d 155 (1999), citing Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Reid v. State, 210 Ga.App. 783, 786(2), 437 S.E.2d 646 (1993). An identification procedure is deemed impermissibly suggestive when it "is the equivalent of the authorities telling the witness `This is our suspect.'" (Citation omitted.) Clark, supra. However, in the case sub judice, there is no issue regarding the pre-trial identification procedure employed. In fact, the jury heard evidence that Woods was unable to identify Milner or Heath from a photographic lineup. Rather, Milner assigns error only to Woods' in-court identification of her as one of the four individuals who participated in the beating and robbery.

There is an important distinction between a pre-trial identification procedure and a witness' in-court identification of a defendant, which is that when a defendant is currently on trial, the state has essentially told the witness, "this is our suspect." Common sense dictates that there is no secret as to who the defendant is once a trial has begun, and the state is not required to provide a lineup from which a witness may select the...