Patterson v. State

• Decision Date: 21 June 2018
• Docket Number: A18A0758
• Citation: Patterson v. State, 346 Ga.App. 530, 816 S.E.2d 461 (Ga. App. 2018)
• Parties: PATTERSON v. The STATE.
• Court: Georgia Court of Appeals

346 Ga.App. 530

816 S.E.2d 461

PATTERSON

v.The STATE.

A18A0758

Court of Appeals of Georgia.

June 21, 2018

Dawn Marie Belisle, for Appellant.

Paul L. Howard Jr., Atlanta, Francis McDonald Wakeford IV, for Appellee.

Reese, Judge.

A Fulton County jury found Charles Patterson guilty of two counts of armed robbery,¹ two counts of aggravated assault,² and one count of the possession of a firearm during the commission of a felony.³ He was sentenced to concurrent life sentences and a five-year consecutive sentence on the firearm charge. Following the denial of his motion for a new trial, he files this appeal, arguing that he was denied the effective assistance of counsel, that there was insufficient evidence to support his convictions, and that the trial court erred in denying his motion to suppress. For the reasons set forth, infra, we affirm.

Viewed in the light most favorable to the jury's verdict,⁴ the record shows the following. On August 5, 2007, Ashley Paige and Stephanie Clark, both sophomores at Clark Atlanta University, drove to a friend's townhome in Atlanta. Upon arrival, they parked in a lighted parking space across from the townhome, exited the vehicle, and began walking. A man ran up behind them with a gun, told them not to scream, and grabbed their purses, which contained their cell phones. The man waved the gun and told Paige to empty her pockets. After she turned her pockets inside out to show him they were empty, the man ran away.

Paige described the robber as a dark-skinned male with a small build, wearing a pulled-down "bucket hat" or "fisherman's hat." She only got a glimpse of his face and was later unable to identify the robber from a photo lineup.

Clark described the man as having dark skin with an unusual mark, she later identified as a tattoo on his forehead, wearing a black shirt and a "flipped up" bucket hat, and carrying a silver gun with a white handle. She testified that during the robbery, she continually focused on "his face and at the gun[, and] ... the picture of the person was just ingrained in [her] memory." Two weeks after the robbery, Clark identified the Appellant from a photo lineup on a computer screen and identified him again from a black and white paper photo lineup. She also identified him in court during the jury trial.

Clark testified that, after the robbery, she replaced her stolen cell phone, but kept her previous phone number. About 24 hours after the crime occurred, she received a phone call from a woman she did not know, later identified as Santana Hicks, who was looking for the Appellant. While speaking with Clark, Hicks described the Appellant's gun as "silver with a white handle[,]" and said that she had seen items that matched some of Clark's stolen items. Hicks told Clark she knew who had committed the robbery and referred to the robber as "Charles" and by his nickname, "Spade." After the conversation, Clark called the Atlanta Police Department detective assigned to the case, Detective Hood, and gave him Hicks' phone number.

A couple of weeks later, Clark had a second conversation with Hicks, the day before she viewed the photo lineups from the robbery. During that conversation, Hicks told her that the Appellant was on his way to Hicks' home and asked if Clark wanted to come and try to retrieve her belongings. Clark declined to go to Hicks' home, but she called Detective Hood and told him about the call. The Appellant was subsequently arrested near Hicks' home.

At trial, Hicks testified on behalf of the State and stated that the Appellant called her from Clark's phone number to speak to Hicks' sister, the mother of two of his children. When Hicks called the number back and spoke to Clark, she learned that Clark had been robbed. She asked Clark to describe the robber, and after hearing the description, Hicks told Clark "his name is Charles Patterson." Hicks testified that, during the same conversation, she told Clark that the Appellant had robbed two different women at an Applebee's restaurant using "a silver handgun[.]" When Hicks spoke to Detective Hood about the robbery involving Clark and Paige, he asked her to "come down and make a statement." Hicks testified that she called 911 and reported that the Appellant had stolen some items from her home.

Detective Hood testified that he initially spoke with Clark on August 13, 2007. The next day he conducted the photo lineups for both Paige and Clark.

The Appellant testified at trial that he and Hicks' sister did not get along well. He further testified that he and Hicks had a sexual encounter, unbeknownst to Hicks' sister, and Hicks did not like him. The Appellant denied robbing Paige and Clark, and testified that he received Clark's cell phone from a man named "Bicycle" in exchange for drugs.

The jury found the Appellant guilty of two counts of armed robbery, two counts of aggravated assault, and one count of possession of a firearm during the commission of a felony. He filed a motion for new trial. After a hearing, the trial court denied the Appellant's motion. This appeal followed.

Generally, on appeal from a criminal conviction, the appellate court

view[s] the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. [The reviewing court] determines whether the evidence is sufficient under the standard of Jackson v. Virginia ,⁵ and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, [the reviewing court] must uphold the jury's verdict.⁶

"The standard of Jackson v. Virginia, is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crimes charged."⁷ With these guiding principles in mind, we turn now to the Appellant's specific claims of error.

1. The Appellant argues that the trial court erred in denying his motion to suppress the photo lineup identification as impermissibly suggestive and in allowing Clark to make an in-court identification. We disagree.

Generally, in considering the admissibility of a pretrial identification, this Court first determines

whether the identification procedure was impermissibly suggestive. If the answer to that inquiry is negative, [the reviewing court] need not consider the second question—whether there was a substantial likelihood of irreparable misidentification. Conversely, [the reviewing court] may immediately proceed to the second question and, if the answer thereto is negative, [the reviewing court] may entirely pretermit the first question.⁸

Thus, even if the circumstances surrounding Clark's pretrial identification of him as the robber "rendered the showup impermissibly suggestive, the evidence is inadmissible only if[,] under the totality of the circumstances, there was a substantial likelihood of irreparable misidentification."⁹

The trial court denied the Appellant's motion to suppress, finding that Clark's pretrial identification of the Appellant, based on the evidence heard, "was not inherently suggestive and was of independent origin." During the motion to suppress hearing, Clark testified that, she had the opportunity to observe the robber at the scene of the crime and that during her conversation with Hicks, she gave Hicks "the exact descriptions of [the robber's] face and the tattoo[.]" Also, Clark stated that, although the paper version of the photo lineup did not clearly show the tattoo, "[the tattoo] was very evident [on the computer lineup] because the computer [photo lineup was] in color[,]" and she was "very certain" the person she identified in the lineup committed the robbery.

Based on the foregoing, under the totality of circumstances, we hold that there was little likelihood of misidentification of the Appellant by Clark and that the trial court did not err in denying the Appellant's motion to suppress.¹⁰

2. The Appellant argues that there was insufficient evidence to convict him of the armed robberies because there was no other evidence presented at trial that he committed the armed robberies,

and there was no physical evidence such as a weapon found on him when he was arrested. We disagree.

An individual commits armed robbery "when, with intent to commit theft, he or she 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."¹¹ The victim's testimony is generally sufficient to establish a fact.¹²

Here, Clark testified that she was able to identify the Appellant as the robber from the photo lineup because she kept looking at his face during the robbery. Clark's identification of him is direct evidence of his guilt.¹³ Therefore, the circumstantial evidence rule does not apply here.¹⁴ Also, Detective Hood testified that, after seeing the photo lineup on the computer, Clark identified the Appellant. Further, the Appellant admitted to possessing Clark's cell phone, and Hicks testified that he robbed two women at an Applebee's restaurant using a silver gun.

Although the Appellant argues, inter alia, that Clark did not possess "an independent recollection" of him, a "jury is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it."¹⁵ We conclude that the evidence presented was sufficient for a rational trier of fact to find the Appellant guilty of the armed robberies beyond a reasonable doubt.¹⁶

3. The Appellant contends that he received ineffective assistance of counsel because his trial counsel failed to object or ask for a mistrial

after Hicks testified and did not seek a motion in limine to limit Detective Hood's testimony. We disagree.

Generally, to prevail on a claim of ineffective assistance,

a

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