Pitts v. State

• Decision Date: 30 August 2013
• Docket Number: No. A13A1424.,A13A1424.
• Citation: 323 Ga.App. 770,747 S.E.2d 699
• Parties: PITTS v. The STATE.
• Court: Georgia Court of Appeals

323 Ga.App. 770

747 S.E.2d 699

PITTS

v.The STATE.

No. A13A1424.

Court of Appeals of Georgia.

Aug. 9, 2013.

Reconsideration Denied Aug. 30, 2013.

Edwin J. Wilson, Augusta, for Appellant.

John Richard Edwards, D. Victor Reynolds, Marietta, Benjamin M. First, for Appellee.

BARNES, Presiding Judge.

A jury found Duranty Beuford Pitts guilty of two counts of armed robbery and one count of aggravated assault, and the trial court denied his motion for new trial. On appeal, Pitts contends that the trial court erred in denying his motion to exclude his in-court identification by two of the victims and in denying his motion to admit a statement of a third victim under the necessity exception to hearsay. Pitts further contends that his trial counsel rendered ineffective assistance by failing to object to certain remarks made by the prosecutor during closing argument. For the reasons discussed below, we affirm.

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict.” Anthony v. State, 317 Ga.App. 807, 732 S.E.2d 845 (2012). So viewed, the evidence showed that on September 8, 2010, three landscape workers were taking their lunch break on the grounds of the Pine Village North Apartments in Cobb County. Two young men, Andrew Hibbler and Torrance Wright, walked by the workers. Hibbler commented to Wright that they should rob them. To determine if the workers had any money, Hibbler approached them and asked for change for a twenty dollar bill. When the workers indicated that they had no money, Hibbler and Wright walked away.

Hibbler and Wright returned to the neighboring apartment complex, the Regency Square Apartments, where they lived. Although the landscape workers had told Hibbler that they had no money, Hibbler did not abandon his idea of robbing them. Instead, he spoke with Pitts, who also lived at Regency Square Apartments, before meeting back up with Wright. The three men then walked back to the Pine Village North Apartments where the landscape workers were having their lunch break. Pitts was carrying a semiautomatic handgun.

The landscape workers saw the three men approaching and that one of them was carrying a weapon. They ran and got inside their truck in an effort to escape. Pursuing the workers, Pitts ran to the driver's side of the truck and Hibbler ran to the passenger's side while Wright stood a short distance away as the lookout. Pitts pulled the driver out of the truck and threw him to the ground. Pitts pointed the handgun at the driver and demanded money. After the driver gave Pitts four dollars out of his wallet, Pitts turned his gun toward the other two workers and demanded money from them. One of them surrendered twenty dollars, but the other one refused to hand over any money. Pitts, Hibbler, and Wright then ran back to the Regency Square Apartments. Once in the apartment complex, Wright ran to his apartment, where Hibbler soon joined him, and Pitts ran off by himself.

Immediately after the robbery, one of the landscape workers, the driver, got back inside the truck and followed the robbers into the Regency Square Apartments. Another worker called 911 and informed the police where the robbers had fled. The police arrived shortly thereafter and successfully apprehended Wright and Hibbler in the former's apartment. Later that afternoon, Wright gave a statement to a detective in which he named Pitts as the third robber. Wright also told the detective where Pitts lived in the apartment complex. The detective arrested Pitts at his apartment the following day.

Hibbler, Wright, and Pitts were jointly indicted on two counts of armed robbery and one count of aggravated assault. Hibbler and Wright pled guilty to lesser offenses and testified on behalf of the State at Pitt's trial, and both identified Pitts as the gunman in the robbery. Although one of the landscape workers moved to Mexico after the robbery and thus was unavailable to testify, the remaining two workers testified regarding the robbery. One of the workers, the driver of the truck, was able to positively identify Pitts in the courtroom as one of the robbers, but the other worker testified that he did not “remember that well” the faces of the robbers. After hearing from these and other witnesses presented by the State,¹ the jury found Pitts guilty of the charged offenses. Pitts filed a motion for new trial, which the trial court denied, resulting in this appeal.

1. Pitts contends that the trial court erred in denying his motion in limine seeking to exclude his in-court identification by the two landscape workers. According to Pitts, his motion should have been granted because the police did not have the two workers participate in a pre-trial identification procedure. Pitts further argues that his motion should have been granted because the courtroom environment for the in-court identifications was too suggestive in that the workers believed that the gunman was African–American, and Pitts was the only African–American man sitting in the courtroom.

As an initial matter, it bears repeating that only one of the landscape workers positively identified Pitts in the courtroom as the gunman in the robbery. Hence, any error by the trial court in denying Pitts's motion in limine to exclude the in-court identification by the worker who ultimately was unable to identify him as one of the robbers clearly would be harmless. See Harley–Davidson Motor Co. v. Daniel, 244 Ga. 284, 286(1), n. 2, 260 S.E.2d 20 (1979) (“Obviously, if the evidence is never offered at trial, the denial of the motion in limine is harmless.”).

With respect to the landscape worker who positively identified Pitts in the courtroom, the trial court did not err in denying Pitts's motion to exclude. The Supreme Court of Georgia has held that “[a] line-up identification, or identification from a group of photographs, is not a prerequisite to every in-court identification,” Ralston v. State, 251 Ga. 682, 684(2), 309 S.E.2d 135 (1983), and this Court has specifically held that “the fact that the victim did not participate in a pre-trial identification [does not] render her in-court identification inadmissible.” Blige v. State, 205 Ga.App. 133, 135(4), 421 S.E.2d 547 (1992). See Price v. State, 159 Ga.App. 662, 663(1), 284 S.E.2d 676 (1981). It follows that the fact that the landscape worker did not participate in a pre-trial identification procedure before making his in-court identification of Pitts did not render the latter identification inadmissible.

We also must reject Pitts's argument that his motion to exclude should have been granted because he was the only African–American man sitting in the courtroom when the identification was made. The Supreme Court of Georgia and this Court have previously rejected this argument, and we are bound by that precedent. See Ralston, 251 Ga. at 684(2), 309 S.E.2d 135;Williams v. State, 174 Ga.App. 56(1), 329 S.E.2d 226 (1985); Mangrum v. State, 155 Ga.App. 334(1), 270 S.E.2d 874 (1980). An in-court identification “is subject to the same rules of evidence, witness credibility, and cross-examination as all testimony in a criminal trial,” Ralston, 251 Ga. at 683–684(2), 309 S.E.2d 135, and the problematic aspects of an in-court identification go to the identifying witness's credibility, which “is solely a question for jury determination.” Price, 159 Ga.App. at 664(1), 284 S.E.2d 676. Here, defense counsel cross-examined the landscape worker about the fact that Pitts was the only African–American man sitting in the courtroom, and thus counsel had an opportunity to test the credibility of the worker and call into question his in-court identification. Additionally, defense counsel raised the issue of the suggestiveness of the in-court identificationduring his closing argument, thereby calling the jury's attention to the matter. The trial court, therefore, committed no error in denying Pitts's motion to exclude the in-court identification of the landscape worker.²

2. Pitts also contends that the trial court erred in denying his motion to admit an out-of-court statement made by the landscape worker who was unavailable to testify at trial under the necessity exception to hearsay. The record reflects, however, that the trial court granted Pitts's motion to admit the out-of-court statement, which was later introduced at trial. Accordingly, Pitts's contention is without merit.

3. Lastly, Pitts contends that his trial counsel rendered ineffective assistance by failing to object to certain allegedly disparaging remarks made by the prosecutor during closing argument. To prevail on a claim of ineffective assistance under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), “[Pitts] must show that counsel's performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different.” (Citation and punctuation omitted.) Anthony v. State, 317 Ga.App. 807, 813(4), 732 S.E.2d 845 (2012).

The context of the prosecutor's remarks involved the following evidence. At trial, evidence was introduced that the police, while executing a search warrant, found a BB gun in the trunk of co-defendant Hibbler's car. A detective testified that the material on the BB gun would not hold fingerprints and therefore that he did not attempt to lift fingerprints from the BB gun. During closing argument, defense counsel argued that the lack of fingerprint analysis was a “failure of evidence” and suggested that it called into question whether Pitts was the gunman involved in the robbery. In the rebuttal portion of his closing argument, the prosecutor responded that fingerprint analysis on the BB gun would have simply shown that Hibbler owned the BB gun, as the jury already knew, and “wouldn't prove...