Ray v. State

• Decision Date: 11 October 2016
• Docket Number: A16A1178,A16A1091,A16A1126
• Citation: 338 Ga.App. 822,792 S.E.2d 421
• Parties: RAY v. The STATE. Randell v. The State. Brown v. The State.
• Court: Georgia Court of Appeals

338 Ga.App. 822

792 S.E.2d 421

RAY

v.The STATE.

Randell

v.The State.

Brown

v.The State.

A16A1091

A16A1126

A16A1178

Court of Appeals of Georgia.

October 11, 2016

The Leslie Group, Deborah L. Leslie, Jonesboro, for appellant(case no. A16A1091).

Darrell B. Reynolds, Sr., for appellant(case no. A16A1126).

Bruce S. Harvey, Jennifer S. Hanson, for appellant(case no. A16A1178).

Tracy Graham Lawson, District Attorney, Elizabeth A. Baker, John E. Fowler, Travis J. Meyer, Assistant District Attorneys, for appellee.

Doyle, Chief Judge.

Danterrell Dandre Ray, Alex Donavon Randell, and Shakrystin Brinae Brown were each convicted of multiple offenses based on an armed robbery of a restaurant and its occupants.They were indicted and tried jointly, and we have consolidated their appeals for review.

In Case No. A16A1091, Ray appeals from his convictions on 43 counts (some of which merged for sentencing) including multiple counts of armed robbery,¹ kidnapping,² false imprisonment,³ aggravated assault,⁴ possession of a weapon during the commission of a crime,⁵ pointing a pistol at another,⁶ and theft by taking.⁷Following the denial of his motion for new trial, Ray contends that the trial court erred because (1) the evidence was insufficient to support the guilty verdict; (2)the trial court failed to sever the trial or exclude post-arrest statements made by his co-defendants; and (3)he received ineffective assistance of counsel.

In Case No. A16A1126, Randell appeals from his convictions on 43 counts for the same offenses, some of which also merged at sentencing.Randell challenges the denial of his motion for new trial on the grounds that (1) the evidence was insufficient to support the guilty verdict; (2)he received ineffective assistance of counsel; (3)the trial court failed to sever the trial; and (4)the trial court erroneously allowed the State to ask leading questions.

Finally, in Case No. A16A1178, Brown appeals from her convictions on 43 counts for the same offenses, some of which also merged at sentencing.Brown challenges the denial of her motion for new trial on the grounds that (1) the sentencing scheme for armed robbery is unconstitutional on its face and as applied to her under Apprendi v. New Jersey ;⁸(2) the elements of knowledge and intent were not properly charged nor was the evidence sufficient under Rosemond v. United States ;⁹ and (3) the evidence was insufficient to support the guilty verdict.

For the reasons that follow, we affirm the convictions in each case.

We begin with a general overview of the evidence presented at their joint trial.Construed in favor of the verdicts,¹⁰ the evidence shows that in June 2012, Jonathan Hammonds visited Ahkeem Simmons's apartment and told Simmons about a robbery that Hammonds was planning with Ray.Hammonds expected the robbery to yield $70,000.A few days later, Hammonds, Ray, and Randell came by Simmons's apartment, and Ray asked Simmons to participate in the robbery.Ray explained that Brown was a hostess at the restaurant, and she had told him that the security cameras did not work and had given him the location of the manager's office where a substantial amount of cash would be stored.Ray asked Simmons to drive the getaway car, and Simmons agreed.

As the restaurant's midnight closing time approached, Simmons drove Ray, Randell, and Hammonds to the restaurant.They waited for Brown to call from within the restaurant to tell them when the customers had left.As Brown completed her closing duties, she ensured that the deadbolt on the front door remained unlocked.At the appropriate time, Ray, Randell, and Hammonds parked at the restaurant and exited their vehicle, all wearing black clothing and masks, with Ray carrying a backpack.Two other friends, Brittany Patterson and Jazmine Washington, had driven to the restaurant and parked outside to act as lookouts and to follow the getaway car to screen it from police.

Ray, Randell, and Hammonds entered the restaurant through the front door, and one pointed a gun at two workers, telling everyone to get down.The bartender secretly tripped the silent alarm as she lay down, and one of the robbers stole $150 in cash and a cell phone from her at gunpoint.Another gunman tied up an employee with zip ties or duct tape and took his wallet at gunpoint.A gunman also stole money and a cell phone from another employee at gunpoint.

A third gunman went to the manager's office and pointed a gun at the manager.He forced her to open the safe, and he took the cash box located inside, also taking the money in the manager's purse and in the cash register.The gunman put all the stolen money into a backpack he carried.The gunman then ordered the manager at gunpoint to move from the office to the restaurant floor where the other employees were located.Also in the course of the robbery, the dishwasher was moved at gunpoint from the dishwashing area to the bar area floor, and his wallet was stolen by a robber.Brown, who still was present, was not robbed.

Ray, Randell, and Hammonds then left the restaurant and fled in the waiting cars driven by Simmons and Washington.As they drove to Simmons's apartment, Randell threw a stolen cell phone out of the window to avoid being tracked by police, and Ray threw a second stolen cell phone into the woods upon arrival.With the help of the phone's owner, police later tracked the second phone's location to the area of Simmons's apartment.

Everyone from the two cars gathered inside Simmons's apartment to count the money from the robbery.They were disappointed to find that instead of the $70,000 they expected, they had only stolen about $1,900.They divided the money among Simmons, Ray, Randell, Hammonds, Patterson, and Washington.

After investigating the crime scene and interviewing witnesses, police learned that Brown had left the front door unlocked and subpoenaed her cell phone records.Those records eventually led to an interview with Patterson, who had been in one of the vehicles during the robbery and who identified each of the perpetrators involved.Washington also confirmed the same information to police.After searching the vehicle driven by Simmons, police found a mask and bandana.

In a 52–count indictment, Brown, Randell, Simmons, Patterson, Washington, Hammonds, and Ray were accused of committing multiple offenses against multiple victims during their roles in the robbery.Ray unsuccessfully moved to sever his trial, and after declining plea offers, the defendants were tried jointly before a jury.The trial court directed not guilty verdicts as to seven counts, and the jury returned guilty verdicts on the remaining counts.The trial court denied each defendant's motion for new trial, giving rise to these appeals.

Case No. A16A1091

1.Ray contends that the evidence was insufficient to support the guilty verdict as to certain counts.

(a)Kidnapping .Ray first challenges two kidnapping counts.Citing Garza v. State ,¹¹ Ray argues that the evidence failed to sufficiently demonstrate the asportation element of kidnapping as to the manager and the dishwasher.We disagree.

Decided in 2008, Garza addressed the elements of kidnapping:

A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.Under [then] current Georgia jurisprudence, the element of "abducting or stealing away" the victim, known in legal parlance as "asportation,"[could] be established by proof of movement of the victim, however slight.¹²

Garza abandoned the "slightness" threshold and instead adopted a four-part test to distinguish a kidnapping from an incidental part of another offense such as a robbery.¹³

Nevertheless, " Garza has been superseded by statute for offenses occurring after July 1, 2009,"¹⁴ such as the ones here, which occurred in 2012.The current and applicable statute reads as follows, in relevant part:

(a) A person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.

(b)(1) For the offense of kidnapping to occur, slight movement shall be sufficient; provided, however, that any such slight movement of another person which occurs while in the commission of any other offense shall not constitute the offense of kidnapping if such movement is merely incidental to such other offense.

(2)Movement shall not be considered merely incidental to another offense if it: (A) Conceals or isolates the victim; (B) Makes the commission of the other offense substantially easier; (C) Lessens the risk of detection; or (D) Is for the purpose of avoiding apprehension ....¹⁵

The dishwasher was moved at gunpoint from the dishwashing area to the front of the restaurant and ordered to lie down on the floor.Similarly, the manager was moved at gunpoint from the manager's office to the front of the restaurant and ordered to lie down on the floor.These movements were not merely incidental to the armed robbery because they made the completion of the armed robbery substantially easier by consolidating all of the restaurant occupants into one area and enhancing the perpetrators' control over the victims, thereby lessening the risk of detection and apprehension due to a victim's flight or attempt to contact police.Under these circumstances, and according to the applicable statutory definition of kidnapping, the evidence sufficed to support the kidnapping offenses as to the manager and the dishwasher.¹⁶

(b)False Imprisonment of C.G. Ray also contends that the State failed to prove that he falsely imprisoned a certain victim, C.G., arguing that there was no evidence that the victim was confined or detained against his will.Under OCGA § 16–5–41 (a)"[a] person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority."Ray's argument...