Riley v. State

• Decision Date: 21 July 2020
• Docket Number: A20A1376
• Citation: 846 S.E.2d 617,356 Ga.App. 290
• Parties: RILEY v. The STATE.
• Court: Georgia Court of Appeals

356 Ga.App. 290

846 S.E.2d 617

RILEY

v.The STATE.

A20A1376

Court of Appeals of Georgia.

July 21, 2020

Frost & Carey, Tyler A. P. Carey, for appellant.

Layla H. Zon, District Attorney, K. Nicole Roddenbery, Assistant District Attorney, for appellee.

Per Curiam.

A jury found Pierre Riley guilty of possession of tools for the commission of a crime, failure to maintain lane, and two counts of forgery of a financial transaction card. Riley appeals from the denial of his motion for a new trial, contending that: (i) the trial court erred when it denied his motion in limine to exclude certain evidence; (ii) the trial court improperly allowed the jury to view an audiovisual recording during deliberations; (iii) the State referred to facts not in evidence during closing argument; and (iv) the evidence was insufficient to support three of his convictions. Finding no error, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. Krauss v. State , 263 Ga. App. 488, 488 (1), 588 S.E.2d 239 (2003). So viewed, the evidence shows that, in January 2018, a sheriff's corporal pulled over a car driven by Riley, in which Antwon Watson was a passenger, after seeing the car weave across the road and fail to maintain its lane. Riley provided his driver's license, but Watson told the officer that he had no identification on him. Although the officer saw several debit cards in Watson's open wallet, Watson claimed that the cards did not have his name on them and quickly closed the wallet. The officer asked Watson for his name and date of birth; the information he provided "did not come back on file." Consequently, the officer attempted to ascertain Watson's identity with a portable fingerprint reader. During that time, Watson allowed the officer to examine his wallet, which no longer contained any debit cards.

After several attempts, the officer obtained a readable fingerprint from Watson, which revealed that the prior information he gave the officer was false. Around that time, a K-9 unit alerted to the presence of drugs in the car. During the ensuing search, officers found: (i) three or four debit cards in Watson's name in a driver's door pocket; (ii) another eleven debit cards, also in Watson's name, hidden under the cover for the car's fuse panel, which was in the driver's door jamb; (iii) a laptop computer and credit card reader/writer together in a bag in the back seat; and (iv) Watson's passport and small particles of marijuana in or near the area between the driver's seat and center console.¹ An officer testified that the reader/writer found with the laptop has the capability to reprogram the magnetic strips on several types of transaction cards. Moreover, the magnetic strips on the debit cards found in Riley's car had been altered, so that the magnetic data did not match the information embossed on the front of each card. Riley told officers that the laptop and bag belonged to him and that the cards hidden under the fuse panel cover had been there for a few days.

Officers also found, on the passenger side floorboard, ten prepaid $100 gift cards and receipts showing that the gift cards had been purchased with Visa cards in Athens approximately thirty minutes before the traffic stop. Most, if not all, of the altered debit cards found in Riley's car were Visa cards. And Riley told an officer during the traffic stop that he and Watson were coming from Athens.

Riley testified in his own defense, denying any knowledge of the debit card alterations. He testified that the laptop computer and cards found in his car belonged to Watson, that he mistakenly told an officer that the computer was his, and that he occasionally let Watson borrow his car.

The jury found Riley guilty of one count each of possession of tools for the commission of a crime and failure to maintain lane, and two counts of forgery of a financial transaction card. The trial court denied Riley's motion for a new trial, and this appeal followed.

1. Six days before his trial began – and more than nine months after he waived arraignment – Riley filed a motion in limine, seeking to bar the State from referring to or attempting to introduce at trial "[a]ny reference to" the items found in his car and his statements to officers, on the ground that the search that produced the evidence was unconstitutional. Riley contends on appeal that the trial court erred in denying the motion. We disagree.

In his appellate brief, Riley mischaracterizes his motion in limine by asserting that it sought to bar the introduction of the physical items found in his car. The motion did not seek to suppress those items; it rather sought to bar any argument or testimony regarding those items (and his ensuing statements to officers). See Walker v. State , 277 Ga. App. 485, 488 (3), 627 S.E.2d 54 (2006) (a motion to suppress under OCGA § 17-5-30 "applies only to suppression of tangible physical evidence," whereas "a pretrial motion in limine may be employed to seek a ruling on the admissibility of the testimonial evidence") (emphases supplied); see also generally Copeland v. State , 272 Ga. 816, 818 (2), 537 S.E.2d 78 (2000) ("Motions in limine do not replace motions to suppress or other specific kinds of pre-trial hearings in criminal cases.") (punctuation omitted); Fraser v. State , 283 Ga. App. 477, 480 (2), 642 S.E.2d 129 (2007) ("A defendant may not circumvent the requirement of a timely, written motion to suppress by couching his motion as a motion in limine."), overruled in part on other grounds by State v. Lane , 308 Ga. 10, 17 (1), 24 (Appendix), 838 S.E.2d 808, 815, 819 (2020).

Importantly, Riley did not file a timely motion to suppress any physical evidence in this case.² As a result, he "waived any right to claim that the underlying search which produced the physical evidence was unconstitutional," and he therefore "was not entitled to exclusion of testimony describing the physical evidence on the basis that the testimony was the fruit of an unconstitutional search." See Walker , 277 Ga. App. at 489 (3), 627 S.E.2d 54 ; see also Fraser , 283 Ga. App. at 480 (2), 642 S.E.2d 129 (by failing to file a timely motion to suppress, the defendant "failed to preserve his right to challenge the validity of the search, and he cannot circumvent the requirements [for filing a proper motion to suppress] by couching his motion as a motion in limine"). Moreover, in his motion in limine, Riley's sole challenge to the admissibility of his statements to officers was that those statements resulted from the allegedly unconstitutional search of his car. Thus, by waiving any claim that the search of his car was illegal, he necessarily waived any claim that his statements to officers should be suppressed due to the alleged illegality of the search. See generally Fraser , 283 Ga. App. at 480 (2), 642 S.E.2d 129 ; Walker , 277 Ga. App. at 489 (3), 627 S.E.2d 54. Consequently, the trial court did not err when it denied Riley's motion in limine.

2. At trial, the court admitted audiovisual recordings of the traffic stop, parts of which were played for the jury. At the jury's request, the trial court played part of one of the recordings for the jury again during deliberations, in open court, with the parties and trial judge present. Riley did not object at that time. He contends on appeal that playing the recording during deliberations violated the continuing witness rule. We disagree.

We generally review a trial court's ruling on a continuing witness rule objection for abuse of discretion. See McDaniel v. McDaniel , 288 Ga. 711, 717 (3) (a), 707 S.E.2d 60 (2011). Here, however, Riley did not make a contemporaneous objection. Therefore, to the extent that he has not waived appellate review of this claim, we review it only for plain error.³ Compare Jackson v. State , 252 Ga. App. 16, 16-17 (2), 555 S.E.2d 240 (2001) ("Issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.") (citation and punctuation omitted), with OCGA § 24-1-103 (d) (a court may take notice of "plain errors affecting substantial rights" concerning evidentiary rulings even absent a contemporaneous objection).

"To establish plain error, [an a]ppellant must identify an error that was not affirmatively waived, was clear and not open to reasonable dispute, likely affected the outcome of the proceeding, and seriously affected the fairness, integrity, or public reputation of judicial proceedings." Thompson v. State , 304 Ga. 146, 151 (6), 816 S.E.2d 646 (2018) ; accord Roberts v. State , 305 Ga. 257, 263 (4), 824 S.E.2d 326 (2019). Under the continuing-witness rule, "it is error to allow a jury to take written or recorded statements into the jury room during deliberations unless those statements are consistent with the defendant's theory of the case." Ross v. State , 344 Ga. App. 477, 479 (2), 810 S.E.2d 645 (2018) (citation and punctuation omitted). The continuing witness rule does not apply where, as here, an audiovisual recording "was replayed to the jury a single time in a controlled environment, the courtroom, with all parties and the trial judge present." Lopez v. State , 291 Ga. App. 210, 214 (3), 661 S.E.2d 618 (2008) (citation and punctuation omitted); accord Clark v. State , 296 Ga. 543, 548-549 (4), 769 S.E.2d 376 (2015) (the continuing witness rule "has no application to the replaying of recorded statements during the examination of witnesses, during closing arguments, or in the courtroom at the jury's request during deliberations"). Consequently, the trial court did not err, plainly or otherwise.

3. During closing arguments, the State briefly began to...