Robinson v. State

• Decision Date: 16 March 2021
• Docket Number: A20A1900
• Citation: 856 S.E.2d 712,359 Ga.App. 38
• Court: Georgia Court of Appeals
• Parties: ROBINSON v. The STATE.

359 Ga.App. 38

856 S.E.2d 712

ROBINSON

v.The STATE.

A20A1900

Court of Appeals of Georgia.

March 16, 2021

James K. Luttrell, for appellant.

Ryan R. Leonard, District Attorney, Kaitlyn C. Fain, Assistant District Attorney, for appellee.

Doyle, Presiding Judge.

Following a jury trial, Javarris Mashod Robinson was convicted of felony obstruction of an officer and driving under the influence ("DUI less safe").¹ Following the denial of his amended motion for new trial,² Robinson filed this appeal. He argues that the trial court erred (1) by failing to charge the jury on the lesser included offense of misdemeanor obstruction; and (2) by admitting evidence of a prior burglary conviction for impeachment purposes. For the reasons that follow, we reverse.

1. Facts. Viewed in the light most favorable to the verdict,³ the record shows that in the early morning hours of December 31, 2016, a worker at a fast-food restaurant called 911 to report that a man was passed out in the driver's seat of a running vehicle in the restaurant's drive-thru lane and had been there for approximately 30 minutes. The worker reported that she and others had attempted to rouse the man, but they had been unable to do so.

The first officer responded to the scene, and he pulled his cruiser up behind the vehicle in which the driver, later determined to be Robinson, was passed out. The first officer's cruiser was equipped with a dash camera that recorded the interaction, which lasted approximately 20 minutes, and the recording was played for the jury ("the first video"). A second officer arrived at the scene approximately seven minutes into the incident, and his cruiser's dash camera video was also played for the jury ("the second video"). A third video of Robinson was taken while he was in custody in the back of the first officer's cruiser on the way to the jail, and it was also played for the jury ("the third video").

(a) First video. The first video showed that the first officer exited his vehicle and approached Robinson's car, squeezing between the vehicle and the restaurant wall to access the driver's side. The first officer repeatedly called to Robinson, telling him to wake up, banged on the roof of the car to make noise, and eventually reached into the car across Robinson, turned off the engine and removed the keys from the ignition. Robinson did not awaken until his cell phone rang, approximately three minutes after the first officer tried to rouse him, at which point the officer commanded him to put his hands on the steering wheel; when Robinson failed to obey, the officer ordered him to get out of the car, slamming the car door against the restaurant wall. In response to the first officer's commands to exit, Robinson repeatedly asked "for what," "for what," and the first officer explained that Robinson had been passed out for 30 minutes in the drive-thru, smelling like alcohol; Robinson did not seem to comprehend and, continued asking what he had done. Frustrated, the first officer stated that the interaction could go "one of two ways," and he did not want it to "get bad," again ordering Robinson to exit the vehicle. Robinson again asked to know what he had done, and after the officer explained the situation for a second time, Robinson received a phone call, told the caller where he was located, and finally stepped out of the car.

Rather than exiting to the back of his vehicle (and to the front of the cruiser) as directed by the first officer, Robinson walked around the front of his own car. Robinson responded to the first officer's repeated order to come to the back of the car, saying, "I don't have nothing to say to you," so the officer approached Robinson. Robinson stood still as the first officer approached, initially clutching cash in his left hand and holding his phone in his right, but then attempting to put the cash into his front pant pocket, at which point the officer yelled to get his hand away from his pocket. Robinson asked why he should not put his money away, and the first officer continued to approach, yelling commands, and Robinson put both hands above his head. Robinson slowly backed away from the first officer with his hands up as the officer continued forward and grabbed at Robinson, who said, "don't touch me." As Robinson backed away and the first officer continued toward him, the two moved in front of Robinson's vehicle, which obstructed the camera view; Robinson said, "hey man, watch out," and the first officer lunged toward him, appearing to wrap his arms around the back of Robinson's head. The camera view of the men was obstructed by the vehicle for approximately three to four seconds, although two seconds were captured in the second video. The first video showed the two men in a struggle, and then Robinson, who is heard saying "quit man, get off me," broke away from the first officer, backing up into full view of the cruiser camera again; the first officer returned to full view with his taser brandished at Robinson, walked toward him, and ordered him to "get down now."

While the obstructed portion of the confrontation occurred, a second police cruiser arrived in the parking lot, and the second officer quickly exited, yelling at the first officer, who was brandishing the taser, to "pop him." In response to the first officer's order to "get down," Robinson, who slowly backed away, yelled, "no bro, I ain't done nothing." The first officer again ordered Robinson to get down on the ground, tasing him. Robinson screamed and doubled over, and the second officer jumped on his back, slamming him to the ground, as Robinson cradled his arms to his chest, where the taser probes had hit him; the second officer pulled Robinson's right arm out, handcuffing him, as Robinson yelled, "get off me man, I ain't done sh-t to you bro, you got me f-cked up!" The first officer removed the taser probes from Robinson's chest and helped push him face down on the ground, aiming the front of the taser into Robinson's back. The second officer yelled at Robinson to give him "your other hand, now," and the first officer threatened Robinson that he was "about to get lit up again." Robinson repeatedly yelled "I ain't did sh-t to you, bro," and the second officer eventually cuffed Robinson's other hand; Robinson had not hit or kicked either officer.

Robinson was cuffed and lying face down on the pavement with the second officer still kneeling on him; Robinson attempted to roll back and forth, yelling at the second officer to "get the f-ck off me; don't touch me," while the officers searched his pockets, accusing him of having contraband. Robinson called the officers names, and they attempted to make him stand up, but Robinson lost his footing and fell back to the ground, with the second officer falling on top of him, slamming Robinson's head into the passenger side of his vehicle; immediately after Robinson's head hit the vehicle, the second officer yelled out that Robinson had grabbed his genitals. Robinson yelled that he had done no such thing, and the two officers continued to struggle to get Robinson to stand up and walk to the cruiser. Although the remainder of the interaction is off camera, the two officers eventually forced Robinson into the back seat of the first officer's cruiser.

(b) Second video. The second video consisted of scenery as the officer's vehicle quickly pulled into the parking lot, and approximately 12 seconds in, Robinson and the first officer appeared in the frame. Robinson was standing behind the first officer either with his arms secured by the officer or with his arms around the officer. The video does not show how the two men came to be in that position. Next, either the first officer pushed Robinson backward and away, or Robinson freed his arms from the officer's grip and stumbled backward; the first officer drew his taser, turned around, pointed it at Robinson, and the second officer yelled for the first to "pop him." Robinson did not make any throwing motion at any point during the four seconds the men were visible in the video. After that point, no more of the incident was visible, but audio of the second officer could be heard.

(c) Third video. The third video showed Robinson in the back of the first cruiser being transported to jail. Robinson's hands were cuffed behind him, and he moved around in the seat, but after the vehicle began moving, he passed out. The video did not show the entire ride, or Robinson's removal from the cruiser into the jail.

2. Testimony. (a) The first officer. The first officer testified that he received a call in the early morning hours of December 31, 2016, that an individual in a vehicle was passed out and blocking the drive-thru of a restaurant. The first officer testified that he was trained to recognize when an individual is impaired from drugs or alcohol (which he later observed Robinson to be), and upon approaching Robinson in the vehicle, he detected the smell of alcohol. Robinson was unresponsive and clutching money in his hand. The first officer noticed an empty bottle of liquor in the back seat of the vehicle and an empty beer can in the driver's door, and when Robinson eventually awoke, the officer intended to have him exit the vehicle and perform field sobriety tests. When Robinson exited the vehicle, the first officer noticed that he had blood shot watery eyes, had slurred speech, and leaned on the car, indicating to the officer that Robinson was intoxicated.

The first officer testified that Robinson disobeyed his commands to come to the back of the vehicle, so he approached Robinson at the front of the vehicle; as he attempted to physically direct Robinson to the front of the cruiser, Robinson "jerked his hand away" and said "don't touch me," which caused the first officer to attempt to detain Robinson. As he moved to detain Robinson, the officer said that Robinson "assumed what I — what I know to be a fighting stance. He lower[ed] his stance, put[ ] his arms up, says, [‘]man,...