Robinson v. State, A93A0852

• Decision Date: 07 April 1993
• Docket Number: No. A93A0852,A93A0852
• Citation: 208 Ga.App. 528,430 S.E.2d 830
• Parties: ROBINSON v. The STATE.
• Court: Georgia Court of Appeals

Page 830

430 S.E.2d 830

208 Ga.App. 528

ROBINSON v. The STATE.

No. A93A0852.

Court of Appeals of Georgia.

April 7, 1993.

Reconsideration Denied April 22, 1993.

Certiorari Denied Oct. 12, 1993.

J.M. Raffauf, Alden W. Snead, for appellant.

David McDade, Dist. Atty., William H. McClain, Asst. Dist. Atty., for appellee.

McMURRAY, Presiding Judge.

Via indictment, the State accused appellants Antonio Demetrius Robinson, Roy Cardo Livermore and Makeba Ceylon Robinson of, inter alia, armed robbery (Count 1), aggravated assault (Count 2), and two counts of kidnapping (Counts 3 and 4). In addition, the State charged Livermore in Count 5 and appellant in Count 6 with possession of a firearm during the commission of a crime. In that regard, the State alleged that during the commission of an armed robbery, Livermore had on his person a .38 caliber revolver and appellant had on his person a .22 caliber revolver. Livermore and Makeba Robinson pleaded guilty to armed robbery; appellant pleaded not guilty and was tried by a jury of his peers. The jury found appellant guilty of armed robbery, aggravated assault and possession of a firearm during the commission of a crime; it found appellant not guilty of kidnapping. The trial court sentenced appellant to a total of 25 years confinement (to serve 5 years) and he moved for a new trial. The trial court denied appellant's motion for a new trial and this appeal followed. Held:

1. Viewing the evidence in a light favorable to the State, as we are bound to do, we find the following: On the night in question, appellant, Livermore and appellant's cousin, Makeba Robinson talked about pulling off a robbery. Early in the morning, at approximately 2:00 a.m., appellant, Livermore, and appellant's cousin went to the Golden Gallon convenience store. Livermore and appellant entered the store. Livermore held a gun on the clerk and demanded money while appellant stood "lookout" at the door. The clerk handed the money over and Livermore and appellant ran out of the door. Once outside, the duo encountered a customer and Livermore aimed a gun at his face.

Within minutes of the robbery, a deputy sheriff (who was in the vicinity of the convenience store) was advised to be on the lookout for two black males (one of whom was dressed in a red shirt) who had just robbed the convenience store. Within seconds, the deputy spotted a car with three black males coming from the direction of the convenience store. When the deputy turned his vehicle around, the car started to accelerate. It "eventually" stopped and two black males, one of whom wore a red shirt, emerged. The deputy ordered the driver out of the car and he complied. Other officers arrived in short order. One of them searched the getaway car and found a money bag and a .22 caliber pistol under the seats. A .38 caliber pistol was found the next day in a yard adjoining the scene of the arrest.

In his first enumeration of error, appellant asserts the evidence was insufficient to support his conviction. In this regard, he argues that there was no evidence that he used a gun in the robbery or that he knew a gun would be used by Livermore. This assertion is without merit. The State's evidence was sufficient to authorize the jury to conclude that appellant aided and abetted in the commission of the armed robbery and was a party to the crime. Robinson v. State, 173 Ga.App. 502, 326 S.E.2d 599; Stevens v. State, 158 Ga.App. 656(1), 281 S.E.2d 629.

2. Appellant contends in his second enumeration of error, the trial court erred in refusing to grant a motion to suppress (1) evidence seized from the getaway car, (2) appellant's statement and (3) the victims' identification testimony. We disagree.

A motion to suppress is to be aimed at tangible evidence, not confessions or identification testimony. See OCGA § 17-5-30; Martin v. State, 201 Ga.App. 643, 644(1), 411 S.E.2d 788. Thus, it cannot be said that the trial court erred in failing to grant a motion to suppress appellant's statements and the identification testimony. Jarrell v. State, 234 Ga. 410, 416(3), 216 S.E.2d 258. (We note, additionally, that the trial court reserved its ruling with regard to non-tangible evidence until the time of trial and that appellant did not object to the identification evidence when it was offered at trial. Thus, appellant waived his right to raise the admissibility of the identification evidence on appeal. Baxter v. State, 188 Ga.App. 598, 600(3), 373 S.E.2d 834.)

With regard to the evidence seized from the getaway car, it is clear that appellant, a mere passenger in the car, does not have standing to challenge the legality of the seizure. Morgan v. State, 195 Ga.App. 732, 394 S.E.2d 639. It follows that the trial...