Rutland v. State
| Decision Date | 05 March 2009 |
| Docket Number | No. A08A2372.,A08A2372. |
| Citation | 675 S.E.2d 506,296 Ga. App. 471 |
| Parties | RUTLAND v. The STATE. |
| Court | Georgia Court of Appeals |
Brandon A. Bullard, Richard A. Waller Jr., for appellant.
Howard Z. Simms, District Attorney, Dorothy V. Hull, Assistant District Attorney, for appellee.
Shawn Rutland was convicted of armed robbery, hijacking a motor vehicle, and aggravated assault. Rutland appeals from the trial court's denial of his motion for new trial, challenging the constitutionality of the nonmerger provision in the hijacking a motor vehicle statute, OCGA § 16-5-44.1(d). He also contends that the trial court erred in denying his motion to suppress the pretrial identification evidence and that the trial court applied an incorrect standard of review in considering his challenge to the weight of the evidence. As explained below, Rutland's constitutional challenge has been waived. We affirm the trial court's denial of Rutland's motion to suppress. However, we vacate the trial court's determination of the challenge to the weight of the evidence and remand this case for the trial court's further consideration of this claim.
"On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict in accordance with the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)." Price v. State, 289 Ga.App. 763(1), 658 S.E.2d 382 (2008). So viewed, the evidence showed that at approximately 2:30 in the afternoon, the victim drove his car to an apartment complex to visit a friend. As the victim was leaving his friend's apartment, the victim remotely started his car. He then observed Rutland rush forward and get into his car. The victim ran up to the car and confronted Rutland. During the confrontation, Rutland showed the victim his gun and said, "this is a jack move," after which the victim retreated. Rutland attempted to drive away, but the car's kill switch activated and automatically shut off power to the car.
Rutland got out of the car and demanded the victim's car keys. The victim spent several minutes trying to convince Rutland not to steal his car, but Rutland continued to demand the keys. Eventually, Rutland cocked the gun and told the victim, "I'm not fixing to do anymore talking." Rutland then hit the victim in his head with the gun, and the gun discharged. Rutland continued pulling the trigger of the gun and shot the victim several times. The victim surrendered the keys to Rutland, and Rutland drove away in the victim's car. The victim sustained multiple gunshot wounds and life-threatening injuries and was later rushed to a hospital for medical treatment.
While investigating the hijacking, detectives received information linking Rutland, also known as "Pooh," to the crimes. Although the detectives were unable to find any recent photos of Rutland, they obtained a prior photo taken three years earlier when Rutland was in juvenile detention. The detectives interviewed Rutland's ex-girlfriend. She viewed the photo and identified Rutland as being the person depicted in the photo, but informed the detectives that Rutland's appearance had changed. She explained that Rutland had longer hair with "twisty braids" and had facial hair.
The detectives created a photographic lineup, including Rutland's photo as a potential suspect. Approximately one week after the hijacking, the detectives went to the hospital to obtain the victim's statement and to show him the lineup. After reviewing the lineup, the victim picked Rutland's photo without hesitation. The victim noted, however, that Rutland's hair was different at the time of the incident, noting that Rutland was not well-groomed, had "more knotty hair" with "little twist braids," and had "wolfy-like" untrimmed facial hair.
A few weeks later, Rutland was arrested. His appearance at that time was consistent with the victim's description. The victim again identified Rutland at trial as the perpetrator of the crimes. The victim stated that there was "[n]ot a doubt in [his] mind" about his identification of Rutland since he was able to get a good look at Rutland during the commission of the crimes.
Following the presentation of the evidence at trial, the jury found Rutland guilty of the crimes charged.
1. In his first enumeration of error, Rutland challenges the constitutionality of the nonmerger provision of the hijacking a
motor vehicle statute, OCGA § 16-5-44.1(d). Rutland initially filed this appeal in the Supreme Court of Georgia based on his constitutional challenge to the statute,1 but the Supreme Court determined that its jurisdiction had not been invoked since Rutland's constitutional challenge was untimely and thus had been waived. The appeal was then transferred to this court.
"[T]he Supreme Court's determination in the transfer order is final and binding." Wilson v. State, 279 Ga.App. 459, 461(1), 631 S.E.2d 391 (2006). Rutland's constitutional challenge has been waived and consequently is not subject to appellate review.
2. Rutland contends that the photographic lineup shown to the victim was impermissibly suggestive and that the trial court therefore erred in denying his motion to suppress the identification evidence. We discern no error.
Unless the evidence demands a finding contrary to a judge's determination, we will not reverse a ruling denying a motion to suppress. Additionally, convictions based on a pretrial identification by photograph and a subsequent identification at trial will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. A court need not consider whether there was a substantial likelihood for misidentification if it finds that the identification procedure was not impermissibly suggestive. An identification procedure becomes impermissibly suggestive when it leads the witness to an all but inevitable identification of the defendant as the perpetrator, or is the equivalent of the authorities telling the witness, "This is our suspect."
(Citations and punctuation omitted.) Jackson v. State, 288 Ga.App. 339, 345(3), 654 S.E.2d 137 (2007).
Rutland argues that the photographic lineup procedure was impermissibly suggestive because the detective initially showed the victim a single photo and then showed the victim the final photographic lineup, which included a distorted version of his photo that stood out in the array.
However, the evidence adduced at the motion hearing and at trial2 refuted Rutland's claims. The detective testified that he had never shown the victim a single photo for his identification. Although a transcript of the victim's pretrial interview reflects that the detective had stated that he was going to show the victim "a picture," the detective explained that he had made a misstatement and confirmed that he had instead shown the victim the full photographic lineup composed of six pictures as identified in the state's exhibit. Furthermore, the detective and the victim both identified the full photographic lineup and testified that it was the only display that had been shown to the victim during the pretrial identification procedure.
The detective further testified to the procedure used to create the lineup. In addition to Rutland's photo, the lineup included photos of five other males of the same race and approximate age, and having similar facial features and hairstyle. Because Rutland's original photo was smaller than the others in the array, the detective used a computerized process to enlarge it to match the size of the other photos. Enlargement of the photo made it less sharp, and therefore, the detective produced the lineup in black and white to provide more uniformity in the color, quality, and background of the photos.
While showing the lineup to the victim, the detective made no suggestion that the perpetrator was depicted in one of the six photos shown. The victim was shown the same lineup on two occasions, once while he was in the hospital and during a subsequent interview after he had been released from the hospital. He identified Rutland without hesitation on both occasions.
Based upon this evidence, the identification procedure in this case was not impermissibly suggestive. See Jackson, 288 Ga.App. at 345(3), 654 S.E.2d 137.
But, even if we were to assume arguendo that the lineup was suggestive, we nevertheless conclude that there was not a substantial...
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