Singleton v. State

• Decision Date: 27 March 2014
• Docket Number: No. A13A1951.,A13A1951.
• Citation: 757 S.E.2d 211,326 Ga.App. 609
• Court: Georgia Court of Appeals
• Parties: SINGLETON v. The STATE.

326 Ga.App. 609

757 S.E.2d 211

SINGLETON

v.The STATE.

No. A13A1951.

Court of Appeals of Georgia.

March 27, 2014.

Brown & Gill, Angela Brown Dillon, for Appellant.

Frances C. Kuo, Asst. Dist. Atty., Tracy Graham–Lawson, Dist. Atty., for Appellee.

MILLER, Judge.

Following a jury trial, Leslie Howard Singleton was convicted of armed robbery (OCGA § 16–8–41(a) (2000)), two counts of aggravated assault (OCGA § 16–5–21(a)(1) (2000)), and possession of a firearm during the commission of a crime (OCGA § 16–11–106(b)(1) (2000)). Singleton appeals from the denial of his motion for new trial, contending that (1) the evidence was insufficient to support his convictions; (2) the trial court erred in admitting hearsay testimony in violation of his confrontation right, and in holding a witness in contempt in the presence of the jury; (3) the delay in hearing his motion for new trial and the trial court's failure to deem him indigent violated his due process rights; and (4) his trial counsel provided ineffective assistance. For the reasons that follow, we affirm.

Viewed in the light most favorable to Singleton's conviction and sentence, ¹ the evidenceshows that early in the morning of July 1, 2000, the victim, who is an investigator with the Fulton County Sheriff's Department, went to the Windjammer Apartments in Clayton County, Georgia to execute an arrest warrant. The victim, who was not in uniform, was carrying a black backpack which contained his service weapon—a 40 caliber Glock pistol—with extra clips, pepper spray, handcuffs, and a handcuff key. The victim's gun had the words “Fulton County Sheriff's Department” stamped on it.

When the victim arrived at the apartment complex, he drove around a couple of times until he located the apartment in question. The victim then backed into the farthest parking space, verified that he had the right apartment building, and exited his vehicle so he could confirm the apartment number. The victim threw his backpack over his shoulder and walked toward the apartments. When the victim reached the end of the corridor where the stairs were located, a young African American man came up a flight of stairs next to where the victim was standing. The young man was approximately 16 to 19 years old, was about 5'11? tall and weighed around 145 to 155 pounds. The young man wore a bandana mask and a backwards hat, and he came off the stairs with a chrome-plated revolver which he pointed at the victim's face.

The victim identified himself as a police officer, said he would give the young man whatever he wanted and then tossed his backpack to the young man. The victim then reached for his wallet, which was in his back pocket, and again said “I'm a police officer.” When the wallet came out of the victim's pocket, it opened up, causing his police badge to become visible. The young man then ran down the stairs with the backpack.

Later on that same day, Singleton met a friend, Ameisha Witt, at her home off of Riverdale Road. Witt's cousin was also at her house when Singleton arrived, and Singleton had the victim's gun. Singleton initially told Witt that he found the gun “in the woods.”

Later that day, Singleton met Witt again at Michael Waters's home. Witt's boyfriend, David Mierez, was also at Waters's home that day. When Singleton arrived, he still had the victim's gun with him. That night at Waters's home, Singleton told Witt that he got the victim's gun when he “robbed a cop” in Windjammer. Singleton also told Mierez that a man had thrown him the gun inside a backpack.

1. Singleton contends that the evidence was insufficient to support his convictions. We disagree.

A person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or immediate presence of another by use of an offensive weapon. OCGA 16–8–41(a) (2000). A person commits the offense of aggravated assault when he assaults with the intent to rob. OCGA 16–5–21(a)(1) (2000).

A person commits the offense of possession of a firearm during the commission of a felony when he has on or within arm's reach of his person a firearm during an armed robbery. OCGA § 16–11–106(b)(1) (2000). “Where a robbery is committed by the use of a firearm, separate convictions for armed robbery and possession of a firearm during the commission of a crime are specifically authorized by OCGA § 16–11–106(e).” (Citations and punctuation omitted.) Howze v. State, 201 Ga.App. 96, 97, 410 S.E.2d 323 (1991). Contrary to Singleton's contention, the evidence, as set forth above, was more than sufficient to support his convictions for armed robbery, aggravated assault and possession of a firearm during the commission of the armed robbery.

2. Singleton also contends that the trial court erred in admitting Waters's hearsay statement in violation of Singleton's confrontation right, and that the trial court erred in holding Waters in contempt in the presence of the jury. We discern no error.

At trial, the prosecution called Waters as a witness. When Waters told the trial judge that he did not want to testify, the State moved to hold Waters in contempt. The judge then held Waters in contempt of court, sentenced him to serve 30 days, and told the State to again ask Waters to be sworn in. The State asked Waters to swear in and testify three more times, and each time he refused. After each refusal, the Judge held Waters in contempt of court, and added 30 additional days to his sentence, resulting in a total sentence of 120 days for contempt. Although the jury was present during this entire exchange, Singleton did not object. Instead, Singleton moved for a mistrial after the judge told the State to call its next witness.

The trial court denied Singleton's motion for mistrial and, over his subsequent hearsay objections, allowed the State to call Fulton County Police Detective Frank Martin as a witness. Detective Martin testified that, on July 7, 2000, he spoke with Waters in the course of his official investigation in an unrelated case. Waters told Detective Martin that Singleton stole the victim's gun from a police officer during a robbery at the Windjammer Apartments in Clayton County.

a. Confrontation Right

The [C]onfrontation [C]lause imposes an absolute bar to admitting out-of-court statements in evidence when they are testimonial in nature, and when the defendant does not have an opportunity to cross-examine the declarant. ... [S]tatements made to police officers during an investigation qualify as testimonial.

(Citations and punctuation omitted.) Jackson v. State, 291 Ga. 22, 24(2), 727 S.E.2d 106 (2012). Although Singleton's trial occurred before the United States Supreme Court issued its opinion in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), we apply that decision retroactively to cases, such as Singleton's, which are pending on direct review. See Soto v. State, 285 Ga. 367, 369(2)(a), 677 S.E.2d 95 (2009).

Pretermitting whether Singleton waived this issue by failing to object on Sixth Amendment grounds,² any error in admission of Waters's statement was harmless. Notably, Waters's testimony was cumulative of other admissible testimony that the victim's gun was inside a backpack that was thrown to Singleton during the Windjammer robbery. See Miller v. State, 289 Ga. 854, 857(2), 717 S.E.2d 179 (2011) (admission of evidence in violation of confrontation right can be harmless error where evidence at issue is cumulative); Brown v. State, 288 Ga. 404, 408(3), 703 S.E.2d 624 (2010) (admission of hearsay was harmless error because hearsay was cumulative).

b. Holding Waters in contempt in the jury's presence.

“The decision to grant a mistrial is within the discretion of the trial court and will not be disturbed on appeal unless there is a showing that a mistrial is essential to the preservation of the right to a fair trial.” (Citation omitted.) Jackson v. State, 292 Ga. 685, 689(4), 740 S.E.2d 609 (2013). The trial court also has a wide latitude of discretion in controlling the examination of witnesses, and this Court will not reverse on appeal absent a manifest abuse of that discretion. See Sillah v. State, 291 Ga.App. 848, 849(1), 663 S.E.2d 274 (2008).

Singleton argues that the trial court's extended colloquy with Waters and the State created the impression that Waters was trying to protect Singleton and thus implied his guilt. Pretermitting whether Singleton waived this error by failing to make a contemporaneous objection, we find that under the specific circumstances of this case there was no reversible error, even though the better practice would have been to remove the jury from the courtroom before holding a witness in contempt. See Roberts v. State, 208 Ga.App. 628(1), 431 S.E.2d 434 (1993)(holding that recommended practice is to remove jury from courtroom while trial court holds witness in contempt).

Notably, Waters was called to the stand as a witness for the State. Therefore, the jury's knowledge that he was held in contempt for failing to testify was unlikely to give rise to any prejudicial inferences against Singleton. See Hendricks v. State, 283 Ga. 470, 473(3), 660 S.E.2d 365 (2008) (no prejudicial inference where trial court informed jury that State's witness refused to testify and was held in contempt). Moreover, the record shows that the State merely asked Waters to be sworn in, and never asked him any questions that suggested Singleton's guilt.³ Accordingly, under the circumstances of this case, Singleton has not shown that the trial court manifestly abused its discretion or that a mistrial was essential to the preservation of his right to a fair trial.

3. Singleton also contends that the more than 10–year delay in hearing his motion for new trial, and the trial court's error in failing to deem him indigent violated his due process rights.

a. The appellate delay did not violate Singleton's due process rights.

In determining whether an appellate delay...