Sorrells v. State
| Decision Date | 08 September 2014 |
| Docket Number | No. A13A1680.,A13A1680. |
| Citation | 755 S.E.2d 586,326 Ga.App. 888 |
| Court | Georgia Court of Appeals |
| Parties | SORRELLS v. The STATE. |
OPINION TEXT STARTS HERE
Lucy Gail Huggins, H. Bradford Morris, for Appellant.
James Bradley Smith, Dist. Atty., Samuel Elias Skelton, Asst. Dist. Atty., for Appellee.
As part of an ongoing narcotics investigation, police detectives working undercover with the aid of a confidential informant purchased cocaine from a man whom the detectives later identified as Eurieso Sorrells. Thereafter convicted for the sale of cocaine, Sorrells was given a 40–year recidivist sentence, and his motion for new trial was denied. In this appeal, Sorrells contends that the trial court erred by admitting evidence of one of the detectives' pretrial and in-court identifications of him and by rejecting his claim of ineffective assistance of trial counsel. Sorrells has demonstrated no merit in his challenge to the identification evidence, and thus no basis to disturb his judgment of conviction. For reasons that follow, we vacate the denial of Sorrells's motion for new trial and remand the case for proceedings not inconsistent with this opinion.
Evidence at the jury trial showed the following. On November 4, 2009, two police detectives and a confidential informant set out in the confidential informant's vehicle to make undercover street-side buys of narcotics. Their only such buy on that date—a twenty-dollar purchase of cocaine—occurred within a city's residential community at about 9:00 p.m. The state called the detectives, but not the confidential informant, to testify about what transpired at the scene.
Detective Chris Stapleton, who had been seated in the front passenger seat of the vehicle, recounted:
As we approached the [man] he approached our car from my side. He reached in the car to retrieve the money. The confidential informant was actually driving. I had already handed him the money. And the confidential informant passed the money to the [man]. The [man] passed a small plastic wrap with—a cornerbag, the corner of a plastic bag of powder cocaine to him. I asked the [man], you know, for a phone number or something, how could I get in touch with him if I wanted to buy some more. He just said his name was Black and he's always in that area. We drove off and I passed the, at that time, suspected[[[1 cocaine [to the detective seated in the back seat].
The man was not arrested that night, for reasons relating to the safety of the detectives and the confidential informant. Regarding the latter, the detectives sought to preserve the confidentiality of the informant's identity so as to protect him against possible retaliation. Additionally, the police sought to shield the informant's identity so as not to diminish the informant's usefulness in ongoing and future investigations.2
Stapleton testified that he had gotten “a very good, clear view” of the man, recounting that the area was illuminated by motor vehicle headlights, street lights, and porch lights and that the interior of the vehicle was illuminated further by dashboard lights. Stapleton testified that, by that point in the evening, his eyes had adjusted to the lighting conditions. Stapleton further described that “the transaction took place right in front of me,” recalling that “the man [had] actually reached into the car to [the] point his elbow passed the windowsill,” and estimating that the man's face was then about a foot and a half from his own. Stapleton had spoken with the man and made eye contact with him. As the detective reiterated,
Stapleton testified that, during the transaction, he recognized the man as a member of the community, but did not at the time know the man's name. Stapleton testified further that, after the detectives ended their street investigation and returned to the police station around midnight to 1:00 a.m., “[the backup detective] pulled up a picture of Mr. Sorrells and I looked at it and said, ‘Yes, that's the individual I just purchased cocaine from.’ ”
The backup detective, who had been seated in the back of the confidential informant's vehicle, gave a similar account of that night. He testified that his eyes had adjusted to the lighting conditions and that, while he had recognized the man's face, he could not then recall the man's name. Prior to that evening, the backup detective had seen that man in the area approximately 100 times.3 The backup detective recounted that he had been involved in approximately 300 drug investigations,during 200 of which he had acted in an undercover capacity. And during one eleven-month period, he had lived undercover in the area—buying drugs so as to gather intelligence concerning street-level drug dealers. The backup detective elaborated, “When I was undercover, I knew a lot of the street names of suspects.”
The backup detective testified that when Stapleton asked the man for contact information and the man responded that he was known in the area as “Black,” “it clicked on me who his name was.” The backup detective added, “I showed Detective Stapleton a picture of the suspect because, like I said, once he told me the street name I knew—I knew who it was.” On cross-examination, defense counsel asked the backup detective, “[W]hen you say you immediately identified Black as Eurieso Sorrells, is it fair to say then that his one and only street name is Black?” The backup detective answered,
A warrant for Sorrells's arrest was executed on January 28, 2010. And at Sorrells's trial held in June 2010, both detectives pointed to Sorrells as the man who had sold the cocaine.
Sorrells did not testify, but called two witnesses to support his defense of misidentification. Sorrells's first witness was his mother, who testified that Sorrells was inside her house from 5:30 p.m. on the night in question until about 10:00 the following morning. When asked about Sorrells's use of any aliases, she answered that Sorrells's nickname was “Boot,” which she had given him at birth, and that she had never known Sorrells to use the name “Black.”
Sorrells's second witness was an individual who had worked in the booking area at the local jail. That witness described how an arrested suspect's information was gathered and entered into the jail's computer system. Through that witness, Sorrells's attorney introduced numerous documents authenticated as the computer-generated arrest and booking reports for Sorrells. That witness explained that the documents provided spaces for an alias and testified that “Boot” was the only alias recorded on any of the documents.
1. Sorrells contends that the trial court erred by denying his motion in limine to exclude Stapleton's pretrial and trial identifications of him. He argues that the identification procedure—wherein the backup detective showed Stapleton a single photograph of him—was overly suggestive and created a substantial likelihood of misidentification.
“Convictions based on eyewitness identification at trial following a pretrial identification by photograph 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.” 4 Accordingly, even if a pretrial identification procedure is impermissibly suggestive,5 “the evidence is inadmissible only if under the totality of the circumstances, there was a substantial likelihood of irreparable misidentification.” 6 Factors to be considered include: “(1) a witness'[s] opportunity to view the accused at the time of the crime; (2) the witness'[s] degree of attention; (3) the accuracy of the witness'[s] prior description of accused; (4) the witness'[s] level of certainty at the confrontation; and (5) the length of time between the crime and the confrontation.” 7 Moreover, “[e]ven if a pretrial identification is tainted, an in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin.” 8 On review of a trial court's ruling on a motion to exclude an identification, “evidence is construed most favorably to uphold the findings and judgment and the trial court's findings on disputed facts and credibility must be accepted unless clearly erroneous.” 9
Sorrells points out that the drug transaction occurred at night and that the street-side encounter was brief. He asserts that, because the detectives had attempted to make other drug buys that night, Stapleton “could have confused the identification,” pointing out that Stapleton admittedly did not take any notes or otherwise record any physical description of the seller of the cocaine. Sorrells points out further that, prior to being shown the single photograph, Stapleton had given the backup detective no description of the seller.
Notwithstanding, we find no abuse of discretion in permitting evidence of the contested identifications. At the hearing on Sorrells's motion in limine, the state called Stapleton to testify. He recalled that the twenty-dollar purchase of cocaine had been their only street-side drug transaction on that date. He described that, while the transaction had occurred at night, the area was illuminated by street lights and vehicle headlights and that he had been riding in the car for sufficient time such that his eyes had adjusted to the lighting conditions. The exchange had taken “[t]hirty seconds to a minute,” during which time the seller had leaned down and toward his opened window, then reached across him which had brought the seller's face to within “[a] matter of inches” of his own. Stapleton testified that “it was not the kind of situation where you would avert your face,” explaining that the whole purpose for the encounter...
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