Souder v. State

• Decision Date: 02 November 2009
• Docket Number: No. A09A1509.,A09A1509.
• Citation: 687 S.E.2d 594,301 Ga. App. 348
• Parties: SOUDER v. The STATE.
• Court: Georgia Court of Appeals

687 S.E.2d 594

301 Ga. App. 348

SOUDER v. The STATE.

No. A09A1509.

Court of Appeals of Georgia.

November 2, 2009.

Charles H. Frier, Smyrna, for appellant.

Paul L. Howard, Jr., Dist. Atty., Marc A. Mallon, Asst. Dist. Atty., for appellee.

BERNES, Judge.

Following a jury trial, Jacques Souder was convicted of hijacking a motor vehicle, OCGA § 16-5-44.1(b); armed robbery, OCGA § 16-8-41(a); possession of a firearm during the commission of a felony, OCGA § 16-11-106(b); and carrying a concealed weapon, OCGA § 16-11-126(a).¹ Souder appeals from the denial of his motion for new trial, contending that the trial court erred in denying his motion to suppress evidence seized at the time of his arrest, failing to merge the armed robbery and hijacking a motor vehicle counts in his sentence, and denying his motion for new trial based upon inconsistencies in the victim's testimony. He also contends that his trial counsel rendered ineffective assistance. For the reasons that follow, we affirm.

Viewed in the light most favorable to the jury's verdict,² the trial evidence shows that in the early morning of September 9, 2006, the victim and his grandmother were preparing for an out-of-town trip and drove their rented vehicle to a gas station to buy gas. The victim went inside to pay the cashier while his grandmother remained inside the car. When the victim returned, he saw Souder entering the car through the driver's door. The victim confronted Souder, and Souder pulled out a handgun. When the grandmother realized what was happening, she got out of the car. The victim was holding approximately $100 in his hand and Souder ordered him to throw the money on the ground. After the victim complied, Souder picked up the money, got into the car, and drove away from the scene. The victim later called 911 and reported the carjacking and armed robbery incident.

Several days later, Souder was seen driving the victim's stolen car and was reported to have collided with an unattended vehicle parked at an apartment complex. A City of Atlanta police officer was dispatched to the apartment complex to investigate the auto-mobile collision that had been described as a "hit-and-run." During the course of the investigation, the officer observed visible damage to the side of the vehicle that Souder had allegedly struck and obtained information from a witness who had observed the collision. The witness pointed to Souder, who was then sitting on the porch of a nearby apartment, as the driver of the vehicle that had caused the collision. The officer ran a routine computerized tag check of the vehicle that Souder allegedly had been driving and discovered that the vehicle had been reported as stolen. After a backup officer arrived at the scene, the officers approached and arrested Souder. During a search incident to arrest, the officers recovered a handgun from the inside of Souder's pants. The officers also recovered a set of keys found in Souder's pocket. When the officer discharged the remote on the car key, the alarm to the stolen vehicle sounded.

Following Souder's arrest, the investigating detective compiled a six-person photographic lineup that included Souder's photograph. The victim of the carjacking and armed robbery reviewed the lineup and identified Souder as the perpetrator of the crimes without hesitation. The victim also positively identified Souder as the perpetrator at trial. The victim claimed that he was able to recognize Souder since the incident occurred in a well-lit area and he had seen Souder around the neighborhood on previous occasions.

Souder was indicted, tried, and convicted of the criminal charges associated with the carjacking and armed robbery incident and the weapon charge associated with his arrest.

1. On appeal, Souder contends that the trial court erred in denying his motion to suppress the handgun and car key evidence seized from his person at the time of his arrest. He argues that the officers lacked probable cause to perform the warrantless arrest and search, and therefore, the evidence was required to be suppressed.

Upon review of a trial court's decision on a motion to suppress, we construe the evidence most favorably to uphold the trial court's findings and judgment. See James v. State, 265 Ga.App. 660, 660-661, 595 S.E.2d 359 (2004). The trial court's findings based upon conflicting evidence will be upheld if there is any evidence to support them, and its findings of fact and credibility determinations must be accepted unless clearly erroneous. Id. "Further, in reviewing the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial." (Citation and punctuation omitted.) Bowens v. State, 276 Ga.App. 520, 521, 623 S.E.2d 677 (2005). Here, the trial court denied Souder's motion to suppress, finding that the evidence was discovered during a search incident to a lawful arrest. Based upon the evidence submitted at the pretrial motion hearing and at trial, the trial court's finding was authorized.³

[A] warrantless arrest is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense.

(Citations omitted.) James, 265 Ga.App. at 661, 595 S.E.2d 359. See also OCGA § 17-4-20(a); Smith v. State, 188 Ga.App. 574, 575(1), 373 S.E.2d 800 (1988). "When dealing with probable cause—as the name implies, we deal with probabilities—not certainty, and the quantum of proof necessary to establish probable cause is not that level which is necessary for proof of guilt in a trial." Bradford v. State, 149 Ga.App. 839, 841, 256 S.E.2d 84 (1979). Moreover, an officer may testify to information that he obtained from others to explain his conduct and to provide a basis for making a warrantless arrest. See id. Information conveyed by witnesses in hearsay statements to the officer may serve as the foundation for probable cause. See id.; Cornelius v. State, 165 Ga.App. 794, 795, 302 S.E.2d 710 (1983).

In this case, the evidence established that prior to arresting Souder, the officer had obtained information from a witness that Souder had engaged in a "hit-and-run" incident by striking an unattended parked vehicle. This information authorized the officer to arrest Souder for failing to comply with his duty upon striking an unattended vehicle. See OCGA § 40-6-271(a);⁴ Smith, 188 Ga. App. at 575-576(1), 373 S.E.2d 800. "The subsequent search of [Souder's] person that yielded the [handgun and car keys] was valid as having been made pursuant to a lawful arrest." James, 265 Ga.App. at 662, 595 S.E.2d 359. See also Bradford, 149 Ga.App. at 841, 256 S.E.2d 84.

2. Souder further contends that his separate convictions for armed robbery and hijacking a motor vehicle violate the state and federal prohibitions against double jeopardy and, thus, the trial court should have merged these charges. We discern no error in the trial court's sentencing.

OCGA § 16-5-44.1(d) expressly provides: "The offense of hijacking a motor vehicle shall be considered a separate offense and shall not merge with any other offense...." This provision supersedes the statutory double jeopardy provisions of OCGA § 16-1-7 in motor vehicle hijacking cases. See Mathis v. State, 273 Ga. 508, 509-510(1), 543 S.E.2d 712 (2001); Dumas v. State, 283 Ga.App. 279, 281(2), 641 S.E.2d 271 (2007); Campbell v. State, 223 Ga.App. 484, 485(2), 477 S.E.2d 905 (1996). And, to the extent that Souder raises constitutional double jeopardy and equal protection challenges to the nonmerger sentencing provision, his challenges were untimely and thus were waived.⁵ "All challenges to the constitutionality of a statute must be raised at the first available opportunity." Lewis v. State, 279 Ga. 69, 70(2), 608 S.E.2d 602 (2005). "[A] constitutional attack on a criminal statute of this state cannot be raised for the first time in a motion for new trial." Shivers v. State, 261 Ga. 736(1)(b), 410 S.E.2d 122 (1991). Souder failed to raise his constitutional challenges at the first available opportunity during the sentencing hearing. Rather, his challenges were first raised in his amended motion for new trial. Because his challenges were untimely, they are not subject to review. See id.; Rutland v. State, 296 Ga.App. 471, 473(1), 675 S.E.2d 506 (2009); Williams v. State, 290 Ga.App. 829, 830-831(1), 661 S.E.2d 563 (2008). Compare Woods v. State, 279 Ga. 28, 28-29(1), 608 S.E.2d 631 (2005) (concluding that a constitutional challenge to a sentencing statute is timely if asserted after verdict, but prior to sentencing).

3. Souder also contends that the trial court erred in denying his motion for new trial in light of several inconsistencies in the victim's testimony. Again, we discern no error.

The weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems contradictory to his own or to some other's, or incomplete or uncertain, does not automatically discredit the evidence given by that witness, for it is the function of the triers of fact to determine to what evidence it gives credence. It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence. Rather, on appeal, we indulge every contingency in favor of the verdict.

(Citation and punctuation omitted.) Williams v. State, 236 Ga.App. 790, 792, 513 S.E.2d 757 (1999). And, although the trial court was empowered with the authority to grant a new trial after weighing the evidence in accordance with OCGA § 5-5-21,⁶ the trial court's refusal to grant the requested relief affords no basis for reversal. "The motion is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial on this...