State v. Simmons

• Decision Date: 01 May 2013
• Docket Number: No. A13A0193.,A13A0193.
• Citation: 742 S.E.2d 505,321 Ga.App. 688
• Parties: The STATE v. SIMMONS et al.
• Court: Georgia Court of Appeals

321 Ga.App. 688

742 S.E.2d 505

The STATE

v.SIMMONS et al.

No. A13A0193.

Court of Appeals of Georgia.

May 1, 2013.

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

Kenneth Wade Muhammad, Kenneth D. Kondritzer, for Appellees.

DILLARD, Judge.

Following a jury trial, Corey Simmons and Samuel Johnson (collectively “defendants”) were convicted on two counts of armed robbery. Shortly thereafter, both filed motions for new trial based on newly discovered evidence, which the trial court granted. The State now appeals, arguing that the trial court erred in granting defendants a new trial because the newly discovered evidence was not material and was cumulative of other evidence. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury's verdict,¹ the evidence shows that some time between 12:00 a.m. and 1:00 a.m. on September 27, 2009, Derrick Arnold and Jason Barnes set out to meet some friends at a nightclub in the Midtown area of Atlanta. After parking their car near the intersection of Juniper Street and 7th Street, Arnold and Barnes began walking up 7th Street toward Peachtree Street (where the nightclub was located), when they were approached by three young men, who asked them about nightclubs in the area. Barnes answered their question while he and Arnold continued walking toward the club, and the three men continued walking in the opposite direction. However, a moment later, the three men came up behind Barnes, and one pushed him to the ground while another pulled out a handgun. The gunman then struck Barnes in the head with his gun and demanded that Arnold and Barnes give up any valuables. Arnold and Barnes complied, giving the perpetrators their wallets, watches, mobile phones, some jewelry, and Barnes's Nike Air Jordan sneakers. At that point, the three perpetrators fled, and Arnold and Barnes rushed toward the nightclub to seek assistance.

Upon reaching the nightclub, Arnold and Barnes informed their friends about the robbery and used one friend's mobile phone to call the police. The police arrived within five or ten minutes, and Arnold and Barnes provided information about the robbery, including a description of the three perpetrators. Specifically, they stated that the gunman was approximately six feet tall, 200 pounds, and dark-skinned; the man that pushed Barnes down was slightly taller, slimmer, brown-skinned, and wore his hair in either dreadlocks or braids but was also wearing a baseball cap; and the third man was shorter than the other two men and appeared significantly younger.

After the police concluded taking Arnold and Barnes's statements and left the nightclub, Barnes recalled that his stolen mobile phone contained an application that allowed the owner to log on to the mobile-phone company's website and track the phone via its global-positioning system. Consequently, Barnes and his friends contacted another friend, who was at home, and asked him to go online and attempt to track Barnes's phone. Within a few minutes that friend successfully located Barnes's phone and determined that the perpetrators had recently been to a gas station just a few blocks away from the Midtown nightclub but were now headed southbound on Interstate 85.

At that point, two of Arnold and Barnes's friends, who were with them at the nightclub, got in their car and began an attempt to follow the perpetrators based on directions provided by the third friend who continued to track the phone online. Eventually, they tracked the phone to a gas station in Riverdale, where they observed two men matching the perpetrators' description enter a gold Toyota Corolla with a Florida license plate. When the Corolla left the gas station, Arnold and Barnes's friends continued their pursuit but lost sight of the vehicle after getting caught at a red light. However, their friend tracking the phone by computer determined that the perpetrators' vehicle, after briefly heading west on Interstate 285, stopped again at a motel on Old National Highway in College Park. The pursuing friends arrived at the motel not long thereafter, saw the Corolla parked in the lot, but did not observe anyone in the vehicle at that time. A few minutes later, which by now was some time after 3:00 a.m., they found a College Park police officer and informed him of the robbery and their tracking of the perpetrators' vehicle.

The College Park police officer called for backup, and after the other officers arrived, they arrested William Phillips, who by that time was sitting in the Corolla, and Samuel Johnson, who was standing near the vehicle while talking on a mobile phone. Following these arrests, the police determined that both Phillips and Johnson had Florida driver's licenses, and in searching the Corolla, the police found Barnes's debit card, a mobile phone, and a pair of Nike Air Jordan sneakers. The police then directed one of the pursuing friends to call Arnold and Barnes's stolen mobile phones. And upon calling those respective numbers, a mobile phone found in the Corolla and another phone that was in Johnson's possession rang.

Not long after the arrests, Arnold and Barnes arrived on the scene and identified Phillips as the younger perpetrator and Johnson as the perpetrator with dreadlocks or braids, despite the fact that Johnson did not wear his hair in either dreadlocks or braids. And a few minutes later, as the police officers continued their investigation of the suspects and their vehicle, Arnold and Barnes observed another man casually approaching the police cars and recognized him as the dark-skinned man who brandished the handgun during the robbery. Consequently, officers arrested this third man, who was identified by his Florida driver's license as Corey Simmons, despite Simmons's protests that he had only come to the motel to retrieve a friend's car.

Simmons, Johnson, and Phillips were each charged, via the same indictment, with two counts of armed robbery.² Thereafter, Simmons and Johnson ³ were jointly tried, during which Arnold, Barnes, and their friends testified regarding the robbery and subsequent pursuit of the perpetrators by tracking Barnes's mobile phone. And although the Atlanta police officers involved in the investigation testified, none of the College Park officers involved in the arrests of Simmons and Johnson were called as witnesses.

As for the defense, Johnson called no witnesses on his behalf, but one of Simmons's friends testified that she, her brother, and Simmons went to a nightclub in East Point at approximately 11:30 on the night of the robbery in Midtown and that they stayed there until shortly before the club closed at 3:00 a.m. In addition, one of the East Point nightclub's security guards recalled Simmons arriving some time between 11:30 p.m. and 12:00 a.m. but conceded that he did not know what time Simmons left.

After the evidence was closed, the trial court charged the jury and directed the jury members to begin their deliberations. However, less than two hours later, at around 5:00 p.m., the trial court adjourned for the day and instructed the jury that it could continue deliberations the next morning. That morning, after the jury reconvened for its deliberations, Simmons's counsel informed the court that Simmons's mobile-phone company contacted his office late the previous day to inform him that records for Simmons's phone reflecting its usage on the night of the robbery—which the company previously claimed did not exist—had in fact been located. Simmons's counsel further explained that these records further corroborated Simmons's alibi that he was at the nightclub in East Point at the time the robbery occurred in Midtown. Accordingly, counsel requested a mistrial so that the newly discovered evidence could be introduced at retrial. However, the trial court was unwilling to halt the jury's deliberations and denied Simmons's request. And shortly thereafter, the jury found Simmons and Johnson guilty on both counts of armed robbery.

One month later, Simmons and Johnson filed separate motions for new trial, in which they both argued that the newly discovered mobile-phone records warranted a new trial. And during the ensuing hearing, Simmons's primary witness was a representative of his mobile-phone company. The representative first explained how the company's cell towers can determine the location from which a phone on the company's network is used and that this information, as well as the number called and time of the call, was retained by the company and kept in its records. The representative then provided detailed testimony about the records for Simmons's mobile phone on the night of the robbery, stating that at 6:33 p.m., the phone was used from a location in Douglasville, and at 9:09 p.m., it was used from a location in Riverdale. The representative further testified that at 12:09 a.m., 12:40 a.m., 12:58 a.m., 1:00 a.m., 1:59 a.m., and 2:52 a.m. Simmons's phone was used from a location in East Point. And at 3:06 a.m. and 3:10 a.m., it was used from a location in College Park off of Old National Highway. The representative also confirmed that his company initially erred when it informed Simmons's counsel that it did not keep records for the type of pre-paid mobile phone that Simmons owned.

In addition to the mobile-phone-company representative, Simmons's sister and his girlfriend testified that the mobile phone number in the admitted phone records was in fact what they knew to be Simmons's number and that on the night of the robbery, Simmons had been at their respective homes in Douglasville and Riverdale, as the records indicated. Simmons's sister also testified that Simmons called her after his arrest and asked her to retrieve his mobile phone from the College Park jail. Finally, Simmons introduced evidence indicating that the location of the nightclub that he claimed to have patronized around the time of the robbery corresponded...