The State v. Smith.
| Decision Date | 10 March 2011 |
| Docket Number | No. A10A1655.,A10A1655. |
| Parties | The STATEv.SMITH. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Paul L. Howard Jr. Atlanta, and Bettieanne C. Hart, for The State.Arthurlyn Combs–Hixson, for Elvis Smith.DILLARD, Judge.
Elvis Smith was indicted on one count of robbery by force 1 AND ONE COUNT OF KIDnapping,2 BASED ON HIS ALLEGED participation in the hijacking of an automobile and the abduction of one of its occupants. Thereafter, Smith moved to suppress evidence that the victims identified him from photographic lineups and to preclude the same victims from identifying him at trial. Without holding an evidentiary hearing, the trial court granted Smith's motion, finding that the State failed to proffer any evidence to support the admissibility of the identifications despite being given an adequate opportunity to do so. The State appeals, arguing that the trial court erred in granting Smith's motion to suppress the photographic and in-court identifications without first holding an evidentiary hearing. For the reasons set forth infra, we vacate the trial court's order granting Smith's motion to suppress, and remand the case for additional proceedings consistent with this opinion.
Here, the evidence shows that in the early morning hours of July 27, 2007, police responded to a report of an automobile hijacking and kidnapping in downtown Atlanta. Upon arriving at the scene, the police spoke with a young male, who claimed that after leaving a nightclub, he and his sister were followed to their car by three African–American males—two of whom were later identified as Corey Lakes and Elvis Smith. And before the siblings could drive away, Smith allegedly climbed into the passenger seat of the car on top of the driver's sister and refused to exit the vehicle. According to the brother, he then got out of the car and attempted to remove Smith from the vehicle; but as he did, Lakes jumped into the now vacant driver's seat and drove away with his sister and Smith still in the automobile. Within a few hours, the driver's sister called police on her cell phone after being released by her captors on a dirt road several miles away from the scene of the hijacking. She reported to the police that Lakes had forced her to withdraw money from several ATMs and raped her.
Shortly thereafter, police spotted the stolen car in another part of town. After a brief high-speed chase, the police forced the car to stop and arrested Lakes, who was driving the vehicle, and Smith. A few days later, the victims met with police to view a photographic lineup of possible suspects, and both of them identified Lakes and Smith as the men who hijacked their vehicle.
On January 29, 2008, Smith moved to suppress the photographic-lineup identifications and any in-court identifications. The matter then came up for a hearing on November 17, 2009, at which time the prosecutor for the State claimed that Smith's motion had not been properly served on her office, and she was, therefore, not prepared to argue against it. Smith's counsel countered that she had properly served the prosecutor's office with the motion,3 and then requested that the trial court either dismiss the indictment or grant the motion. The trial court advised Smith's counsel that while it could not dismiss the case, it could grant the motion to suppress. In response, the prosecutor requested that the trial court not grant the motion to suppress, noting:
It's an evidentiary motion. Had I been aware of having been served with that motion, then I would have subpoenaed the victim. I have spoken to the victim. The victim is local. Her brother, who was with her at the time, is not local. He resides out of state. But the victim of the alleged kidnapping and robbery in this case is a local victim and I would have subpoenaed her to have been here.At the conclusion of the hearing, the trial court issued no ruling, but stated that it would take the matter under advisement.
On February 8, 2010, the trial court again conducted a hearing on Smith's motion to suppress. During this hearing, the trial court found that the motion had been properly served upon the prosecutor's office, that the State was not ready to proceed in opposition to the motion at the previous hearing, and that, “given the evidence that's been brought forward,” it was appropriate to grant the motion without holding an evidentiary hearing. The State's prosecutor immediately moved for reconsideration of this ruling, and in doing so noted that the suppression of the photographic and in-court identifications concerned an issue that was “very substantial.” The trial court advised the prosecutor that it would not revisit the matter, but would instead give the State “an opportunity to resolve the case.” In doing so, the trial court made the following remarks to counsel:
Quite frankly, I do believe that the defendant's motion [to suppress] is meritorious, given the fact that the State had the opportunity to get its witnesses here. I think the motion was properly set down, and it just didn't materialize on behalf of the State. The offer—There was an offer of probation made with respect to the robbery and dead docketing of the kidnapping previously. I assume that the State made that offer for a reason. You know the case better than I do because I don't really recall many of the facts of the case. I do know that we tried the co-defendant.4
I will give the State an opportunity to huddle with [Smith's counsel] and talk about it. Try and resolve the case, and we will see where we go from there.
At this point, the prosecutor advised the trial court that she had prepared for an evidentiary hearing, and noted that the investigating officer and two victims were in the courtroom and prepared to testify on behalf of the State in opposition to the motion to suppress. The trial court informed the prosecutor that it was not “inclined to [hold an evidentiary hearing] at that time,” and then directed the parties to discuss resolution of the case.
Unsurprisingly, the prosecutor and defense counsel were unable to reach an agreement. The trial court then reaffirmed its decision to grant Smith's motion to suppress, and in doing so noted that it would “include any and all ... out-of-court as well as in-court identifications of the defendant.” The prosecutor, once again, pleaded with the trial court to reconsider its ruling:
There was no recordation of any motions having been filed on any district attorney. So I was operating under the assumption that our office had not been served copies of the motion. However, since that time I have looked at the co-defendant's ... trial file folder, and I discovered that there was, in fact, in that defendant's file, a copy of the motions, the same exhibit that counsel has tendered [i.e., the motion to suppress].
However, I will state in my place I was not aware of that. And then, in good faith, I assumed that we had not been properly—We being the District Attorney's Office, had not been properly served with the motion or I wouldn't [sic] have subpoenaed the victim, who ... has always been local since the time of their indictment. The detective has always been with the Atlanta Police Department. He has since retired, but is still local. And the brother who is currently local, at one time was out of state, but we have always had contact information for him. So there would have been no reason the State would not have been prepared, other than in good faith. I honestly believed that the State had not been served with copies of the motion ... So, you know, the State has now been prejudiced as a result.
But, Judge, when I filed the motion for reconsideration, it was just asking for the Court to allow the State to present [sic] evidentiary hearing of evidence before the Court. Those victims ... were present today as well as [the detective] who conducted the photographic lineup as well as what the State would expect the in-court ID [to show, and this testimony is] very crucial to the case.... 5
Notwithstanding this impassioned plea, the trial court granted Smith's motion to suppress without holding an evidentiary hearing, finding that the State failed to proffer any evidence to contest the motion (even though the State was ready and prepared to do just that at the February 8, 2010 hearing). This appeal follows.
1. We first address the issue of whether we have jurisdiction over this appeal. It is well established that “[t]his Court has a duty to inquire into its jurisdiction to review the errors alleged on appeal,” 6 and it is a duty that we do not take lightly.7 And after conducting such an inquiry in this matter, we find that despite the admittedly unique circumstances involved, we have jurisdiction over this appeal.
Under OCGA § 5–7–1(a)(4), the State may appeal directly “[f]rom an order, decision, or judgment suppressing or excluding evidence illegally seized or excluding the results of any test for alcohol or drugs in the case of motions made and ruled upon prior to the impaneling of a jury or the defendant being put in jeopardy....” Addressing this statute 8 in Strickman v. State, the Supreme Court of Georgia deemed “the enactment of the appeal statute to be remedial in nature, so that an error committed by a trial judge, which otherwise might work a miscarriage of justice, can be corrected on appeal, and before attachment of jeopardy,” and further noted that, “[b]eing remedial in nature, it should be construed liberally.” 9 In that same opinion, the Supreme Court held that “if a defendant moves before trial to exclude evidence on the ground that it was obtained in violation of law, the grant of such a motion—whatever its name—is subject to direct appeal on the part of the state.” 10
Here, Smith filed a motion to suppress identifications on the ground that they were obtained as a result of an improper photographic lineup, and the State had the burden of showing that this lineup was...
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