Thompson v. State

• Decision Date: 07 March 2013
• Docket Number: No. A12A2000.,A12A2000.
• Citation: 739 S.E.2d 434,320 Ga.App. 150
• Parties: THOMPSON v. The STATE.
• Court: Georgia Court of Appeals

320 Ga.App. 150

739 S.E.2d 434

THOMPSON

v.The STATE.

No. A12A2000.

Court of Appeals of Georgia.

March 7, 2013.

Brown & Gill, Angela Brown Dillon, M. Katherine Durant, for Appellant.

Daniel J. Porter, Dist. Atty., Lindsay Beth Gardner, Asst. Dist. Atty., for Appellee.

BARNES, Presiding Judge.

Douglas Thompson and five co-defendants were indicted for crimes arising from a home invasion that involved three victims, and the co-defendants were also indicted for additional crimes related to two more armed robberies that occurred later the same evening. A jury convicted Thompson of four counts of aggravated assault, three counts of false imprisonment, and one count each of armed robbery, burglary, possession of marijuana with intent to distribute, and possession of a firearm during the commission of a felony, and the trial court sentenced him to an aggregate of 40 years, to serve 20 incarcerated followed by 20 on probation. On appeal, Thompson argues that the evidence was insufficient as to the crimes other than the drug offense, that he was entitled to a directed verdict due to a substantial variance between the indictment and evidence, and that the trial court erred in allowing the State to impeach witnesses without a proper foundation and by allowing the prosecutor to sit in the witness stand during closing argument. For the reasons that follow, we affirm.

1. Thompson argues that the evidence was insufficient to support the verdict. On appeal, a reviewing court must view the evidence in the light most favorable to the verdict, no longer presuming the defendant is innocent. Anthony v. State, 317 Ga.App. 807, 732 S.E.2d 845 (2012). Consistent with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we neither weigh the evidence nor decide if witnesses were credible, but only determine whether the evidence, viewed in the light most favorable to the verdict, is sufficient to sustain the convictions. Campbell v. State, 278 Ga. 839, 840(1), 607 S.E.2d 565 (2005).

Viewed in that light, the evidence at trial established that around midnight on September 15, 2010, Thompson kicked in a door and entered an apartment occupied by three men. Thompson and two or three other intruders began screaming at the men to get on the floor. One man was forced to the living room floor at gunpoint, another was herded from a back bedroom to the living room, and the third victim jumped out of the window. That victim, who testified at trial through an interpreter, was captured at gunpoint when he returned to the apartment to help his friends. The intruders searched the apartment and took one of the victim's wallet and the keys to his work van, then left. A neighbor called 911 and officers responded. One of the officers interviewed a victim, who described the incident and the intruders' height, weight, and race, although their faces were covered. The officer noted that the victims' door frame was shattered and a footprint on the door indicated it had been kicked in.

Several hours later, three armed robberies took place within 40 minutes of each other. One of the victims found a DeKalb County police officer and was reporting the crime when he spotted the robbers driving by. The officer saw the occupants throw objects from the car, pulled it over, and placed the six occupants under arrest. Gwinnett County officers responded to the arrest because the robberies had taken place in Gwinnett County, and a crime scene investigator collected two handguns and other items from the roadside. A Gwinnett County detective assigned to investigate the home invasion and the armed robberies interviewed the arrestees, some of whom finally admitted they were involved with the robberies and identified Thompson as one of the robbers in the home invasion. Several also said during interviews that Thompson had provided the guns used in the string of robberies. Based on these statements, the police obtained and executed a search warrant for Thompson's house, where they found marijuana, digital scales, and a device used to grind marijuana.

Several of Thompson's co-defendants pled guilty to various crimes and testified that Thompson provided the guns and participated in the home invasion. One co-defendant testified that someone in the group had identified the apartment as belonging to a drug dealer, and that he rode to the scene of the invasion with Thompson in Thompson's car. The co-defendant had planned to take any money they found and Thompson had planned to take any drugs they found. Six other people rode to the scene of the invasion in a separate vehicle. Thompson kicked the door in and he and the co-defendant entered the apartment with handguns, but they found no drugs or money. The group returned to their own neighborhood, and everyone but Thompson went back out and committed the other armed robberies. In contrast, Thompson and his girlfriend both testified that he had been home on the night of the home invasion.

Thompson argues on appeal that the only testimony implicating him in the crimes came from co-defendants who had all made deals with the prosecution in exchange for testifying against him. He contends that this evidence was insufficient because the only victim who testified could not identify him, his fingerprints were not found on the weapons or at the scene, no stolen items were found in his house, and he and his fiancée both testified that he had been home all night.

While a defendant may not be convicted on the uncorroborated testimony of one accomplice, only slight evidence is required to corroborate it. James v. State, 316 Ga.App. 406, 408(1), 730 S.E.2d 20 (2012). See also former OCGA § 24–4–8.¹ Further, if “more than one accomplice testifies at trial, the testimony of one accomplice may be corroborated by the testimony of the others.” Hanifa v. State, 269 Ga. 797, 808–809(7), 505 S.E.2d 731 (1998). While Thompson argues that when “the self-serving testimony of these accomplices is the only corroborating evidence, this rule should not be applied as a matter of fundamental fairness,” as the State notes, four accomplices identified Thompson as providing the guns for the home invasion and driving there in his own car. Further, two of those four identified Thompson as the person who kicked in the front door, entered the apartment first, and held a gun to one victim's head. Finally, the accomplices, including a girl who was 13 when the crimes were committed, identified Thompson as a participant more than a year before they tendered their guilty pleas.

The accomplices' testimony concerning Thompson's participation in the crimes related to the home invasion was sufficiently corroborated to authorize the denial of his motion for a directed verdict of acquittal. Hanifa, 269 Ga. at 809(7), 505 S.E.2d 731. Accordingly, the evidence as outlined above was sufficient for a rational trier of fact to find Thompson guilty beyond a reasonable doubt of the offenses charged. Campbell, 278 Ga. at 841(1), 607 S.E.2d 565.

2. Thompson contends that the trial court erred in denying his motion for a directed verdict based on a fatal variance between the indictment and the evidence. A motion for a directed verdict of acquittal should be granted only when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. OCGA § 17–9–1(a); Taylor v. State, 252 Ga. 125, 127(1), 312 S.E.2d 311 (1984).

Thompson was indicted for and convicted of the armed robbery and false imprisonment of Israel Cruz, the aggravated assault and false imprisonment of Pedro Moncera Arellano, and the burglary of the dwelling house of Israel Cruz, Pedro Moncera Arellano, and Luis Perez. At trial, one of the victims identified himself variously as Luis Garcia, Luis Roberto Garcia, and Alberto Garcia, and the investigating officer testified that the victim had given his name as “Luis Roberto Garcia–Perez.” Perez testified about the home invasion, during which his roommates “Israel Penya” and “Pedro Moncero” were present. When asked to refer to the other victims using “their whole name,” the witness replied, “I just know his name like that, Israel.” He later testified that when the robbers burst into the apartment, “Israel” was asleep in the living room and “Pedro was in his room.” The robbers placed “Israel” on the ground and brought “Pedro” out of his room into the living room, and when they left they took a wallet of “Israel's.”

Thompson contends that, because the evidence at trial identified two of the victims as “Israel Penya” and “Pedro Moncera” but not “Israel Cruz” and “Pedro Moncera Arellano,” he was entitled to directed verdicts on the charges involving Cruz and Arellano. We disagree.

[If] a variance exists between the victim's name as alleged in the indictment and as proven at trial, ... the variance is not fatal if the two names in fact refer to the same individual, such as where a mere misnomer is involved or where the variance is attributable to the use of a nickname or alias by the victim.

Harrison v. State, 192 Ga.App. 690, 691(1), 385 S.E.2d 774 (1989). While Thompson points out, correctly, that the State put forth no evidence to demonstrate the cause of the variance between the victim's names in the indictment and the victim's names adduced at trial, our law does not require an explanation for why the names were different; it only requires that the different names actually refer to the same person.

That the controlling issue is the identity of the person, not the similarity of the name, was first described in Chapman v. State, 18 Ga. 736 (1855). Our Supreme Court explained the reasoning as follows:

The change continually going on in the mode of spelling names—the different pronunciation of the same name, according to the circumstances and condition in life of the owner, makes the objection, upon the score of discrepancy, much less material than formerly....