Waddell v. State, A05A1961.

• Decision Date: 28 February 2006
• Docket Number: No. A05A1961.,A05A1961.
• Citation: 627 S.E.2d 840,277 Ga. App. 772
• Parties: WADDELL v. The STATE.
• Court: Georgia Court of Appeals

277 Ga. App. 772

Page 840

627 S.E.2d 840

WADDELL v. The STATE.

No. A05A1961.

Court of Appeals of Georgia.

February 28, 2006.

J.M. Raffauf, Decatur, for appellant.

Gwendolyn Keyes Fleming, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

ANDREWS, Presiding Judge.

Terrence Arlington Waddell, convicted by a jury of armed robbery of and aggravated assault on LePaul Manson, appeals from the trial court's denial of his motion for new trial, challenging the sufficiency of the evidence, contending that portions of the jury charge were erroneous, and that the victim's in-court identification of Waddell was tainted by improper pre-trial identifications.

1. We consider first the sufficiency of the evidence.

On appeal, we view the evidence in the light most favorable to the verdict and [Waddell] no longer enjoys the presumption of innocence. We neither weigh the evidence nor judge the credibility of the witnesses, but only determine if the evidence is sufficient to sustain the convictions. [Cit.] OCGA § 24-4-8 provides that the testimony of a single witness is generally sufficient to establish a fact. The only exception in a felony case is when the single witness is an accomplice, which is not applicable to the present case. [Cit.]

Lovelace v. State, 269 Ga.App. 272, 273(1), 603 S.E.2d 784 (2004).

So viewed, the evidence here was that, on the evening of Saturday, March 22, 2003, Manson, accompanied by his friend Khalil Reid, had been selling DVDs and sports shoes out of his car.¹ They went to a Waffle House to eat between 2:00 and 4:00 on Sunday morning. While there, Manson had a CD/DVD player which he put on the table in order to demonstrate DVDs for anyone interested. This attracted the attention of a large group of high school students in the Waffle House. When Manson went outside to smoke a cigarette, Waddell² and other teenagers followed him outside. The teens said some were from Lithonia High School and some, including Waddell, were from the Open Campus. Only one of the teenagers, Waddell, made a purchase from Manson that morning. Waddell purchased a pair of Nike Air Jordans and told Manson that he wanted to buy another pair of shoes, but did not have enough money. Manson and Waddell exchanged cell phone numbers so Manson could be contacted when Waddell got more money. Manson saw Waddell get in a black car with "speedimports.com" on the back.

On Sunday evening, Manson received a call from Waddell, whose voice he recognized as the person who bought shoes earlier that morning. Waddell said he still did not have the money, but would follow up and contact Manson when he did. On Monday evening, between 7:00 and 9:00, Waddell called Manson again and gave him an address in Somerset Condominiums where Waddell said he would meet Manson to buy the other shoes. Manson drove to the address, but could not locate Waddell. He did, however, see the black car with "speedimports.com" on it parked in the parking lot.

Waddell called Manson again and told him to return to the address and he would find Waddell standing against a car in the parking lot. Manson drove back to the condos. He knocked on a door and asked the resident, Mr. Alexander, for someone, but Alexander did not know what he was talking about.³ Later, Manson did find Waddell standing against a car. Waddell approached Manson's car and asked him if he had a lighter. Although Manson looked for a lighter, he could not find one. While he was looking for the lighter, Waddell mentioned a pair of Air Force One shoes he could see in the rear of the hatchback car. Manson got out to open the trunk and Waddell stayed close to him. When Manson got ready to open the trunk, he "heard the cocking back of a gun." When he turned in response to the sound, Manson was shot in the face, severely injuring him. As he fell to the ground, he saw Waddell fumbling in the trunk and then a second individual come up and go to the passenger door and begin to rummage through his things. Manson remembers them asking him if he had money.

Police found a 9 mm shell casing at the scene of the shooting. Manson suffered a bullet wound to his jaw and the bullet ricocheted and came to rest in his lung. He was hospitalized for three weeks.

Shortly after Manson was hospitalized, he was visited by Reid, who asked him what happened. Manson told him it was one of the guys to whom he had sold shoes. Reid recalled that the young man drove off in a black sporty looking Honda with "speedimports.com" on the back. Reid called the detective on the case and gave him this information as well as telling him that Waddell attended the Open Campus. Detectives contacted Officer Lee, the school detective at the Open Campus and asked her to check for this Honda. She did, and found Waddell driving it on campus. The car was registered to Waddell and his mother, Patricia Waddell.

Detectives obtained phone records for Manson's cell phone and determined that the number used to contact Waddell was that of Patricia Waddell, who lived in the same neighborhood as the Somerset Condominiums. Detective Stanfield then put together a photographic array of six pictures, including Waddell's. On May 23, 2003, he showed the array to Manson, who picked Waddell's photograph and said he was "70 percent sure." The reason he said only 70 percent was because of the skin tone as reflected in the photograph.

An analysis of the cell phone records showed calls to and from Ms. Waddell's phone and Manson's phone. There was a call from the Waddell phone to Manson's phone at 8:24 p.m. on Sunday, March 23, 2003, and one shortly before 11:00 p.m. on Monday, March 24.

Waddell argued mistaken identity at trial. But, "[t]he jury, not this Court, resolves conflicts in the testimony, weighs the evidence and draws reasonable inferences from the evidence." (Citation omitted.) Strong v. State, 265 Ga.App. 257, 258, 593 S.E.2d 719 (2004). "As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld." (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832, 546 S.E.2d 524 (2001).

The evidence was sufficient to prove aggravated assault and armed robbery.

2. Waddell's second through seventh enumerations of error deal with the charge to the jury on parties to a crime. These enumerations are considered together.

During discussion of the jury charge, the State requested that a charge on parties to a crime⁴ be given, due to the appearance of the second individual at the crime scene. Waddell's trial counsel objected to the giving of this charge because the State charged Waddell with directly committing the crime. The trial court did not give it during the initial charge to the jury.

During the jury's deliberations, this question was posed to the court: "If one actively participates in the robbery but does not hold the gun or has possession of the shoes, are they guilty of armed robbery?" In response, the trial court charged the jury as follows:

In response to that question, I'm going to further instruct you: every party to a crime may be charged with and convicted of commission of the crime. A person is a party to the crime only if that person directly commits the crime or intentionally helps in the commission of the crime. Any party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that the person was a party to it, even though the person claimed to have directly committed the crime has not been prosecuted or convicted or has been convicted of a different crime or degree of crime or is not amenable to justice or has been acquitted.

Waddell's counsel again objected to the charge on the same basis, but the trial court pointed out that Manson had seen a second individual at the scene and had not actually seen Waddell with the gun, but only heard it cock. The trial court concluded that might be the basis of the jury's question and gave the charge.

Waddell's contention that the case was not indicted, tried or argued on the theory of party to a crime is without merit since OCGA § 16-2-20(b)(1) defines a party to the crime as one who "[d]irectly commits the crime."

It is within the discretion of the trial court to determine whether supplemental jury instructions are necessary. See Payne v. State, 219 Ga.App. 318(1)(b), 464 S.E.2d 884 (1995). On appeal, we review the trial court's determination for abuse of that discretion, "taking into account the sensitive nature of the judge's responsibility at this stage of the trial and the duty of the trial judge to provide impartial and effective guidance on the law for the jury to follow in its deliberations." (Punctuation omitted.) Id. We have held that

[t]he court has a perfect right, after the jury has retired to consider its verdict, to call the jury back into the courtroom and either give further instructions which have been omitted through oversight or, on receiving a request for further instructions, to give such reply as the facts may warrant.

Barraza v. State, 149 Ga.App. 738, 739(2), 256 S.E.2d 48 (1979). See also Putnam v. State, 250 Ga. 418, 419(2), 297 S.E.2d 286 (1982); Payne v. State, supra at 318(1)(b), 464 S.E.2d 884; Litmon v. State, 186 Ga.App. 762(2), 368 S.E.2d 530 (1988).

Waddell's argument that it was error not to charge the entire statute is also without merit. OCGA § 16-2-20(b)(2) and (4) involve causing another person to commit the crime under circumstances where the other person cannot be guilty of a crime "in fact or because of legal incapacity" and advising, encouraging, hiring, counseling, or procuring another to commit the crime. There was no evidence to support a charge on either subsection here.

In Sharpe v. State, 272 Ga. 684, 688(6), 531 S.E.2d 84 (2000), Waddell's argument that the trial court erred in using ...