Westbrook v. State
| Decision Date | 03 June 2020 |
| Docket Number | A20A0579 |
| Citation | 355 Ga.App. 334,844 S.E.2d 208 |
| Parties | WESTBROOK v. The STATE. |
| Court | Georgia Court of Appeals |
Conger & Smith, Gregory D. Smith, for appellant.
Gregory W. Edwards, District Attorney, Seterria R. Brodnex, Assistant District Attorney, for appellee.
Following a jury trial, Silas Redgize Westbrook, Jr., was convicted of armed robbery, violation of the Georgia Street Gang Terrorism and Prevention Act ("GSGTPA"),1 and possession of a firearm during the commission of a felony. He appeals from the denial of his motion for new trial, contending that the trial court erred by admitting evidence of his prior guilty plea to armed robbery in 2000 under OCGA § 24-4-404 (b) (‘‘Rule 404 (b)’’). For the reasons that follow, we affirm.
Construed in favor of the verdict,2 the evidence shows that on November 14, 2014, Tometrius King robbed a Brothers convenience store at approximately 8:00 a.m.3 As described by store employees, King entered the store, pointed a gun at one of the employees, and demanded money, saying, "give it up, bitch." The employee gave him the money from the cash drawer, and King fled. As King ran out of the store, another store worker grabbed a machete and chased King as he fled the scene. King turned and shot at the worker, who immediately laid on the ground to avoid being hit. A video surveillance system recorded the robbery and shooting, and it captured a white sedan driving by at the time of the robbery.
The same day, November 14, 2014, shortly after 8:30 a.m., the same man robbed a nearby Mini Mart convenience store at gunpoint. Video cameras captured the same white car, which had the make and model badges removed, tinted windows, and distinctive tail lights and chrome rims. In both robberies, the car appeared to park strategically in nearby locations to avoid detection and aid in quick departure.
In the ensuing investigation, police were able to determine that the white car used in both robberies was registered to Westbrook's wife. Police set up a surveillance operation at the location where the car was parked, and shortly thereafter, Westbrook approached the vehicle. At this point, five days after the robberies, Westbrook was interviewed by police and agreed to talk after waiving his Miranda4 rights.
In the interview, Westbrook first denied that he knew King, but then admitted that he knew King as his nephew. On the morning of the robberies, he agreed to give King a ride to a store, and after giving conflicting accounts, he admitted that he agreed to give King a ride to a second location soon after hearing gunshots. Police also interviewed King, who implicated Westbrook in the robberies, explaining that Westbrook was recruiting him into the Gangster Disciples street gang. King said that the robberies were a way of gaining membership and status in the organization.
Based on these events, King and Westbrook were charged in a multi-count indictment alleging, in relevant part, that Westbrook committed two counts of armed robbery, one count of violating the GSGTPA, and two counts of possessing a firearm during the commission of a felony. King ultimately pleaded guilty to the robberies, and in exchange for a favorable sentencing request from the State, he testified against Westbrook in a jury trial. The jury found Westbrook guilty of four of the counts, acquitting him of one armed robbery (the Brothers store) and the corresponding firearm count. After his motion for new trial was denied, Westbrook filed this appeal.
Westbrook contends that the trial court abused its discretion by admitting evidence under OCGA § 24-4-404 (b) that he pleaded guilty in 2000 to an armed robbery that he committed in 1999 when he was 16.5 We disagree.
Here, the State offered the Rule 404 (b) evidence at issue via testimony from an officer who investigated and arrested Westbrook for the 1999 robbery and through a certified copy of his conviction pursuant to a guilty plea. This evidence showed that in the 1999 offense, Westbrook stole money at gunpoint from a convenience store. He also stole the store security videotape, but he was observed by witnesses who were able to identify him, leading to his arrest. He acted alone.
1. Relevance to an issue other than character. For evidentiary purposes, OCGA § 24-4-401 defines ‘‘relevance’’ as "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Notably, the relevance definition only requires "any tendency" to make a fact more probable or less probable, so the standard is a liberal one.8
The State offered the evidence initially to prove "[a]bsence of mistake or accident, intent, knowledge, motive, preparation[,] and plan, as well as opportunity," later focusing its argument on intent and absence of mistake. The evidence showed that Westbrook's involvement was limited to recruiting King to do the robberies, supplying him with a firearm, and acting as a driver — he did not personally enter the stores and steal the money. Based on this, Westbrook argued that King acted of his own accord and that Westbrook was both ignorant of King's plan and intent to rob the stores when he gave King a ride in his vehicle, and Westbrook testified that he was intimidated by the fact that King had a gun: "you can fight a man, but you can't beat a bullet." Therefore, Westbrook's motive and intent in giving King a ride were squarely at issue in the trial, and the earlier armed robbery required a comparable intent to rob that Westbrook was accused of having in this case.9 Therefore, the State met its burden to show a permissible purpose for admitting the 2000 conviction other than Westbrook's character.10
As noted above, there was no evidence that Westbrook himself was the gunman or robber; rather, the evidence showed that Westbrook's involvement was peripheral, even if he was a party to the second robbery as the getaway driver.12 Showing Westbrook's actual participation, rather than mere presence, was crucial to the State.13 Therefore, the State's need for the evidence was not merely a pretextual disguise masking its prejudicial effect.14
The classic situations calling for admissibility of independent crimes or acts to prove intent are when the defendant admits a certain involvement in the criminal incident but maintains he was duped or forced to go along and thus lacked the necessary criminal intent or the defendant admits the charged conduct but claims he did not intend to act criminally.15
Although robbing a convenience store at gunpoint is not tantamount to rocket science, familiarity with the commission and planning of the offense certainly renders one less naive about the perpetrator's conduct and demeanor leading up to one. For example, after King committed the first robbery and shot at the clerk, Westbrook proclaimed ignorance about King's conduct and intent when he drove King to a second location to commit the second robbery. The evidence that Westbrook had prior experience with armed robbery, including the shrewdness to steal the store surveillance tape in 1999, is highly probative of his intent as he drove King to the second location and parked strategically nearby to afford a discreet getaway. The prior robbery shared many of the same traits, including the type of establishment and the type of weapon, and there was little in the execution of the acts that distinguished them from each other, aside from the fact that...
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...phase of the trial, after the jury already had found Wright guilty of the currently charged offenses. Cf. Westbrook v. State , 355 Ga. App. 334, 338 (2), 844 S.E.2d 208 (2020) (concluding that the potential undue prejudicial effect of other acts evidence was mitigated where the jury learned......
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Wright v. State
... ... trial, [ 14 ] and the convictions and sentences ... themselves were not admitted until the second phase of the ... trial, after the jury already had found Wright guilty of the ... currently charged offenses. Cf. Westbrook v. State , ... 355 Ga.App. 334, 338 (2) (844 S.E.2d 208) (2020) (concluding ... that the potential undue prejudicial effect of other acts ... evidence was mitigated where the jury learned that the ... defendant had "been convicted and served a prison ... sentence for ... ...
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Brooks v. State
... ... been convicted and served a prison sentence for his ... earlier conduct, making it less likely that the jury would ... want to punish [Brooks] for this past conduct rather than the ... charged crimes." Westbrook v. State , 355 ... Ga.App. 334, 338 (2) (844 S.E.2d 208) (2020). Under these ... circumstances, we find no abuse of the trial court's ... discretion in admitting evidence of Brooks's 1988 ... convictions for rape and aggravated sodomy ... 6 ... ...
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Sloans v. State
...(2018) ("The high prosecutorial need for [other acts] evidence ... greatly increases its probative value."); Westbrook v. State , 355 Ga. App. 334, 337 (2), 844 S.E.2d 208 (2020) (finding that showing defendant's actual participation in crime, rather than mere presence, was "crucial" to Sta......