Wickerson v. State

• Decision Date: 22 May 2013
• Docket Number: No. A13A0145.,A13A0145.
• Citation: 743 S.E.2d 509,321 Ga.App. 844
• Parties: WICKERSON v. The STATE.
• Court: Georgia Court of Appeals

321 Ga.App. 844

743 S.E.2d 509

WICKERSON

v.The STATE.

No. A13A0145.

Court of Appeals of Georgia.

May 22, 2013.

Jonathan Reuven Melnick, Atlanta, for Appellant.

Robert D. James, Jr., Dist. Atty., Daniel J. Quinn, Asst. Dist. Atty., for Appellee.

BARNES, Presiding Judge.

Based upon allegations that he and two accomplices robbed four victims at gunpoint in the course of one evening in DeKalb County, Cedric Wickerson was indicted, tried, and convicted of multiple counts of armed robbery and aggravated assault. The trial court denied his motion for new trial. On appeal, Wickerson contends that there was insufficient evidence to prove that he was involved in the robbery of the second and third victims or to prove that venue for the crimes was proper in DeKalb County. He further contends that his trial counsel rendered ineffective assistance. For the reasons discussed below, the evidence was sufficient to support the verdicts, and Wickerson failed to demonstrate that his trial counsel was ineffective. However, the trial court erred in failing to merge one of Wickerson's aggravated assault convictions into one of his armed robbery convictions for sentencing purposes. Accordingly, we affirm in part, vacate in part, and remand for resentencing.¹

Following a criminal conviction, we view the evidence in the light most favorable to the jury's verdict. See Vaughn v. State, 301 Ga.App. 391, 687 S.E.2d 651 (2009). So viewed, the evidence showed that on the night of December 1, 2008, within the span of approximately twenty minutes, four victims were robbed at gunpoint within a three-mile radius of one another in DeKalb County. All of the robberies occurred in or near apartment complexes.

The first victim was walking into the Colony Apartments when a gold Cavalier with a dent on the side and a cracked taillight stopped near him. Two men jumped out while a woman remained in the car. One of the male robbers pointed a .357 caliber revolver at the victim and told him to “give it up.” As the victim was emptying his pockets, the robber struck the victim in the jaw with the gun, causing him to stumble to the ground and drop his cell phone, his driver's license, and all of his cash. The second male robber picked up the items that had been dropped. The victim got up from the ground, pushed one of the male robbers, and took off running. He ran to a friend's house, and his friend's mother called the police when she saw the victim at the door with blood on him.

That same night, a plumber and his assistant (the second and third victims) were trying to repair a broken water main at the Windchase Apartments. The plumber saw two men slowly approach the back of his parked utility truck. The two men then walked around the truck, and one of them pointed a handgun at the back of the plumber's head, said that it was a robbery, and made the plumber and his assistant turn around. The handgun held by the robber appeared to be a .357 caliber revolver. While the first robber held the plumber at gunpoint, the second robber approached the plumber's assistant and began striking him. When the plumber attempted to stop the second robber from hitting his assistant, the first robber struck the plumber twice in the head with the revolver, causing him to bleed heavily and ultimately requiring multiple stitches on the back right and left sides of his head. At the first robber's command, the plumber got down on the ground, after which the second robber began to kick him in the side. The robbers took the plumber's wallet and tool bag and his assistant's Blackberry cell phone. The robbers eventually walked away, and the plumber's assistant went to a nearby apartment and had the tenant call the police while the plumber lay on the ground.

A few minutes after the robbery of the plumber and his assistant, a fourth victim was walking home to her apartment which was near the Windchase Apartments when she saw a gold Cavalier exit from that complex. She heard a car door close and then was approached by a man who grabbed her, pushed her against a fence, pointed a .357 caliber revolver in her face, and told her to hand over her purse and other belongings. The Cavalier backed up to where she and the robber holding her at gunpoint were located, and the fourth victim saw that there was a woman in the driver's seat and a man in the front passenger seat. After the robber who was holding her at gunpoint took her purse and camera, he got into the rear seat of the Cavalier, which then drove off. The fourth victim was able to see the license tag number as the Cavalier drove away, and she called 911 on her cell phone, reported what had happened, and provided a tag number to the dispatcher.

The three robberies occurred at approximately 9:30, 9:40, and 9:50 p.m. Shortly after 10:00 p.m., a be-on-the-lookout (“BOLO”) was issued for the gold Cavalier with the specified license tag number and for the suspects seen in the car, identified as two men and a woman. An officer with the City of Pine Lake Police Department was on patrol near where the robberies had occurred. After hearing the BOLO, the officer began looking for the Cavalier and located it within minutes in an apartment complex that was about a quarter of a mile away from the Windchase Apartments. The officer observed the Cavalier backing into a parking space there, and he saw that it was occupied by two men and a woman. The woman was driving, and one man was in the front passenger seat while the other man was in the back seat. The license tag number on the gold Cavalier closely matched the number given by the fourth victim,² and the car had a dent on the side and a cracked taillight as described by the first victim.

The officer stopped his patrol car, got out, and approached the Cavalier. The woman stayed in the car, but the two men got out and began walking away. The officer ordered the men to stop, but they fled into a nearby apartment unit, where they turned off the lights, shut the blinds, and locked themselves inside. At that point, the officer radioed for backup and arrested the woman who had stayed in the car.

A search warrant was obtained for the apartment. Upon executing the search warrant, officers located the two males inside the apartment and arrested them. No one else was inside the apartment. During the search, officers recovered from inside the apartment the driver's license of the first victim, which had been cut into pieces; the tool bag of the second victim (the plumber), which had blood on it; and the camera of the fourth victim. They also recovered a .357 caliber revolver hidden in the toilet tank in the master bathroom, and bloody bullets under a mattress. During the subsequent execution of a search warrant for the gold Cavalier, officers recovered a Blackberry cell phone matching the description of the one stolen from the third victim (the plumber's assistant).

The woman driver of the Cavalier was identified as Whitney McGlasker, and the two men who had barricaded themselves inside the apartment were identified as Derrick Greene and Cedric Wickerson. The Cavalier was registered in the name of Wickerson's mother. The registered tenant of the apartment where Greene and Wickerson had barricaded themselves was Greene's girlfriend.

McGlasker, Greene, and Wickerson were indicted for multiple offenses arising out of the robberies. McGlasker was tried and convicted of three counts of armed robbery and four counts of aggravated assault. See McGlasker v. State, 321 Ga.App. 614, 741 S.E.2d 303 (2013). Greene pled guilty to multiple offenses relating to the robberies. Wickerson was tried separately on multiple counts of armed robbery and aggravated assault.³

At Wickerson's trial, the State presented testimony and exhibits pertaining to pre-trial photographic lineups that had been shown to the first, second, and fourth victims by a police detective.⁴ The first victim had identified Greene and Wickerson in pre-trial photographic lineups as the two men who had robbed him, but he had been unable to identify the woman involved in the robbery. In addition to his testimony about the photographic lineups, the first victim positively identified Wickerson in the courtroom as the robber who had held him at gunpoint and struck him in the face with the revolver.

The second victim, the plumber, had identified Greene in a pre-trial photographic lineup as one of the men who had robbed him but had been unable to identify the other male robber. The plumber testified that he had been focused on Greene, the robber who had held the revolver to his head and struck him with it, and thus was unsure of the identity of the other man involved in the robbery.

The fourth victim had identified McGlasker, Greene, and Wickerson in pre-trial photographic lineups as the individuals who had robbed her. In addition to her testimony about the photographic lineups, the fourth victim positively identified Wickerson in the courtroom as the robber who had jumped out of the Cavalier, held her at gunpoint, and taken her purse and camera.

The State also called several law enforcement officers as witnesses. Specifically, the State presented the testimony of the Pine Lake patrol officer who had located Wickerson and the other suspects after the robberies; the police investigators involved in the search of the apartment where Wickerson had barricaded himself and in the search of the Cavalier; and the police detective who had overseen the investigation of the robberies and had shown the photographic lineups to the victims.

Wickerson chose to testify and denied any involvement in the robberies, although he admitted that he had given inconsistent statements to the police about that night. He also admitted that had been with Greene around 8:30 p.m. and later at 10:00 p.m. on the night of the robberies, and that he had barricaded himself in the apartment with Greene because the police were outside. Wickerson, however, denied that he had been with...