Williams v. State

• Decision Date: 21 February 2020
• Docket Number: A19A2021
• Citation: 353 Ga.App. 821,840 S.E.2d 32
• Parties: WILLIAMS v. The STATE.
• Court: Georgia Court of Appeals

353 Ga.App. 821

840 S.E.2d 32

WILLIAMS

v.The STATE.

A19A2021

Court of Appeals of Georgia.

February 21, 2020

John Walter Kraus, for Appellant.

Elizabeth A. Baker, John Evans Fowler, Tasha Monique Mosley, Tracy Graham Lawson, Charles Anthony Brooks, for Appellee.

Reese, Judge.

Following a bifurcated trial, a Clayton County jury found Lewis Williams ("the Appellant") guilty of armed robbery, aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon.¹ The Appellant seeks review of the denial of his motion for new trial, arguing that the evidence was insufficient to support the convictions, and that the trial court erred in admitting the lineup photo arrays and improperly charged the jury as to armed robbery and as to being a felon in possession of a firearm. Further, the Appellant contends that he was denied the effective assistance of counsel. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict,² the record shows the following facts. On February 15, 2015, at approximately 4:30 p.m., B. W. stopped at a gas station in Clayton County and pumped gas into his vehicle while his brother, A. W., and their cousin, E. W., remained in the car. While B. W. pumped gas, he saw the Appellant, whom he knew "through mutual friends." B. W. testified that the Appellant grabbed B. W. and placed him in a choke hold. While in the choke hold, the Appellant searched B. W.’s pockets and grabbed two gold necklaces from B. W.’s neck and "snatched the chains off." The jewelry fell to the ground. When the Appellant attempted to pick up the jewelry, B. W. "stomped" on the necklaces to prevent the Appellant from taking them. B. W. testified that the Appellant pulled out a gun, shot him in the chest, took the jewelry, got into a car, and fled. B. W. walked into the gas station and asked that someone call 911. Next, B. W. walked to his vehicle, and his cousin drove him home. After arriving at home, B. W.’s mother called 911, and emergency medical services transported B. W. to a hospital where he remained for approximately one week as he recovered from a collapsed lung.

A. W. testified that he knew the Appellant through "former friends[.]" He further testified that upon arriving at the gas station that day, B. W. and his cousin got out of the vehicle. B. W. went into the store, and their cousin stood by the car. When B. W. returned to the car, the Appellant walked up to B. W., grabbed him from behind, and "popped" the necklaces from B. W.’s neck. A. W. testified that when the necklaces fell to the ground, B. W. stepped on the jewelry, the Appellant pulled out a gun, pointed it toward B. W., and shot him.

An investigator with the Clayton County Sheriff’s Department conducted an investigation of the incident. The investigator testified that during the investigation, both B. W. and A. W. identified the Appellant as the shooter in separate photo lineups.

After hearing the foregoing evidence, the jury found the Appellant guilty of armed robbery, aggravated assault, and possession of a firearm during the commission of a felony. The Appellant was then tried on the charge of possession of a firearm by a convicted felon. During that portion of the trial, the State introduced into evidence a certified copy of the Appellant’s 2011 Illinois conviction for possession of a firearm by a felon as State’s Exhibit 7. Following that trial, the jury found the Appellant guilty.

Following the jury trial, the Appellant filed a motion for new trial. After conducting a hearing, the trial court denied the Appellant’s motion. This appeal followed.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia ,³ and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.⁴

"The standard of Jackson v. Virginia^{[5 ]} is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crime charged."⁶ With these guiding principles in mind, we turn now to the Appellant’s specific claims of error.

1. The Appellant argues that the evidence was insufficient to support his armed robbery conviction. Specifically, the Appellant contends that the State failed to establish that the gun was used to threaten B. W. prior to the taking of his jewelry. We conclude that there was sufficient evidence for the jury to conclude, beyond a reasonable doubt, that the Appellant took the jewelry from B. W. with the use of a handgun, as charged in Count 2 of the indictment.

A person commits armed robbery "when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon."⁷ At trial, B. W. testified that when the Appellant grabbed his necklaces, the jewelry fell to the ground and B. W. secured them by stepping on the items. While B. W. stepped on the jewelry, he saw the Appellant pull out a gun and shoot him (B. W.) in the chest. It follows that "[w]here, as here, the evidence is sufficient to authorize a finding that the theft was completed after force was employed against the victim, a conviction for armed robbery is authorized."⁸ We conclude that the evidence presented was sufficient for a rational trier of fact to find the Appellant guilty of armed robbery beyond a reasonable doubt.

2. The Appellant argues that the trial court erred in admitting the photo arrays which included his picture in the lineups. Specifically, he contends that the admission of the photo arrays was irrelevant and should have been excluded under OCGA § 24-4-403 ("Rule 403").⁹

Generally, the reviewing court first determines

whether the identification procedure was impermissibly suggestive. If the answer to that inquiry is negative, we need not consider the second question — whether there was a substantial likelihood of irreparable misidentification. Conversely, [the reviewing court] may immediately proceed to the second question and, if the answer thereto is negative, [the court] may entirely pretermit the first question.¹⁰

Thus, even if the circumstances surrounding the Appellant’s identification "rendered the showup impermissibly suggestive, the evidence is inadmissible only if[,] under the totality of the circumstances, there was a substantial likelihood of irreparable misidentification."¹¹ In its order denying the motion for new trial, the trial court stated that the photo arrays were "completely unnecessary [since] the victim and his brother knew the [Appellant] from previous social interactions [and] they immediately recognized him as the perpetrator and told the police his name."

Here, both B. W. and A. W. testified that they knew the Appellant prior to the incident, and at trial, both identified him as the person who shot the victim. Pretermitting whether the photo arrays were suggestive, B. W. and A. W. each had an independent basis for the identification of the Appellant.¹²

To the extent that the Appellant argues that the photo arrays should have been excluded under Rule 403, the record shows that trial counsel objected to the admission of the photo lineups solely on the basis of foundation and the trial court did not address the admissibility of the photo arrays under Rule 403. Instead, the trial court found there was "no substantial likelihood of irreparable misidentification [by B. W. and A. W.]"

Although there is no indication that the trial court exercised its discretion to consider the admissibility of the photo arrays under Rule 403, that error is harmless.¹³ As stated above, the victim and the eyewitness both knew the Appellant prior to the crime and identified him as the shooter. Based on the foregoing, the Appellant has failed to show that any error in admitting the photo arrays contributed to the jury’s verdict.¹⁴

3. The Appellant contends that the trial court erred in failing to properly instruct the jury on armed robbery and on a felon in possession of a firearm. Specifically, the Appellant argues that the trial court erred in including the language of "immediate presence" which is absent from the indictment for armed robbery, and the State failed to define "felony" as to the possession of a firearm by a felon as charged in Count 4 of the indictment.

OCGA § 17-8-58 states:

(a) Any party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. Such objections shall be done outside of the jury’s hearing and presence.

(b) Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court’s attention as provided in subsection (a) of this Code section.

To demonstrate plain error, the Appellant must show that: "(1) there was no affirmative waiver of the issue; (2) the error was obvious; (3) the instruction likely affected the outcome of the proceedings; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings."¹⁵ "In reviewing a challenge to the trial court’s jury instruction, [the appellate court] view[s] the charge as a whole to determine whether the jury was fully and...