Willis v. the State.

• Decision Date: 26 April 2011
• Docket Number: No. A11A0540.,A11A0540.
• Citation: 710 S.E.2d 616,309 Ga.App. 414
• Parties: WILLISv.The STATE.
• Court: Georgia Court of Appeals

309 Ga.App. 414

710 S.E.2d 616

11 FCDR 1388

WILLIS

v.The STATE.

No. A11A0540.

Court of Appeals of Georgia.

April 26, 2011.

Kirby Clements Jr., Decatur, for appellant.Paul L. Howard, Jr., Dist. Atty., Peggy Ann Katz, Asst. Dist. Atty., for appellee.ELLINGTON, Chief Judge.

A Fulton County jury found Dexter Willis guilty beyond a reasonable doubt of three counts of armed robbery, OCGA § 16–8–41(a). Following the denial of his motion for a new trial, Willis appeals, contending that the evidence was insufficient and that the trial court erred in denying his motion to sever the offenses, in denying his motion to exclude the victims' identification, in admitting testimony about a handgun, in denying his motion for a mistrial based on prosecutorial misconduct, in instructing the jury, in imposing a sentence of life imprisonment without parole, and in denying his motion for a new trial based on ineffective assistance of counsel. For the reasons explained below, we affirm.

1. Willis contends that the evidence was insufficient. On appeal from a criminal conviction, the appellate court

view[s] the evidence in the light most favorable to the verdict[,] and an appellant no longer enjoys the presumption of innocence. [The appellate court] determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), 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, [the appellate court] must uphold the jury's verdict.

(Citations omitted.) Rankin v. State, 278 Ga. 704, 705, 606 S.E.2d 269 (2004).

Viewed in the light most favorable to the verdict, the evidence shows that, on three separate occasions within a three-week period, Willis used a revolver to rob a solitary pedestrian during daylight hours, all in the same part of the city.¹

On the morning of July 3, 2002, the first victim was standing alone at a bus stop near the Maple Creek Apartments on Bolton Road when a man approached him, put a .38 caliber revolver to his head and told him to throw his money on the ground. The victim saw that there were bullets in the cylinder of the robber's handgun. After taking the victim's money, the robber told the victim to walk away and then fled on foot. On July 9, 2002, the victim looked through two books of mug shots, saw a photograph of Willis in the second book, and identified him as the robber.

On the morning of July 14, 2002, the second victim was walking toward a bus stop on Childress Drive at Landrum Drive when a man approached her, pointed a black revolver at her, and demanded her purse and jewelry. After taking her property, the robber fled on foot. Three weeks after being robbed, the victim identified Willis as the robber in a six-person photo array.

At about 6:30 p.m. on July 25, 2002, when it was still daylight, the third victim was walking alone on Venetian Road near Cascade Road when a man approached her, put a black revolver in her face, and told her to drop her purse and all of her money on the ground. He picked up her purse, which contained her cell phone, told her to leave in one direction, and then fled on foot in the opposite direction. Three days after being robbed, the victim identified Willis as the robber in a photo array.

On July 26, 2002, the first victim saw Willis, whom he recognized as the man who robbed him, walking in the same neighborhood as the robbery and then leaving the area in a black Chevrolet Blazer. The victim called the police and, as he stood talking to a police officer about his report, Willis drove past them in the Blazer, and the victim pointed out the vehicle to the officer. Officers stopped the Blazer a short distance away. In conducting a pat-down for officer safety, an officer found a 9mm handgun in Willis's waistband. Officers then took Willis to where the victim was waiting, and the victim identified Willis as the robber. After arresting Willis, officers inventoried the contents of the vehicle and found a loaded .38 caliber revolver and a cell phone. An officer determined that the cell phone belonged to the third victim.²

At trial, each of the victims identified Willis as the man who robbed them.

The evidence was sufficient for the jury to find Willis guilty beyond a reasonable doubt of using a handgun to rob each of the victims. McLester v. State, 249 Ga.App. 71, 75(3)(a), 547 S.E.2d 709 (2001).

2. Willis contends that the trial court erred in denying his motion to sever the offenses. Willis argues that the failure to sever the offenses prejudiced him because it allowed the jury to use his possession of the third victim's cell phone as evidence that he was the person who robbed the first and second victims.

A trial court engages in a two-part inquiry when considering a motion to sever.

A trial court must first determine whether the offenses are joined solely because they are of the same or similar character. If they are, severance is mandatory. If they are not, the court must then decide whether severance would promote a just determination of guilt or innocence as to each offense.... With regard to the first inquiry, offenses have not been joined solely because they are of the same or similar character when evidence of one offense can be admitted upon the trial of another, i.e., when they are so strikingly similar as to evidence a common motive, plan, scheme or bent of mind. Thus, severance is within the trial court's discretion when the offenses are so similar as to show a common scheme or plan. Such similarity may be manifest by close connections between the time, location, and modus operandi of the offenses.... With regard to the second inquiry, the trial court considers whether, in light of the number of offenses charged and the complexity of the evidence, the fact-trier will be able to distinguish the evidence and apply the law intelligently to each offense.

(Citations, punctuation and footnotes omitted.) Fielding v. State, 299 Ga.App. 341, 342–343(1), 682 S.E.2d 675 (2009). In such a case, we review the trial court's determination for abuse of discretion. Gadson v. State, 223 Ga.App. 342, 344(3), 477 S.E.2d 598 (1996).

As set forth above, the three robberies in this case took place in a limited geographical area within four weeks of each other. Each involved a man approaching a lone pedestrian during the daytime, pointing a revolver at the victim, and demanding that the victim throw his or her money and property on the ground, and then fleeing on foot. The modus operandi of the robberies was strikingly similar, allowing the trial court the discretion to deny the motion to sever. As the trial court observed, the evidence was far from complex and posed no significant risk of jury confusion. Therefore, the trial court did not abuse its discretion in denying Willis's motion to sever. Dickerson v. State, 304 Ga.App. 762, 765(1), 697 S.E.2d 874 (2010); Fielding v. State, 299 Ga.App. at 343(1), 682 S.E.2d 675. 3. Willis contends that the trial court erred in denying his motion to exclude the in-court identification by each of the victims as being tainted by unduly suggestive pretrial identifications.

(a) A conviction based on eyewitness identification at trial following a pretrial identification will be set aside only if the pretrial identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Waddell v. State, 277 Ga.App. 772, 777(4), 627 S.E.2d 840 (2006); Selbo v. State, 186 Ga.App. 779, 781, 368 S.E.2d 548 (1988). Even if a pretrial identification is tainted by an impermissibly suggestive identification procedure, a subsequent in-court identification is admissible if it does not depend upon the prior identification but has an independent origin. Doublette v. State, 278 Ga.App. 746, 749(1), 629 S.E.2d 602 (2006); Selbo v. State, 186 Ga.App. at 781, 368 S.E.2d 548. Here, the record shows that each of the victims' identification of Willis had such an independent origin. Each of the victims observed Willis face to face in full daylight and identified his photograph within days of being robbed. In addition, the first victim identified Willis as he drove by in a car. Accordingly, the trial court did not err by denying Willis's motion to exclude the identification testimony. Doublette v. State, 278 Ga.App. at 749(1), 629 S.E.2d 602; Selbo v. State, 186 Ga.App. at 781, 368 S.E.2d 548.

(b) In addition, to the extent Willis contends that the officers lacked a legally sufficient basis to stop his vehicle and, therefore, that the first victim's pretrial and in-court identification were the products of a violation of his rights under the Fourth Amendment, the record shows that the officers had facts sufficient to stop Willis after the victim literally pointed out Willis to an officer as the person who robbed him. Grabowski v. State, 234 Ga.App. 222, 225(4), 507 S.E.2d 472 (1998). Accordingly, this argument lacks merit.

4. Willis contends that the trial court erred in overruling his objection to an officer's testimony that he and another officer recovered a 9mm handgun from Willis when they arrested him. Willis contends that the State offered perjured testimony about the weapon, either at a pretrial hearing on his motion to suppress or at trial, because one officer testified at the hearing that he patted down Willis and found the gun, while a different officer testified at trial that he patted down Willis. Our review of the record suggests that there is no basis for concluding that either officer committed perjury. Rather, it appears that the memory of one of the officers may have faded as to this detail during the two years that elapsed between Willis's arrest and trial. Although the discrepancy may have...