Wingate v. State , 296 Ga. 21 ( 2014 )


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  • In the Supreme Court of Georgia
    Decided: October 20, 2014
    S14A1054. JUSTIN MILES WINGATE v. THE STATE.
    NAHMIAS, Justice.
    Justin Wingate appeals his convictions for the murder and armed robbery
    of Michael Wilkins.1 We affirm.
    1.      (a)     Viewed in the light most favorable to the verdict, the evidence
    presented at trial showed the following. Wilkins was Appellant’s godfather;
    1
    The victim was killed on January 23, 2010. On June 8, 2010, a Bibb County grand jury
    indicted Appellant, Adrian Sparrow, Tavion Simms, and Shantia Horton for malice and felony
    murder and armed robbery. Appellant was tried first, from January 31 to February 3, 2011, and the
    jury found him guilty of malice murder and armed robbery. On March 22, 2011, the trial court
    sentenced Appellant to serve two concurrent terms of life imprisonment. On April 13, 2011, he filed
    a motion for new trial. Appellant was then appointed new counsel, who filed an amended motion
    for new trial on February 13, 2013 and another amendment on April 18, 2013. After two hearings,
    the trial court denied the motion as amended on February 20, 2014. Appellant filed a timely notice
    of appeal, and the case was docketed to this Court for the April 2014 Term and submitted for
    decision on the briefs.
    On the third day of Appellant’s trial, Horton accepted a plea agreement under which the
    murder charge against her was nolle prossed and she pled guilty to the reduced charge of robbery by
    force in exchange for her testimony against her co-indictees. Sparrow and Simms were granted
    immunity for their testimony and ordered by the trial court to testify at Appellant’s trial. Sparrow
    testified against Appellant and then entered a guilty plea about a month after Appellant was
    sentenced; the record does not indicate to what charge(s) Sparrow pled guilty. Simms refused to
    testify and was later convicted of 30 counts of contempt of court and sentenced to 600 days in jail
    and a $5,000 fine; the record does not indicate how the indictment against him was resolved.
    Appellant sometimes referred to him as “daddy.” Wilkins had dated Appellant’s
    mother, and he remained in contact with Appellant after the relationship ended.
    On Saturday, January 23, 2010, Shantia Horton drove Appellant, Adrian
    Sparrow, and Tavion Simms from Decatur, where they lived, to Macon, where
    Wilkins lived alone, in her car. Appellant told his friends that he wanted to get
    money from Wilkins. Horton testified that Appellant said his godfather would
    not be home when they arrived, and she did not think that the visit was
    “robbery-type.” Sparrow told the police, however, that Appellant said that he
    was planning to rob his godfather.
    According to Horton’s trial testimony and Sparrow’s statement to the
    police, the following happened once the group arrived at Wilkins’s house.
    Appellant went inside the house alone. After about 20 minutes, Sparrow and
    Simms also got out of the car. Simms went into the house, while Sparrow
    stayed in the driveway. Horton and Sparrow did not hear any gunshots. About
    five minutes later, Appellant, Simms, and Sparrow returned to the car.
    Appellant indicated that he had gotten $14,000, and he gave $3,000 in $100 bills
    to each of his companions. When asked how he got the money, Appellant said,
    “I did what I had to do.” The group then returned to Decatur, arriving around
    2
    4:00 p.m.2
    Two days later, on Monday, January 25, after Wilkins did not show up for
    work or answer his phone or door, a co-worker and a neighbor together called
    the police, who found Wilkins dead in his house. He had been killed by a single
    gunshot to the back of his head as he was going down the stairs toward his
    basement and the door leading to the garage. When the police arrived at the
    house, Wilkins’s Toyota Tundra truck was parked in the driveway, neatly
    covered with a cloth cover; his Land Cruiser was in the garage; and the doors
    to the house were locked. There were no signs of forced entry; the police
    determined that the front door automatically locked when shut. The interior of
    the house was largely undisturbed, and Wilkins’s wallet, high-end electronics,
    keys to the Land Cruiser, and $387 in cash in the top drawer of his dresser all
    appeared untouched. However, his mattress had been moved, as if someone was
    looking under it, and a small safe in his bedroom closet was open and contained
    only papers; it did not appear that the safe had been pried open. At trial,
    2
    In his testimony at trial, Sparrow contradicted the statement he gave to the police in several
    ways. He claimed that Appellant had said that he wanted to drive to Macon to get the money
    Wilkins had promised him for his birthday, that only Appellant went in the house, and that he did
    not know how much money Appellant got. He also said that Appellant did not say he “did what he
    had to do” and that, as the group was driving away, Wilkins came to the door and waved.
    3
    Wilkins’s brother and two neighbors testified that he usually kept cash in a safe
    in the house. Investigators found a cartridge casing from an semi-automatic gun
    near Wilkins’s body, and they later found bullet fragments and a shell casing
    from a 9mm gun under the carpet where Wilkins had been found lying.
    The co-worker who had called the police told them that she had been on
    the phone with Wilkins on January 23 and that he ended the call by saying that
    his godson had arrived. Phone records showed that Appellant’s cell phone was
    present near Wilkins’s home between 2:19 and 2:34 p.m. on January 23, 2010,
    and the GPS in Horton’s car showed directions to a location in Macon.
    Appellant’s roommate testified that when Appellant returned home that night,
    he had a “rubber band of money” and gave the roommate two $100 bills;
    Appellant would not say where he got the money. Four days after the Macon
    trip, Sparrow was found to have $1,800 in $100 bills. Both Horton and the
    roommate testified that Appellant owned a semi-automatic gun.
    (b)   Appellant argues that he should not have been convicted of
    robbing and murdering Wilkins because the evidence presented by the State was
    circumstantial and in some respects supported his defense that he went to see
    Wilkins to get a gift of money, not to steal it, and the evidence also showed
    4
    without contradiction that he had a close relationship with Wilkins. However,
    “‘[i]t was for the jury to determine the credibility of the witnesses and to resolve
    any conflicts or inconsistencies in the evidence.’” Vega v. State, 
    285 Ga. 32
    , 33
    (673 SE2d 223) (2009) (citation omitted). And evidence that Wilkins and
    Appellant had a relationship like father and son is not inconsistent with a finding
    that Appellant killed Wilkins; as a review of this Court’s murder cases would
    demonstrate, even close blood relatives kill each other with unfortunate
    frequency. Our review of the record confirms that the evidence presented at trial
    and summarized above was sufficient to authorize a rational jury to find
    Appellant guilty beyond a reasonable doubt of the crimes for which he was
    convicted. See Jackson v. Virginia, 
    443 U.S. 307
    , 319 (99 SCt 2781, 61 LE2d
    560) (1979).
    2.    Appellant contends that he is entitled to a new trial on the ground
    that the trial court erred in denying his motion to suppress evidence that $1,817
    was found in his pocket after he was arrested on a marijuana possession charge
    at his high school five days after the Macon trip, because the cash was seized as
    a result of a Fourth Amendment violation. We agree that this evidence should
    have been suppressed, but we conclude that the error was harmless.
    5
    (a)   As mentioned previously, the victim’s co-worker told police
    that the victim ended their call on January 23, 2010 by saying that his godson
    had arrived at his house. After learning Appellant’s name from the victim’s
    brother, on January 27, 2010 Macon police investigators went to Southwest
    DeKalb High School, where Appellant was a student, to speak with him. They
    were not able to interview Appellant that day because he had left school early,
    but they notified Deputy T.L. Wortham, a POST-certified law enforcement
    officer working as a school resource officer (SRO), that they wanted to speak
    with Appellant. The next day, Appellant and his mother reported to the
    counseling office because he had been absent from classes without excuse the
    day before. Deputy Wortham went to the counseling office and explained to
    Appellant and his mother that some officers from Macon were coming to speak
    with him. Deputy Wortham then led Appellant and his mother to the SRO
    office. At some point, the officer cuffed Appellant’s hands, explaining to him
    that handcuffing was necessary because the officer had other school duties to
    attend to and because Appellant had left school early without excuse the day
    6
    before.3
    Deputy Wortham then left Appellant unattended and handcuffed in the
    SRO office with the door open while he went to wait at the front security desk
    for the second SRO to arrive at school. When Deputy Wortham returned to the
    SRO office, he found a bag of marijuana on the floor near the stool on which
    Appellant was sitting that had not been there before. Deputy Wortham then
    arrested Appellant for possession of marijuana, searched him incident to the
    arrest, and found $1,817 in his pocket, consisting of 18 $100 bills and a few
    smaller bills.
    (b)     The trial court denied Appellant’s motion to suppress the
    money evidence, holding that it was admissible as the product of a lawful search
    because Appellant was not detained when he abandoned the marijuana that was
    the basis for his arrest and the search of his pocket.4 The court concluded that
    3
    It is unclear from the record whether Appellant was handcuffed before or after Deputy
    Wortham led him to the SRO office. The record also does not indicate whether Appellant’s mother
    stayed with him in the SRO office, although she was at the school when the Macon officers arrived
    later that morning.
    4
    After Appellant’s arrest on the marijuana charge, the Macon police arrived and Appellant
    gave them a statement. In response to a motion to suppress, the State agreed not to use that
    statement at trial. In addition, the trial court granted Appellant’s motion to exclude evidence of the
    marijuana, deeming it irrelevant and prejudicial.
    7
    Appellant had not been seized when Deputy Wortham left him handcuffed in the
    SRO office because he had gone to the office voluntarily and the officer told
    Appellant that he was not under arrest and left the office door open. This
    conclusion was erroneous, because the trial court failed to appreciate how
    Appellant’s freedom to leave the office was hampered by the handcuffs that the
    officer had put on him.
    The State argues that Deputy Wortham’s use of handcuffs did not turn his
    interaction with Appellant into a Fourth Amendment seizure. Many of the cases
    cited to support this argument, however, stand only for the proposition that the
    use of handcuffs does not necessarily convert a second-tier, investigatory stop
    – which is already a seizure, albeit a brief and limited one – into a full-fledged
    arrest. See, e.g., Stringer v. State, 
    285 Ga. 842
    , 844-845 (684 SE2d 590) (2009)
    (“‘[O]fficers may handcuff a suspect during an investigatory stop when such
    action is either reasonable under the circumstances to protect themselves or the
    public or to maintain the status quo.’” (citation omitted)). See also In re D.H.,
    
    285 Ga. 51
    , 53 (673 SE2d 191) (2009) (“There are at least three types of
    police-citizen encounters: verbal communications that involve no coercion or
    detention; brief ‘stops’ or ‘seizures’ that must be accompanied by a reasonable
    8
    suspicion; and ‘arrests,’ which can be supported only by probable cause.”
    (citation and quotation marks omitted)). These cases are inapplicable here
    because there is no evidence that Deputy Wortham had the reasonable suspicion
    that Appellant was or had been engaged in criminal activity that is necessary to
    justify a second-tier stop. See Stafford v. State, 
    284 Ga. 773
    , 774 (671 SE2d
    484) (2008) (explaining that a second-tier stop requires “‘reasonable, articulable
    suspicion that a crime may have been committed’” (citation omitted)). The
    Macon police had simply asked to speak with Appellant; there is no evidence
    that they told Deputy Wortham that there was a pending charge against
    Appellant or any other reason to detain him, nor did the deputy have any
    independent reason to suspect Appellant of a crime before handcuffing him.
    The State also cites cases where we held that the use of handcuffs did not
    convert a first-tier encounter into a seizure when a defendant who voluntarily
    consented to be interviewed was handcuffed during transportation to the police
    station in the back of a police car, because such a measure was reasonable to
    protect officer safety and the handcuffs were removed before the evidence as to
    which the defendant sought suppression was obtained. See Bolden v. State, 
    278 Ga. 459
    , 462-463 (2004). See also Smith v. State, 
    281 Ga. 185
    , 187 (640 SE2d
    9
    1) (2006) (finding no unlawful seizure even assuming the appellant had been
    handcuffed for transport).5
    In this case, however, there is no evidence that cuffing Appellant’s hands
    together was necessary to protect Deputy Wortham or anyone else, or that it
    could serve that purpose after the officer left Appellant behind in the unlocked
    SRO office to go to the front desk. Indeed, Deputy Wortham offered no reason
    for handcuffing Appellant other than explaining that it was the general practice
    for SRO officers at the school to handcuff students they had to leave
    unattended.6 And even assuming that the school police officer’s taking this
    student to wait in the SRO office until Macon police officers arrived to question
    him did not result in Appellant being detained, leaving him there in handcuffs
    did. Appellant may have been free to move about the SRO office, but a
    reasonable person would not feel free to leave, even through an open door, to
    5
    The State also cites a case in which the Court of Appeals noted in dicta that briefly
    detaining at gunpoint two men who were not suspected of illegal activity was “justified by the need
    to protect the safety of the officers and the detained men” because the men were on the sidewalk
    outside an apartment that other officers were lawfully searching. Hunter v. Lee, 
    244 Ga. App. 488
    ,
    491 n.1 (536 SE2d 157) (2000). Even assuming that dicta was correct, it would not lead to a
    different conclusion on the facts of this case.
    6
    If such a practice of routinely handcuffing students who are not reasonably suspected of
    misconduct exists, we do not endorse it.
    10
    walk through his school when he was marked by handcuffs that signify an
    escaped detainee and that cannot easily be removed. See Jones v. State, 
    291 Ga. 35
    , 37 (727 SE2d 456) (2012) (“A consensual encounter may become a seizure
    under the Fourth Amendment when ‘in view of all of the circumstances
    surrounding the incident, a reasonable person would have believed that he was
    not free to leave.’” (citation omitted)). Moreover, unlike the situation in cases
    like Bolden, by leaving Appellant behind in the office, the officer prevented
    Appellant from being in a position to ask for the handcuffs to be removed so
    that he could leave. See 
    Bolden, 278 Ga. at 463
    . Put simply, a reasonable
    person would not “feel free to ‘disregard the police and go about his business’”
    when left in a room in a school wearing handcuffs that the police had locked
    onto him. 
    Jones, 291 Ga. at 37
    (2012) (quoting Florida v. Bostick, 
    501 U.S. 429
    , 434 (111 SCt 2382, 115 LEd2d 389) (1991)).
    Under these circumstances, we conclude that Appellant was seized in
    violation of the Fourth Amendment when Deputy Wortham left him handcuffed
    in the SRO office, even if the officer did not subjectively intend to detain
    Appellant. See State v. Fisher, 
    293 Ga. App. 228
    , 230 (666 SE2d 594) (2008).
    Because Appellant was unlawfully detained at the time he apparently discarded
    11
    the marijuana, the marijuana was the product of an unlawful seizure. See
    Edwards v. State, 
    239 Ga. App. 44
    , 45 (518 SE2d 426) (1999) (“‘There is
    nothing unlawful in the government’s appropriation of abandoned property,
    which does not constitute a search or seizure in the legal sense.’ . . . However,
    if unlawful police conduct coerces the defendant into abandoning the property,
    then suppression of the evidence may be warranted.” (citation omitted)). Thus,
    the marijuana could not be the basis for a legal arrest. See Jones v. State, 
    126 Ga. App. 841
    , 845 (192 SE2d 171) (1972) (explaining that the fruits of an illegal
    search cannot be used as the basis of an arrest). The search of Appellant done
    incident to that illegal arrest was therefore tainted, and the money found in his
    pocket during that search should have been suppressed. See State v. Alexander,
    
    245 Ga. App. 666
    , 668 (538 SE2d 550) (2000) (“Fruits of an unlawful arrest
    may not be introduced into evidence.”); OCGA § 17-5-30 (a).
    (c)    Although the trial court erred in not suppressing evidence of
    the money found in Appellant’s pocket, he is not entitled to a new trial, because
    it is clear that the error was harmless.
    “Before a federal constitutional error can be held harmless, the
    court must be able to declare a belief that it was harmless beyond a
    reasonable doubt. Reversal is required where there is ‘a reasonable
    12
    possibility’ that the improperly admitted evidence contributed to the
    verdict.”
    Bryant v. State, 
    288 Ga. 876
    , 898 (708 SE2d 362) (2011) (citations omitted).
    See also Ramirez v. State, 
    279 Ga. 569
    , 574-575 (619 SE2d 668) (2005)
    (applying this harmless-error test to a violation of the Fourth Amendment).
    At trial, there was no dispute that Appellant and three associates traveled
    to the victim’s house in Macon, that Appellant went inside the house, and that
    he came out with cash. There was evidence from three witnesses that after the
    visit, Appellant had a substantial amount of cash, and two of them testified that
    Appellant gave them several $100 bills; there was also evidence that another of
    Appellant’s co-indictees had $1,800 in $100 bills four days later. The evidence
    that should have been excluded – the $1,817 in cash found on Appellant at his
    school five days after the visit to Macon – was cumulative of the other evidence
    that he had obtained a large amount of money.
    Furthermore, at trial, Appellant did not quibble about how much money
    he got from his godfather; his defense was that whatever money he obtained
    from Wilkins was not a product of a robbery, but rather a birthday present.
    Neither Appellant nor the State argued that the amount of money he got proved
    13
    how he got the money – as a gift or at gunpoint. Because there was no dispute
    (and ample evidence) that Appellant got a substantial amount of cash from the
    victim, and the exact amount he got was immaterial, the trial court’s error in
    admitting additional evidence about the money was harmless beyond a
    reasonable doubt. See 
    Ramirez, 279 Ga. at 574-575
    (concluding that a seizure
    assumed to be unlawful was harmless because identification cards in the seized
    wallet served only to identify the defendant and identity was not an issue at
    trial).
    3.    Finally, Appellant contends that his trial counsel provided
    ineffective assistance by failing to call Milton Brooks to testify at trial, claiming
    that Brooks would have convincingly testified that he saw a woman he did not
    know driving the victim’s vehicle on the day after Appellant came to the
    victim’s house. To prevail on this claim, Appellant must show both that his trial
    counsel provided deficient performance and that, but for the deficiency, there
    is a reasonable probability that the outcome of the proceeding would have been
    different. See Strickland v. Washington, 
    466 U.S. 668
    , 687, 694 (104 SCt 2052,
    80 LEd2d 674) (1984). Appellant has not met this heavy burden.
    In his opening statement at trial, Appellant’s counsel apparently referred
    14
    to Brooks, saying:
    Now, there is evidence in the State’s records, if they present it or
    not, I don’t know, but a neighbor saw someone driving Mr.
    Wilkins’ truck on a Sunday. Supposedly, he was dead on a
    Saturday, and the person allegedly driving that truck is not Mr.
    Wingate or anybody that you will hear from in this trial.
    At the motion for new trial hearing, trial counsel recalled that in discovery there
    was “some mention of someone seeing a vehicle that belonged to the victim”
    being driven by someone else, but he did not recall contacting Brooks and could
    not remember if he subpoenaed him. Trial counsel further testified that he
    expected Brooks might appear for the State, but he also said that he did not
    attempt to hire an investigator to find Brooks. Counsel said that he was focused
    on preparing to cross-examine Appellant’s co-indictees at the time, and his
    failing to secure Brooks’s testimony was an “oversight.”
    At the motion for new trial hearing, Brooks testified that he and Wilkins
    lived within a half-mile of each other and would chat whenever they saw each
    other, and he knew the vehicles Wilkins owned. Brooks claimed that on his way
    to the track on January 24, 2010, the day after Appellant visited Wilkins, he saw
    a woman he did not know driving one of Wilkins’s vehicles on the street where
    Wilkins lived. On direct examination, Brooks first testified that he was not sure
    15
    if he saw the unknown woman driving the Land Cruiser or Tundra, then said
    that he “thought it was the Tundra,” and then said that “[i]t was definitely one
    of [Wilkins’s] vehicles.” On cross-examination, Brooks testified that the
    woman was definitely driving either Wilkins’s Tundra or “one identical to it.”
    The evidence at trial showed that the morning after Brooks claimed to have seen
    the unknown woman driving the victim’s Tundra, the police found that truck
    parked in the victim’s driveway, neatly draped with a cloth cover. Brooks
    described the woman as having long hair and a hat, and said that when he saw
    her, she “looked over and turned her head back,” as if she did not want him to
    see her face. Brooks explained that he could not describe the woman further
    because he “didn’t really pay any attention.”
    Brooks also testified that he never spoke to law enforcement about the
    case and never gave a statement about seeing Wilkins’s vehicle being driven by
    an unknown woman. At trial, however, the State had advised the court that a
    police officer who would not be testifying had spoken to Brooks, and
    Appellant’s trial counsel testified at the motion for new trial hearing that he
    remembered information provided by the State in discovery mentioning
    Brooks’s statement about seeing someone in Wilkins’s vehicle. Indeed,
    16
    Appellant’s ineffective assistance claim rests on the allegation that his trial
    counsel knew about Brooks’s statement to the police before trial but failed to
    pursue that information.
    Trial counsel’s failure to try to locate Brooks to investigate his statement
    and potentially to present his testimony at trial may have been deficient
    performance, but it did not prejudice Appellant, because there is no reasonable
    probability that Brooks’s testimony would have changed the outcome of the
    trial. Brooks’s admission that he was not really paying attention to the incident,
    his equivocation as to which vehicle he saw and whether it was actually
    Wilkins’s or just the same kind as Wilkins’s, and his apparently false testimony
    that he never spoke to the police indicate that even if trial counsel had located
    Brooks and made the risky decision to have him testify at trial, his testimony
    would have been inconsistent and unpersuasive and would not in reasonable
    probability have led to a different outcome. Thus, Appellant’s ineffective
    assistance of counsel claim fails. See Kidd v. State, 
    292 Ga. 259
    , 261-262 (736
    SE2d 377) (2013).
    Judgment affirmed. All the Justices concur.
    17
    

Document Info

Docket Number: S14A1054

Citation Numbers: 296 Ga. 21, 764 S.E.2d 833, 2014 Ga. LEXIS 810

Judges: Nahmias

Filed Date: 10/20/2014

Precedential Status: Precedential

Modified Date: 11/7/2024