Montaviis Merritt v. State , 329 Ga. App. 666 ( 2014 )


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  •                                FOURTH DIVISION
    DOYLE, P. J.,
    MILLER and DILLARD, JJ.
    NOTICE: Motions for reconsideration must be
    physically received in our clerk’s office within ten
    days of the date of decision to be deemed timely filed.
    http://www.gaappeals.us/rules/
    November 14, 2014
    In the Court of Appeals of Georgia
    A14A1358. WILLIAMS v. THE STATE.                                             DO-050 C
    A14A2061. MERRITT v. THE STATE.                                              DO-075 C
    DOYLE, Presiding Judge.
    Jamarri Williams and Montaviis Merritt were each convicted of two counts of
    armed robbery,1 theft by receiving stolen property,2 three counts of aggravated
    assault,3 two counts of battery,4 and possession of a firearm during the commission
    of a felony.5 Williams and Merritt appeal the denial of their subsequent motions for
    1
    OCGA § 16-8-41 (a).
    2
    OCGA § 16-8-7 (a).
    3
    OCGA § 16-5-21 (b) (2).
    4
    OCGA § 16-5-23.1 (a).
    5
    OCGA § 16-11-106 (b) (1). Williams and Merritt also were charged with
    obstruction of a law enforcement officer, but the trial court directed a verdict as to
    new trial, arguing that the trial court erred by denying their motions to suppress
    inherently suggestive on-the-scene showup identifications. Because both cases arise
    from the same facts and involve a joint trial and motion hearings, we have
    consolidated them. We affirm for the reasons that follow.
    Viewed in favor of the verdict,6 the record shows that on October 7, 2006,
    Richard Heidal was walking to a friend’s house in an Atlanta neighborhood after
    consuming five or six beers. While he was en route, two men, one of whom wielded
    a silver handgun, approached Heidal from behind and demanded his wallet. Heidal
    complied and dropped to the ground, face down, where one of the men kicked him,
    and the men then fled. According to Heidal, he observed the men for about 60
    seconds before dropping to the ground.
    Around the same time, Charles Anthony walked Ashley Adiano to her car from
    a bar in an adjacent neighborhood.7 Three men approached the pair, and one of them
    put a handgun to Anthony’s head, ripped his wallet from the chain affixed to his
    that count.
    6
    See Jackson v. Virginia, 
    443 U. S. 307
    , 319 (III) (B) (99 SCt 2781, 61 LE2d
    560) (1979).
    7
    Both Anthony and Adiano consumed “some” drinks that evening.
    2
    pants, and struck him in the mouth with the gun. Anthony fled on foot. One of the
    assailants grabbed Adiano by the hair as she ran towards a nearby pizza restaurant,
    pushed her to the ground, and began beating her. Several employees from the
    restaurant, including David Vance, Michael Kent, and Christopher Shubert, saw the
    assault and raced outside, yelling. The assailants ran, with one of them firing his gun
    as he did so.
    Both victims and all three witnesses recalled that the assailants were young and
    black. Anthony was unable to see the assailants’ faces and recalled only that one of
    them wore a t-shirt. Adiano described one of them as thin and recalled that one of
    them wore a striped, collared shirt. Vance, who was approximately 20 feet from the
    assailants when they ran away, described one as short, one as average, and the other
    as tall. At one point the assailants were directly in front of Shubert, who recalled that
    two of them wore dark shirts. Kent, who was approximately 20 feet from the
    assailants, described one of them as taller than the other two, and he recalled that two
    of them wore dark shirts, and the third wore a blue and white shirt.
    Shortly thereafter, but before dispatch reported the robberies, Officer James
    Bryant saw a young black male run and dive into the side door of a green minivan on
    a major street in the area. As Bryant followed the minivan, it sped up, and Bryant
    3
    contacted his supervisor, who advised him to “back off a little bit” because he had not
    observed any crime. A minute or so later, dispatch reported the robbery and,
    according to Bryant, indicated that the vehicle involved was possibly a green
    minivan.8 Officer Paul Farruggia then spotted the minivan and pulled behind it. The
    minivan pulled over, and four males jumped out of it and fled. Farruggia pursued
    them, and backup officers apprehended Merritt, Williams, and Davii Merritt; the
    fourth man was never caught.9
    Police found a silver handgun on the floor behind the driver’s seat of the
    minivan, which van police later learned was stolen. Police also determined that the
    shell casing recovered at the scene of the second robbery had been fired from the
    handgun recovered from the minivan. Officers did not recover any of the victims’
    wallets or money.
    Police arrested and handcuffed the three suspects and transported them to the
    second scene, where they showed the suspects to the victims and three witnesses. The
    suspects were handcuffed at the time, and police shined a light in their faces for the
    8
    Bryant conceded at trial that dispatch records from that evening do not
    indicate that dispatch mentioned a green minivan.
    9
    Davii Merritt was not tried with Montaviis Merritt or Williams.
    4
    identifications. All three victims and the three restaurant employees identified
    Williams and Montaviis Merritt. Heidal testified at trial that he was “100 percent”
    certain of his identification. Adiano testified that although she had the impression
    before the showup that police had apprehended the suspects, she was able to identify
    them because the showup was approximately ten minutes after the robbery. Anthony,
    who did not see the suspects’ faces during the assault, testified that police told him
    that they had apprehended the suspects before the showup and that because of the
    light shined in the suspects faces, he could not see them, and they could not see him.
    Nevertheless, Anthony identified the suspects based on one of their t-shirts. Shubert
    testified that he did not assume that they were the assailants because they were in the
    police car, but instead was able to visually identify them because he had just seen
    them minutes earlier during the attack. Kent testified that although his identification
    was not based on the fact that the suspects were in a police car, he conceded that he
    “thought perhaps it would be the people” before identifying them.
    Detective Watkins, who assisted in the showup, testified that he asked the
    victims and witnesses whether they could identify the assailants after advising them
    that “we have some suspects that could possibly be involved in the robbery. . . .”
    According to Watkins, the suspects were shown to the victims separately, and officers
    5
    shined a flashlight in the suspects’ faces; the suspects had already been arrested and
    were handcuffed at the time of the showup.
    Montaviis Merritt and Williams filed motions to suppress the showup
    identifications, and the trial court denied the motions following a hearing. The trial
    court entered a directed verdict as to the obstruction charge, and the jury found both
    defendants guilty of two counts of armed robbery, theft by receiving stolen property,
    three counts of aggravated assault, two counts of battery, and possession of a firearm
    during the commission of a felony. This appeal follows the trial court’s denial of their
    subsequent motions for new trial.
    Williams and Merritt contend that the trial court erred by denying their motions
    to suppress the showup identifications of the victims and witnesses, arguing that the
    showups were inherently suggestive.
    A two-part test is used to determine the admissibility of pre-trial
    identifications. First it must be determined whether the procedure used
    was, in fact, impermissibly suggestive. If it was, the court must consider
    the totality of the circumstances to determine whether a very substantial
    likelihood existed of irreparable misidentification.10
    10
    Salazar v. State, 
    245 Ga. App. 878
    , 878-879 (1) (539 SE2d 231) (2000).
    6
    “If[, however,] the answer to the first question is negative, we need not consider the
    second question; conversely, we may immediately proceed to the second question
    and, if the answer thereto is negative, we may entirely pretermit the first question.”11
    A one-on-one showup is inherently suggestive. But both state and
    federal courts have recognized countervailing considerations that can
    render one-on-one confrontations permissible, and even helpful. For
    instance, speedy investigation and prompt identification enhance
    accuracy and reliability, which expedite the release of innocent
    subjects.12
    With regard to the totality of the circumstances analysis, the United States Supreme
    Court has set forth specific factors to consider in determining whether there was a
    substantial likelihood of misidentification:
    the opportunity of the witness to view the criminal at the time of the
    crime, the witness’ degree of attention, the accuracy of the witness’ prior
    description of the criminal, the level of certainty demonstrated by the
    witness at the confrontation, and the length of time between the crime
    and the confrontation.13
    11
    (Footnote and punctuation omitted.) Singleton v. State, 
    324 Ga. App. 141
    ,
    142 (1) (749 SE2d 753) (2013).
    12
    Salazar, 245 Ga. at 879 (1).
    13
    Neil v. Biggers, 
    409 U. S. 188
    , 199-200 (III) (93 SC 375, 34 LE2d 401)
    (1972).
    7
    On review of a trial court’s ruling on a motion to exclude an identification, “evidence
    is construed most favorably to uphold the findings and judgment and the trial court’s
    findings on disputed facts and credibility must be accepted unless clearly
    erroneous.”14
    Here, pretermitting whether the showup was inherently suggestive,15 the trial
    court did not err by concluding that there was no substantial likelihood of irreparable
    misidentification. None of the assailants covered their faces during the assaults, and
    the showup took place immediately after the suspects were apprehended, which
    occurred shortly after the assaults. Heidal, who looked at his assailants for a full
    minute during the assault, was 100 percent certain of his identification. The three
    restaurant employees were close to the assailants when they observed them, and
    14
    Scandrett v. State, 
    293 Ga. 602
    , 603 (2) (748 SE2d 861) (2013).
    15
    See Thomason v. State, 
    268 Ga. 298
    , 305 (3) (486 SE2d 861) (1997)
    (interpreting police officers’ statement “we’ve got him” to witnesses to “merely
    confirm[] that a suspect was being held who matched the lookout description, and that
    [the witnesses] should proceed to either confirm or deny that the proper individual
    had been apprehended”); Butler v. State, 
    276 Ga. App. 161
    , 164 (1) (623 SE2d 132)
    (2005) (“The fact that [the defendant] was in a police car when he was identified does
    not alone render the identification inadmissible.”); Jackson v. State, 
    260 Ga. App. 848
    , 850 (3) (581 SE2d 382) (2003) (“[T]he fact that [the defendant] was surrounded
    by uniformed officers and was handcuffed when the victim identified him does not
    render the identification per se inadmissible.”).
    8
    several of the victims/witnesses were able to describe the assailants’ builds and
    clothing. Although Anthony did not see his assailants’ faces during the attack, he was
    able to identify them by their clothing. And although the three victims had all
    consumed alcoholic beverages before they were attacked, there was no evidence that
    it impaired their ability to identify their assailants or that the restaurant employees’
    ability to observe and identify the assailants was impaired.
    Under the totality of circumstances presented here, the trial court
    was authorized to find that the showup procedure employed by police
    . . . did not give rise to a substantial likelihood of irreparable
    misidentification. The trial court, therefore, did not err in concluding
    that the . . . identifications were sufficiently reliable to be admitted at
    trial.16
    Further, police apprehended the suspects very close to the scene of the
    robberies shortly thereafter in a stolen vehicle, which contained the gun used in the
    second robbery. Therefore, even if the trial court erred by admitting the identification
    16
    (Footnote omitted.) Singleton, 324 Ga. App. at 144 (1). See also Sorrells v.
    State, 
    326 Ga. App. 888
    , 892-893 (1) (755 SE2d 586) (2014) (physical precedent
    only); Fitzgerald v. State, 
    279 Ga. App. 67
    , 68-69 (1) (630 SE2d 598) (2006).
    9
    evidence, “in view of the overwhelming evidence of [the defendants’] guilt, such
    error . . . would be harmless.”17
    Judgment affirmed. Miller and Dillard, JJ., concur.
    17
    See Davis v. State, 
    216 Ga. App. 580
    , 582 (3) (455 SE2d 115) (1995). See
    also McGee v. State, 
    209 Ga. App. 261
    , 262 (1) (433 SE2d 374) (1993), disapproved
    on other grounds, Jones v. State, 
    272 Ga. 900
    , 903 (2), n. 13 (537 SE2d 80) (2000).
    10
    

Document Info

Docket Number: A14A1358; A14A2061

Citation Numbers: 329 Ga. App. 666, 765 S.E.2d 801

Judges: Doyle, Miller, Dillard

Filed Date: 11/19/2014

Precedential Status: Precedential

Modified Date: 11/8/2024