CURRY v. the STATE. , 347 Ga. App. 520 ( 2018 )

FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, J.
NOTICE: Motions for reconsideration m us t be
physically re ceived in our clerk’s office within ten days
of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 4, 2018
In the Court of Appeals of Georgia
A18A1178. CURRY v. THE STATE.
MERCIER, Judge.
Following a jury trial, Terrell Curry was convicted of armed robbery, aggravated
assault, and criminal trespass. He appeals, claiming that the trial court failed to give a
necessary limiting instruction to the jury and erred in excluding certain evidence. He
also argues that he received ineffective assistance of counsel at trial. For reasons that
follow, we affirm.
Viewed in the light most favorable to the jury’s verdicts, see Woodall v. State,
294 Ga. 624 (754 SE2d 335) (2014), the evidence shows that 16-year-old Q. K. was
robbed at gunpoint while walking home from his school bus stop on May 13, 2013.
As Q. K. left the bus stop, he noticed two men walking in front of him, one of whom
was wearing camouflage cargo pants and a red shirt that said “ball game” on the back.
The man in the red shirt “kept looking back” at him, which Q. K. found suspicious.
Someone touched Q. K. from behind, and he turned to find two more men. At that
point, the four men surrounded Q. K., one man demanded his possessions, and the
man in the red shirt pointed a gun at him. Q. K. gave the men his cell phone and wallet,
and the four men fled on foot.
Q. K. reported the incident to the police, providing a description of the men,
including the clothing worn by the gunman. While on patrol later that evening, a police
officer saw a group of young males playing basketball less than one-half mile from the
robbery scene. The group included Curry, who met the physical description of the
gunman and was wearing camouflage cargo pants and a red shirt with “ball game” on
the back. The officer detained Curry and found Q. K.’s cell phone in his pocket. The
memory card from the cell phone, however, was missing. At trial, Q. K. identified
Curry as the gunman, noting that he was “100 percent” certain in his identification.
Curry testified in his own defense at trial. He admitted that he was with the
individuals who robbed Q. K. and that he was the only person present wearing a red
shirt with “ball game” on the back. He also removed the memory card from the cell
phone police seized from his pocket. Nevertheless, he asserted that he was not
involved in the crimes and did not know the group planned to rob anyone. The jury,
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however, found him guilty of armed robbery, aggravated assault, and criminal trespass
(by interfering with Q. K.’s cell phone).
1. Curry first claims that the trial court erred in failing to give a limiting
instruction to the jury regarding his written custodial statement. The record shows that
Curry gave both an oral and written statement to police. And without dispute, he was
not advised of his rights under Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16
LED2d 694) (1966), before giving these statements. The trial court thus prohibited the
State from mentioning the statements at trial “unless and until the defendant opens the
door with respect to any statements or for impeachment purposes.”
Through his trial testimony, Curry indicated that he thought the cell phone seized
from his pocket belonged to one of the other basketball players, who purportedly
asked Curry to hold it during the game. The State subsequently used Curry’s written
statement to impeach this testimony, establishing that he had previously admitted to
police that he knew when he took possession of the phone that it belonged to the
robbery victim. Curry now argues that the trial court should have informed the jury that
it could only consider the written statement for impeachment purposes.
A custodial statement taken in violation of Miranda may, under appropriate
circumstances, be admitted to impeach the credibility of the defendant. See Harris v.
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New York, 401 U.S. 222, 226 (91 SCt 643, 28 LE2d 1) (1971); Babbitt v. State, 337
Ga. App. 553, 554 (1) (a) (789 SE2d 205) (2016). When a statement is admitted for
impeachment, however, “the burden is on the trial court to caution the jury that the
evidence is to be considered only for the purpose of assessing the defendant’s
credibility and not to establish his guilt of the offense for which he is on trial.” Jones
v. State, 243 Ga. 820, 826 (6) (256 SE2d 907) (1979) (citations omitted). 1 See also
Eldridge v. State, 270 Ga. App. 84, 86 (2) (606 SE2d 95) (2004) (“[A] prior
inconsistent statement is admissible for impeachment purposes even if Miranda
warnings were not given, although the trial court in this circumstance has a duty to give
appropriate limiting instructions.”) (citation omitted). Failure to give such an instruction
“could be error.” Jones, supra (citations omitted).
It does not appear that the trial court gave a limiting instruction when admitting
Curry’s statement. But even if the trial court erred in this regard, reversal only results
if the error was harmful. See Jones, supra at 826-827 (6); Scott v. State, 243 Ga. 233
(1) (253 SE2d 698) (1979). And no harm resulted here. After the State cross-examined
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Curry was tried in 2014, after the New Evidence Code took effect in 2013. See
Ga. L. 2011, p. 99, § 101. Although Jones was decided under the prior evidence rules,
we find no reason to disregard its discussion of limiting instructions.
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Curry, he elected to play for the jury a recording of his oral custodial statement to
police. In that statement – as in the written statement – Curry admitted that he was
present during the armed robbery and knew the phone in his pocket belonged to the
person robbed. In light of Curry’s decision to present his oral statement to the jury,
as well as the significant evidence linking him to the crimes, “we cannot say [Curry]
was harmed by the trial court’s failure to give precautionary instructions to the jury
regarding the purpose for which the [impeachment] evidence was introduced.” Scott,
supra (citations omitted).
2. Curry argues that the trial court erred in refusing to admit evidence that, on
the day before Q. K. was robbed, another person dressed in red clothing reportedly
committed an armed robbery in the same neighborhood. According to Curry, this
evidence was admissible to show that someone other than him possibly robbed Q. K.
We disagree.
Generally, a criminal defendant may present relevant and admissible evidence
that another individual committed the crimes charged. See Woodall, supra at 632 (8).
The proffered evidence, however, “must raise a reasonable inference of the
defendant’s innocence, and must directly connect the other person with the corpus
delicti, or show that the other person has recently committed a crime of the same or
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similar nature.” Id. at 632-633 (8) (citation omitted). Evidence that simply “casts a bare
suspicion on another or raises a conjectural inference as to the commission of the
crime by another is not admissible.” Watson v. State, 278 Ga. 763, 771 (10) (604
SE2d 804) (2004) (citation omitted). A trial court exercises its discretion in reviewing
the admissibility of such evidence, and we will not reverse absent an abuse of that
discretion. See Woodall, supra at 632 (8).
Curry’s proffered evidence raises no more than a “bare suspicion” that
someone else committed the crimes here. When questioned outside of the jury’s
presence about the prior incident, the investigating officer testified that police could
not confirm that the other robbery had actually occurred, and he noted that the
individual detained in connection with the alleged prior crime had been released.
Moreover, Curry admitted that he was present during the armed robbery in this case
and was the only person at the robbery scene wearing a red shirt with “ball game”
written on it. Q. K. also testified, without equivocation, that Curry pointed a gun at him
during the robbery.
Given the significant evidence establishing Curry’s involvement in the crimes
against Q. K., an unconfirmed and speculative possibility that someone else wearing
red may have committed a different robbery in the neighborhood on another day
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“does not raise an inference that [Curry] is innocent of” the crimes charged. Jones v.
State, 320 Ga. App. 681, 687 (3) (740 SE2d 655) (2013). The trial court, therefore,
properly excluded the evidence. See Jones, supra; Woodall, supra at 633 (8) (“The
trial court . . . was not required to allow appellant to introduce evidence that was based
purely on rumor, speculation, and conjecture.”); Watson, supra (trial court properly
exercised its discretion in excluding evidence that “was too threadbare to be
admissible”).
3. Finally, Curry asserts that he received ineffective assistance of counsel at trial
because defense counsel failed to object to or move to suppress the victim’s in-court
identification testimony. To prevail on this claim, Curry must show that counsel’s
performance was deficient and that the deficiency “so prejudiced him that there is a
reasonable likelihood that, but for counsel’s errors, the outcome of the trial would
have been different.” Veasey v. State, 311 Ga. App. 762, 766 (3) (717 SE2d 284)
(2011) (footnote and punctuation omitted), disapproved of in part on other grounds
by Toomer v. State, 292 Ga. 49, 54 (2) (734 SE2d 333) (2012).
Q. K. testified that at some point during the robbery investigation, an officer
informed him that an arrest had been made, stating, “I got him.” Citing this testimony,
Curry argues that the officer’s “I got him” statement impermissibly tainted the victim’s
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identification, subjecting it to exclusion under Neil v. Biggers, 409 U.S. 188 (93 SCt
375, 34 LE2d 401) (1972). Q. K., however, was never asked to identify Curry through
a line-up, photographic array, or other pre-trial procedure. The in-court testimony was
the only identification at issue.
As explained by the Georgia Supreme Court, Neil v. Biggers, which addresses
out-of-court identification evidence, “is irrelevant to the admissibility of in-court
identifications.” Hunt v. State, 279 Ga. 3, 4 (2) (608 SE2d 616) (2005) (footnote
omitted). Challenges to in-court identifications generally must be made “through cross-
examination.” Id. (footnote omitted). In this case, the record shows that defense
counsel challenged Q. K.’s in-court identification on cross-examination, raising
questions about his level of attention and ability to see each of the four robbers during
the brief, chaotic incident. Curry has not demonstrated – or claimed – that counsel’s
cross-examination was deficient. And other than his misplaced reliance on Neil v.
Biggers, he has offered no viable basis for objecting to the admissibility of the
identification testimony. See Veasey, supra at 767-768 (3) (b) (victim’s in-court
identification not subject to objection, even though “victim was told that the
perpetrator had been caught”). Under these circumstances, any effort by trial counsel
to exclude the testimony “would have been without merit, and the failure to make a
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meritless objection cannot be evidence of ineffective assistance.” Id. at 768 (3) (b)
(footnote and punctuation omitted).
Judgment affirmed. Dillard, C. J., and Doyle, P. J., concur.
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