Thomas v. State , 322 Ga. App. 734 ( 2013 )

BOGGS, Judge,

concurring in part and dissenting in part.

I fully concur in Divisions 1, 2 (a) and 3 of the majority opinion, but respectfully dissent to Division 2 (b) because I believe that sufficient evidence supports Thomas’ misdemeanor obstruction conviction.

1. Pursuant to OCGA § 16-10-24 (a), “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” And, “[obstruction of the police in performing their lawful duty includes any act that directly interferes with, impedes, interrupts, or prevents or perverts the public administration of justice.” (Citation omitted.) Panzner v. State, 273 Ga. App. 868, 869 (616 SE2d 201) (2005). Refusing the lawful command of an officer will sustain a conviction under this statute. See, e.g., Arsenault v. State, 257 Ga. App. 456, 457 (1) (a) (571 SE2d 456) (2002). “Conduct constituting obstruction of law enforcement can include arguing with, refusing to cooperate with, lying to, or fleeing from police when they attempt to investigate or prevent a crime or try to effectuate an arrest.” Frasier v. State, 295 Ga. App. 596, 599-600 (2) (b) (672 SE2d 668) (2009). Whether a defendant’s “refusal to obey [a] police officer’s commands ‘had the effect of hindering or obstructing the officer [is] for the trier of fact to decide.’ ” (Citations, punctuation and footnote omitted.) Mayhew v. State, 299 Ga. App. 313, 317 (1) (b) (682 SE2d 594) (2009).

In this case, the officer was authorized to conduct a second-tier Terry detention of Thomas based upon evidence that Thomas closely matched the description of the robber and was seen outside the home of a person known to associate with the robber a few hours later. See Avery v. State, 313 Ga. App. 259, 260 (721 SE2d 202) (2011). Based upon this particularized and objective basis to suspect that Thomas was involved in the robbery, the officer told Thomas, “Hey, come here for a second” or “Come here, sir, let me talk to you for a second.” At the time the officer commanded Thomas to “come here,” he was wearing his full police uniform, his badge was visible, his marked patrol car was parked nearby, and he was approximately six feet away from Thomas.

Simply because we have previously concluded that flight following a police officer’s order to “stop” or “halt” supports an obstruction conviction² does not mean that the absence of these magic words in a police officer’s command renders the evidence insufficient.³ Instead, all that is necessary is “a verbal command within earshot.” Cf. Phillips v. State, 269 Ga. App. 619, 632 (11) (604 SE2d 520) (2004). The word “come” is an imperative in the English language and is used to express a command. In this case, the officer’s use of the imperative “come” as opposed to “stop” or “halt” was reasonable when we examine the context in which it was given. The defendant was walking toward the officer and was about six feet away when the officer ordered him to “come here,” and the use of an alternative imperative such as “halt” or “stop” would not have been as apt a command for an officer seeking to speak with someone to investigate a crime. Additionally, we should not require an officer to use magic words during an unexpected encounter with a robbery suspect.

As we are required to construe the evidence in the light most favorable to the verdict, I would find that the jury was authorized to conclude from the evidence presented that the police officer issued a lawful command to Thomas and that Thomas obstructed the police officer in the lawful discharge of his official duties by fleeing. See Avery, supra. I therefore would affirm Thomas’ conviction for obstruction of a police officer. See Couch v. State, 246 Ga. App. 106, 107 (2) (a) (539 SE2d 609) (2000) (defendant’s failure to come to door at “request”⁴ of his probation officers and conduct in hiding in bushes outside sufficient to support obstruction conviction).

2.1 also disagree with the majority’s conclusion that the evidence was insufficient to support Thomas’ misdemeanor obstruction conviction because this was a first-tier Terry encounter.

In a first-tier encounter, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. There is no threshold requirement and indeed the individual may refuse to answer or ignore the request and go on his way if he chooses, for this does not amount to any type of restraint and is not encompassed by the Fourth Amendment. So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.

(Citation, punctuation and footnote omitted.) Thomas v. State, 301 Ga. App. 198, 200 (1) (687 SE2d 203) (2009). Stated differently, “[a]n officer may ... inquire about possible criminal or suspicious activity during a first-tier police-citizen encounter, without requiring articulable suspicion, ‘as long as the police do not convey a message that compliance with their requests is required.’ ” State v. Cauley, 282 Ga. App. 191, 197 (2) (638 SE2d 351) (2006). When reviewing a trial court’s ruling on a motion to suppress, “[w]e will sustain a trial court’s ruling that an encounter was a first-tier encounter so long as some evidence supports the facts underlying that determination.” Whitmore v. State, 289 Ga. App. 107, 108-109 (657 SE2d 1) (2008). We review a jury’s verdict of guilt under a similar any evidence standard. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

In this case, the jury could have concluded that the officer’s command to “come here” would cause a reasonable person to believe that compliance was required. Walker v. State, 299 Ga. App. 788, 790 (1) (683 SE2d 867) (2009) (officer’s command of “hey, hold on guys, come here, come here” required particularized and objective basis for suspecting criminal activity); Odom v. State, 304 Ga. App. 615, 620 (5) (697 SE2d 289) (2010) (order to “come here” and “stop” required particularized and objective basis for suspecting criminal activity). Compare Owens v. State, 192 Ga. App. 671, 673 (1) (385 SE2d 761) (1989) (concluding encounter was first-tier based in part upon officer’s failure to “summon defendant to their presence”; officer merely “walked up beside defendant and identified themselves as law enforcement officers”).⁵

3. Finally, our opinions in State v. Fisher, 293 Ga. App. 228 (666 SE2d 594) (2008), Porter v. State, 224 Ga. App. 276 (480 SE2d 291) (1997), Ewumi v. State, 315 Ga. App. 656 (727 SE2d 257) (2012), and State v. Dukes, 279 Ga. App. 247 (630 SE2d 847) (2006), cited by the majority, do not require a different result. In both Fisher and Porter, the police officers said nothing to the defendants, who merely fled after seeing the officer. Fisher, supra, 293 Ga. App. at 231; Porter, supra, 224 Ga. App. at 279-280 (2). In Ewumi, a case addressing whether a motion to suppress should have been granted, we concluded that the police officer did not have “an objective, articulable suspicion of criminal activity to warrant a second-tier detention” and Ewumi acted within his rights to avoid a first-tier encounter. 315 Ga. App. at 660-661 (1) and 662-663 (1) (a). Consequently, any discussion in that case of the defendant’s right to refuse the officer’s request to speak with him is nonbinding dicta that should not be applied here. Finally, in Dukes, we also concluded that the defendant was entitled to flee from a first-tier encounter because the police lacked “reasonable suspicion of criminal activity needed for a second-tier detention prior to [the defendant’s flight.” 279 Ga. App. at 249-250. As in Black, supra, the encounter was first-tier because the police officers approached the defendant and asked numerous questions beginning with the word “if,” indicating that compliance was not mandatory. Id. at 247-248.

Decided July 9, 2013. Amy L. Ihrig, Jennifer R. Burns, for appellant. Larry Chisolm, District Attorney, Meg E. Heap, Arvo H. Henifin, Assistant District Attorneys, for appellee.

For all of the above-stated reasons, I respectfully concur in part and dissent in part.

I am authorized to state that Presiding Judge Barnes and Judge Branch join in this writing.

2 See, e.g., In the Interest of E. C., 292 Ga. App. 798, 800 (665 SE2d 896) (2008); Sprinkles v. State, 227 Ga. App. 112, 113 (1) (488 SE2d 492) (1997).

3 While the majority claims it is “not introducing a requirement that officers intone magic words,” the practical effect of its approach will be exactly that.

4 As demonstrated by our opinion in Couch, the majority’s attempt to draw a distinction between a request and an order is a distinction without a difference. See also State v. Cauley, 282 Ga. App. 191, 197 (2) (638 SE2d 351) (2006) (proper issue is whether compliance with request is required).

5 The majority’s reliance upon Black v. State, 281 Ga. App. 40 (635 SE2d 568) (2006), to conclude this case involves a first-tier encounter is misplaced. In Black, the police approached the defendant and “asked if they could talk to him for a second.” (Punctuation omitted; emphasis supplied.) Id. at 44 (1). The use of the word “if” does not indicate a command; the word “if” is a subordinate conjunction used to link independent and dependent clauses, not an imperative. Additionally, the officers approached the defendant instead of ordering the defendant to come to them.