Harris v. the State , 332 Ga. App. 789 ( 2015 )

FOURTH DIVISION
BARNES, P. J.,
RAY, and MCMILLIAN, 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/
July 7, 2015
In the Court of Appeals of Georgia
A15A0318. HARRIS v. THE STATE.
BARNES, Presiding Judge.
Following the denial of his motion for new trial, Haniyf A. Harris appeals his
armed robbery conviction and contends that the evidence was insufficient to sustain
his conviction, and that the trial court erred in denying his motion to suppress the
photographic lineup and in admitting similar transaction evidence. Following our
review and discerning no reversible error, we affirm.
1. Harris first challenges the sufficiency of the evidence supporting his armed
robbery conviction. On appeal from a criminal conviction, we view the evidence in
the light most favorable to the verdict in accordance with the standard set forth in
Jackson v. Virginia, 443 U. S. 307 (99 S. Ct. 2781, 61 LE2d 560) (1979). “We do not
weigh the evidence or determine witness credibility, but only determine if the
evidence was sufficient for a rational trier of fact to find the defendant guilty of the
charged offense beyond a reasonable doubt.” (Footnote omitted.) Clark v. State, 283
Ga. App. 884, 886 (1) (642 SE2d 900) (2007).
So viewed, the evidence demonstrates that on May 3, 2010, at approximately
11:30 a.m., a female caller ordered a pizza from Papa John’s to be delivered to
Apartment M-11 at a particular street address located in Pendleton Homes apartment
complex. When the delivery driver approached M-11, a man wearing a red baseball
cap and red sweatshirt with a hood walked up, pointed a gun at her, and demanded
money. She gave the robber her money, approximately $95, and the robber then told
her to leave. The driver went back to her car and called her boss and police.
Police discovered that apartment M-11 was vacant, but they were able to trace
the number the call was placed from to a sister of Harris’ girlfriend. Although initially
uncooperative, the sister admitted that the number belonged to a cell phone used by
Harris, and that he sometimes stayed with their other sister in Pendleton Homes.
When police questioned the other sister, she showed them a red sweatshirt that
belonged to Harris that matched the description of the one worn by the robber. Police
also interviewed Harris’ girlfriend, who said that she and Harris were at her sister’s
apartment in Pendleton Homes the day of the robbery. She told police that at some
point during the morning, Harris, who at the time was wearing a black shirt, left the
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apartment and said he needed to get some money. When he returned at approximately
3:00 p.m., Harris was wearing a red sweatshirt and had approximately $100. Three
days after the robbery, the driver identified Harris from a six-picture line-up.
Although Harris challenges the sufficiency of the evidence against him, the
evidence as outlined above was sufficient for a rational trier of fact to find Harris
guilty of the armed robbery. See former OCGA § 24-4-8 (“[T]estimony of a single
witness is generally sufficient to establish a fact.”)1 It was the role of the jury, not this
Court, “to determine the credibility of the witnesses and to resolve any conflicts or
inconsistencies in the evidence.” (Citation and punctuation omitted.) Farris v. State,
290 Ga. 323, 324 (1) (720 SE2d 604) (2012). This evidence was sufficient to sustain
Harris’ conviction of armed robbery.
2. Prior to trial, Harris moved to suppress the identification of him made by the
victim, arguing that the photographic lineups used by police were impermissibly
suggestive. The trial court denied that motion, and on appeal Harris contends that this
ruling was error. We disagree.
We review a trial court’s denial of a motion to suppress by construing the
evidence most favorably to upholding the court’s findings and judgment, and we
1
Harris’ trial was held in 2011, so our former evidence code applies.
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accept the court’s ruling unless clearly erroneous. Karim v. State, 244 Ga. App. 282,
283-284 (2) (535 SE2d 296) (2000).
On appeal, we will reverse a conviction based on a pretrial photo
identification if the photographic lineup was so impermissibly
suggestive that there exists a very substantial likelihood of irreparable
misidentification. An identification procedure is impermissibly
suggestive only if it leads the witness to an all but inevitable
identification of the defendant as the perpetrator, or is the equivalent of
the authorities telling the witness, “This is our suspect.”
(Punctuation and footnotes omitted.) Russell v. State, 288 Ga. App. 372, 373 (2) (654
SE2d185) (2007). “The taint which renders an identification procedure impermissibly
suggestive must come from the method used in the identification procedure.”
(Citation and punctuation omitted.) Davis v. State, 286 Ga. 74, 76 (2) (a) (686 SE2d
249) (2009). We need not consider the issue of irreparable misidentification unless
the array is impermissibly suggestive. Watley v. State, 281 Ga. App. 244, 245 (1) (635
SE2d 857) (2006).
In denying Harris’ motion to suppress, the trial court found that the lineup was
not impermissibly suggestive and that the six individuals in the photo lineup were
men of similar age, skin tone, facial features, and hairstyles. Contrary to Harris’
assertion on appeal, the fact that three of the men in the photograph lineup had facial
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hair, and the victim described the robber as having no facial hair, does not make the
lineup impermissibly suggestive. Miller v. State, 270 Ga. 741, 743 (2) (512 SE2d
272) (1999) (lack of facial hair on most of the lineup participants did not make lineup
impermissibly suggestive).
Additionally, despite Harris’ assertion that his number two position on the top
row of the lineup was suggestive, “it cannot be assumed that the position of [Harris’]
photograph in the array gave the picture greater prominence and therefore increased
the likelihood of its selection.” Daniels v. State, 207 Ga. App. 689, 692 (4) (428 SE2d
820) (1993). His photograph was the similar size, style, and content as the other five
photographs. Neither did his position lead inevitably to Harris’ identification. See
Thompson v. State, 240 Ga. App. 26, 31-32 (7) (521 SE2d 876) (1999) (although the
pictures of the defendant and one other individual in the lineup were slightly smaller
than the other pictures, and not all of the men in the lineup had facial hair, photo array
was not impermissibly suggestive). Accordingly, we find that the trial court properly
admitted the pretrial identification evidence.
3. We further find that the trial court did not err in admitting similar transaction
evidence of a 2004 robbery by intimidation conviction. Under Georgia law applicable
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at the time of Harris’ trial,2 evidence of a similar transaction may be admitted if the
State shows that
(1) it seeks to introduce the evidence not to raise an improper inference
as to the accused’s character, but for some appropriate purpose which
has been deemed to be an exception to the general rule of
inadmissibility; (2) there is sufficient evidence to establish that the
accused committed the independent offense or act; and (3) there is a
sufficient connection or similarity between the independent offense or
act and the crime charged so that proof of the former tends to prove the
latter.
(Citation and punctuation omitted.) Matthews v. State, 294 Ga. 50, 52 (751 SE2d 78)
(2013).3 In evaluating the trial court’s ruling, we accept its factual findings unless it
2
As noted supra in footnote 1, Georgia’s old Evidence Code applies in this
appeal. Under the new Evidence Code, admissibility of this category of evidence is
governed by OCGA § 24-4-404 (b).
3
Georgia’s new Evidence Code, effective January 1, 2013, provides that
[e]vidence of other crimes, wrongs, or acts shall not be admissible
prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, including,
but not limited to, proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
OCGA § 24-4-404 (b).
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was clearly erroneous and review its decision to admit the similar transaction
evidence under the abuse of discretion standard. Reed v. State, 291 Ga. 10, 12-15 (3)
(727 SE2d 112) (2012).
The State filed notice of its intent to present similar transaction evidence of a
2004 robbery by intimidation guilty plea to show course of conduct, bent of mind and
common scheme. At the hearing, one of the arresting officer’s testified that on April
4, 2004, he responded to a robbery call at a Pizza Hut. Two restaurant employees
were taking trash to a dumpster located behind the restaurant when two men, one
holding a gun, approached them and ordered them back into the store. The armed
robber brandished the gun at the manager, ordered her to open the safe, and after she
complied, the two men, who were wearing dark clothing and had bandanas partially
covering their faces, took the money from the safe and fled. Using a tracking dog,
police apprehended the robbers, who were hiding behind a dumpster. Bags of money
from the robbery, a gun, and other items related to the robbery, including bandanas,
were recovered nearby. Harris was identified as one of the men and later pled guilty
to robbery by intimidation.
The trial court found that the State was admitting the similar transaction for the
proper purpose of showing bent of mind and course of conduct, and also that the prior
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incident was sufficiently similar because in both instances Harris lay “in wait for the
victims, each of whom was an employee of a pizza restaurant. Both robberies
involved threats and the use of a handgun to induce pizza restaurant employees to
surrender a quantity of cash.” Although Harris argues that the crimes were “vastly
different” because one occurred at the restaurant and the present crime occurred off-
site, when determining whether evidence of a similar transaction is admissible “the
proper focus is upon the similarities between the incidents and not upon the
differences. [Cit.]” Daniels v. State, 281 Ga. 226, 228 (1) (637 SE2d 403) (2006). See
also Faniel v. State, 291 Ga. 559, 562 (2) (731 SE2d 750) (2012). We cannot say that
the trial court abused its discretion in ruling that evidence of the prior robbery by
intimidation conviction was admissible under the law applicable at the time of Harris’
trial.
Judgment affirmed. Ray and McMillian, JJ., concur.
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