Jackson v. the State , 335 Ga. App. 500 ( 2016 )

FIRST DIVISION
DOYLE, C.J.
PHIPPS, P.J. and PETERSON, J.
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
January 25, 2016
In the Court of Appeals of Georgia
A15A1883. JACKSON v. THE STATE. PE-038C
PETERSON, Judge.
Leandrew Jackson appeals his convictions for four counts of aggravated
assault, two counts of armed robbery, and one count of burglary. He raises three
enumerations of error: (1) the trial court erred by letting a witness make an in-court
identification of him; (2) there was insufficient evidence to support his convictions;
and (3) the trial court erred in issuing a modified Allen charge that told jurors that
“the case will not go away with a hung verdict .”
We find these arguments to be without merit and affirm. Although Jackson
complains that the witness should not have been permitted to identify him at trial due
to various factors, including that the witness identified someone else as the
perpetrator in a police photo lineup shortly after the crime, challenges to in-court
identifications go to the weight and credibility, not the admissibility, of the
identification. A thorough review of the record shows sufficient evidence to uphold
Jackson’s convictions. Finally, the judge’s comment in giving the Allen charge is not
cause for reversal because Jackson did not preserve his objection and the remark did
not constitute error.
The charges against Jackson were based on two separate incidents. The trial
evidence showed that in the first incident, on the evening of December 1, 2011,
Charles Mapp was performing his duties as a driver for a Medicaid transportation
service . Mapp had just dropped off his last client for the day and was getting back
into his van when he noticed two men approaching his vehicle from behind . The two
men told Mapp to “give it up,” and one produced a gun . Mapp tried to give them
what he had in his pockets: change, his wallet, and his cell phone . The men pulled
Mapp out of the van, and kicked and punched him . One struck him over the head
with the gun .
On December 5, 2011, police showed Mapp a photographic lineup that did not
contain a photo of the defendant . He circled one of the photos, indicating he was 80
percent sure that person was the man who had wielded the gun . The person he
identified was not involved in the incident . At the 2013 trial in this case, Mapp
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identified Jackson as the person with the gun . Jackson’s trial counsel objected to
Mapp’s in-court identification of Jackson, saying, “There’s been no foundation that
he’s identified anybody before,” but the trial court overruled him . A crime scene
investigator also testified at trial, saying that a fingerprint found on the interior side
of the driver’s side window of Mapp’s van was left by Jackson .
The evening after Mapp was accosted, Donald Rooks and Stacy Allgood were
working at a customer’s townhome, performing carpet repair and cleaning . When
Rooks went downstairs to get equipment, a man attacked him with a hammer . A
second man appeared, struck Rooks in the head with a gun, and pointed the gun at
Rooks’ face . Rooks threw his wallet, from which one of the men took five dollars .
Rooks was not able to identify either of the two men .
At some point, hearing Rooks calling for help, Allgood came downstairs and
saw Rooks scuffling with the man with the hammer . Someone struck Allgood in the
back of the head with what Allgood believed was a gun . Rooks’ initial attacker
struck Allgood in the head with a hammer . The man with the gun told Allgood to
empty his pockets, turning the gun toward himself so that Allgood could see the size
of the gun . Allgood refused, explaining later that he had “a pretty good bit of money”
in there . The second man again hit Allgood in the head with a gun .
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Allgood did not identify anyone as his attacker in an initial police photo lineup
on December 5, 2011, but he was able to identify Jackson in a similar photo lineup
the following month, saying he was 87 percent sure . At trial, Allgood identified
Jackson as the man with the gun . He testified that his lack of certainty during the
second photo lineup was due to not knowing the height of the person in the photo or
whether the person who attacked him was part of the photo lineup . He testified that
he was sure of his identification at trial based on Jackson’s eyes .
Based on the Mapp incident, Jackson was indicted for armed robbery and
aggravated assault . Based on the incident at the townhome, the indictment charged
Jackson with armed robbery, burglary, and three counts of aggravated assault . A jury
found Jackson guilty on all charges .
1. Because Jackson’s sufficiency argument is based in part on his argument
that the trial court erred in letting Mapp make an in-court identification, we first
address the issue of the identification. Jackson argues that the trial court erred in
allowing Mapp to make an in-court identification that was “unnecessarily suggestive
and conducive to irreparable mistaken identification “ because Mapp was unable to
get a good look at his assailants and he identified another individual as his attacker
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in a police photo lineup that took place four days after the incident. Jackson’s
argument is without merit.
The admission of pretrial identification procedures like police photo lineups
is subject to court review for reliability, considering factors such as the witness’s
opportunity to view the defendant at the time of the crime. See Neil v. Biggers, 409
U.S. 188, 199 (93 S. Ct. 375, 34 LE2d 401) (1972). However, appellate courts do not
review in-court identifications in this manner, as they occur under the immediate
supervision of the trial court. See Ralston v. State, 251 Ga. 682, 683 (2) (309 SE2d
135) (1983). “Challenges to in-court identifications must be made through cross-
examination.” Hunt v. State, 279 Ga. 3, 4 (2) (608 SE2d 616) (2005) (citation
omitted). Jackson’s challenges to Mapp’s in-court identification, including the
inconsistency in Mapp’s in-court and pre-trial identifications, go to the weight and
credibility of Mapp’s testimony, not to its admissibility. See Sherman v. State, 225
Ga. App. 869, 872 (2) (485 SE2d 557) (1997). See also Pitts v. State, 323 Ga. App.
770, 772 (1) (747 SE2d 699) (2013) (problematic aspects of an in-court identification
go to the witness’s credibility, which is solely a question for jury determination). “A
line-up identification, or identification from a group of photographs, is not a
prerequisite to every in-court identification.” Ralston, 251 Ga. at 684 (2) (quoting
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Puckett v. State, 233 Ga. 449, 451 (211 SE2d 740) (1975)). Given that Jackson’s
counsel had the opportunity to cross-examine—and, indeed, did cross-
examine—Mapp about his in-court identification of Jackson and his failure to identify
him in the pretrial photo lineup , the admission of the in-court identification is not
cause for reversal.
2. Jackson challenges all seven of his convictions as unsupported by
sufficient evidence . When appellate courts review the sufficiency of the evidence,
they do not “re-weigh the evidence or resolve conflicts in witness testimony” but
instead defer “to the jury’s assessment of the weight and credibility of the evidence.”
Greeson v. State, 287 Ga. 764, 765 (700 SE2d 344) (2010) (citation omitted). We
apply the standard of Jackson v. Virginia, 443 U.S. 307, 319 (99 S. Ct. 2781, 61 LE2d
560) (1979), determining whether, “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt” (citation omitted; emphasis in
original).
Count one charged Jackson with armed robbery of Mapp . OCGA § 16-8-41(a)
provides that a person commits armed robbery when, “with intent to commit theft, he
or she takes property of another from the person or the immediate presence of another
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by use of an offensive weapon[.]” Count two, also arising from the incident involving
Mapp, charged Jackson with aggravated assault , which under OCGA § 16-5-21(b)(2)
is predicated on a person assaulting another with a deadly weapon or any object that,
“when used offensively against a person, is likely to or actually does result in serious
bodily injury[.]” Jackson bases his challenges to these two counts on the notion that
Mapp’s identification of him should be excluded, but, as explained above, the
admission of this evidence was not improper. Given that “[t]he testimony of a single
witness is generally sufficient to establish a fact,” OCGA § 24-14-8, Mapp’s
testimony was sufficient to support the convictions on counts one and two. The State
also introduced evidence that Jackson’s fingerprint was found on Mapp’s van,
supporting its case that Jackson was one of the men who accosted Mapp. In the light
of this evidence, the jury was authorized to find that Jackson committed both armed
robbery and aggravated assault on Mapp.
The other convictions turn on Allgood’s identification of Jackson as the man
with the gun. Although Jackson does not challenge the admissibility of Allgood’s in-
court identification of him, he claims that the evidence against him is insufficient
because Rooks was unable to identify him and Allgood initially failed to identify him
in a police photo lineup and expressed some uncertainty in identifying him in a
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second photo lineup. However, as noted above, the testimony of a single witness is
generally sufficient to establish a fact. OCGA § 24-14-8. Allgood’s identification of
Jackson as the man with the gun, coupled with Rooks’ description of events, is
sufficient evidence to authorize the jury’s verdict of guilty on the charges stemming
from the townhouse incident, including burglary. See OCGA § 16-7-1(b) (a person
commits the offense of burglary when, “without authority and with the intent to
commit a felony or theft therein,” he enters or remains within the dwelling house of
another).
3. Jackson also argues that the trial court erred in issuing a modified charge
under Allen v. United States, 164 U.S. 492 (17 S. Ct. 154, 41 LE 528) (1896). He
complains about one particular remark the judge made to the jury. During its
deliberations, the jury asked multiple questions, including asking for equipment to
listen to the recording of one of the 911 calls that had been put into evidence and also
asking if it might review a witness’s testimony . The judge allowed the 911 call to be
played for the jury in the courtroom and denied the jury’s request to review the
witness’s testimony . Sometime later, after the jury had deliberated for two and a half
hours in the morning and an hour and 35 minutes in the afternoon, the jury indicated
that it had reached a guilty verdict on two of the seven counts but was hung 11-1 on
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the other five . Defense counsel said he was against an Allen charge, but the trial court
decided to give one at the prosecutor’s request .
While giving the Allen charge, the trial court said, “I want you to take a look
at it, because we spent a day and a half trying it. These cases, the case will not go
away with a hung verdict. There are many ways it can go away, jury verdict is one
and there are many other ways .” The judge continued with some additional remarks
before sending the jury out to resume deliberations. The judge then asked whether
there were any “exceptions to the, quote, hung jury charge as given by the Court,” to
which defense counsel replied, “No exception, Your Honor. “ The jury subsequently
returned guilty verdicts on the remaining counts . It is not clear from the record how
long jurors continued to deliberate after receiving the Allen charge, but it appears to
have been less than one hour and 18 minutes, perhaps considerably less . At defense
counsel’s request, the judge polled the jurors, with each affirming their assent to the
verdict .
On appeal, Jackson complains that the trial court’s comment that the case
would not “go away” placed undue pressure on the hold-out juror. He argues that the
extra comment conveyed the judge’s opinion that there was enough evidence to retry
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the case and possibly implied that a guilty verdict was inevitable.1 Considered along
with other factors, the defense argues, the judge’s comment was coercive.
We are constrained in our review of the judge’s comment, however, given that
the defendant failed to lodge any specific objection to it. Asked by the judge whether
he took any exceptions to the Allen charge, Jackson’s counsel said he had none.
Georgia law requires a criminal defendant to inform the court of any specific
objection to a jury instruction and the grounds for such objection before the jury
retires to deliberate. See Carruth v. State, 290 Ga. 342, 347 (6) (721 SE2d 80) (2012).
Otherwise, appellate review is precluded under OCGA § 17-8-58(b) “unless such
portion of the jury charge constitutes plain error which affects substantial rights of
the parties.” See id. (applying plain error review where defendant objected at the
charge conference when the court informed counsel it would not give a requested
instruction on mutual combat but failed to object to the actual jury charge as given).
Our court has applied plain error review under OCGA § 17-8-58(b) when a defendant
did not object to the content of the Allen charge. See Callaham v. State, 317 Ga. App.
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Jackson does not cite OCGA § 17-8-57, which declares it “is error for any
judge, during any phase of any criminal case, to express or intimate to the jury the
judge’s opinion as to whether a fact at issue has or has not been proved or as to the
guilt of the accused.” The complained-of remark did not constitute an expression of
opinion as to the facts of the case or the defendant’s guilt.
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513, 515 (1) (732 SE2d 88) (2012). Under that standard, the court must consider
“whether the instruction ... was erroneous, whether it was obviously so, and whether
it likely affected the outcome of the proceedings.” Id. (quoting State v. Kelly, 290 Ga.
29, 33 (1) (718 SE2d 232) (2011)). If it answers all three of these questions in the
affirmative, the appellate court may reverse “if the error seriously affects the fairness,
integrity, or public reputation of the proceedings below.” Id.
Here, the judge’s comments do not constitute error at all. In considering
whether the remarks were erroneous, the court is to consider “whether the Allen
charge ..., considered as a whole, was so coercive as to cause a juror to abandon an
honest conviction for reasons other than those based upon the trial or the arguments
of other jurors.” Id. (quoting Humphreys v. State, 287 Ga. 63, 81 (9) (b) (694 SE2d
316) (2010)). Here, the bulk of the instruction largely tracked the state’s pattern
charge. Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2015), § 1.70.70
(hung jury). The trial court added some additional remarks, including that complained
of here by Jackson. But those additional remarks urged jurors to follow their
consciences and assured them that a hung verdict was an acceptable outcome.
Looking at the Allen charge as a whole, it is notable that the trial court told jurors:
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• “If you can’t come out in a unanimous agreement and say, answer those
questions that, yes, this is my verdict, it was my verdict in the jury room,
it’s my verdict now, I don’t want somebody to roll over if they can’t
come out here and tell me that, because that means they’ve simply
acquiesced to the others .”
• “I am counting on my foreperson to report out to me if, in fact, he feels
at any time that communications have broken down to the point that
continued deliberations are fruitless. And if that’s in five minutes, so be
it .”
• “Essentially, whatever your verdict is, it needs to speak the truth; and if
eleven to one speaks the truth for each of you, I’m all right with that .”
• “I’ll ask you to continue deliberations until the foreperson tells me either
we have a verdict, or he does not feel that it would be fruitful to
continue deliberating. And I’ll leave that up to y’all .”
Most importantly, far from indicating that a guilty verdict was inevitable, the judge
immediately clarified what he meant when he said the case would not “go away” with
a hung verdict, explaining that a jury verdict was just one of the ways a case could
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“go away .” Cf. Burchette v. State, 278 Ga. 1, 2-3 (596 SE2d 162) (2004)
(disapproving as inaccurate use of language in prior pattern charge for hung juries
that said, “This case must be decided by some jury selected in the same manner this
jury was selected and there is no reason to think a jury better qualified than you
would ever be chosen,” while affirming the defendant’s conviction on the basis that
the remark was not impermissibly coercive within the context of “an otherwise
balanced and fair Allen charge”).
Jackson argues that the Allen charge constituted coercion in the light of the
relatively short time the jury deliberated, the serious questions that they had posed to
the judge, and the fact that only one juror was a holdout against the verdict. However,
the length of deliberations alone does not make an Allen charge coercive. Gamble v.
State, 291 Ga. 581, 584 (5) (731 SE2d 758) (2012) (citations omitted). Our Supreme
Court also has found that circumstances did not suggest coercion in a case with a
similar timeline of deliberations and in which the jury had reached verdicts on some
charges but was divided 11-1 on one charge. Drayton v. State, 297 Ga. 743, 749
(2)(b) (778 SE2d 179) (2015). We fail to see how the jurors’ questions—indicating
they were taking their task seriously—suggest the instruction was coercive. In sum,
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we cannot say the judge’s comment created an impermissibly coercive charge or
otherwise amounted to any sort of error.
Judgment affirmed. Doyle, C.J., and Phipps, P.J., concur.
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