In the Supreme Court of Georgia
Decided: October 20, 2014
S14A1054. JUSTIN MILES WINGATE v. THE STATE.
NAHMIAS, Justice.
Justin Wingate appeals his convictions for the murder and armed robbery
of Michael Wilkins.1 We affirm.
1. (a) Viewed in the light most favorable to the verdict, the evidence
presented at trial showed the following. Wilkins was Appellant’s godfather;
1
The victim was killed on January 23, 2010. On June 8, 2010, a Bibb County grand jury
indicted Appellant, Adrian Sparrow, Tavion Simms, and Shantia Horton for malice and felony
murder and armed robbery. Appellant was tried first, from January 31 to February 3, 2011, and the
jury found him guilty of malice murder and armed robbery. On March 22, 2011, the trial court
sentenced Appellant to serve two concurrent terms of life imprisonment. On April 13, 2011, he filed
a motion for new trial. Appellant was then appointed new counsel, who filed an amended motion
for new trial on February 13, 2013 and another amendment on April 18, 2013. After two hearings,
the trial court denied the motion as amended on February 20, 2014. Appellant filed a timely notice
of appeal, and the case was docketed to this Court for the April 2014 Term and submitted for
decision on the briefs.
On the third day of Appellant’s trial, Horton accepted a plea agreement under which the
murder charge against her was nolle prossed and she pled guilty to the reduced charge of robbery by
force in exchange for her testimony against her co-indictees. Sparrow and Simms were granted
immunity for their testimony and ordered by the trial court to testify at Appellant’s trial. Sparrow
testified against Appellant and then entered a guilty plea about a month after Appellant was
sentenced; the record does not indicate to what charge(s) Sparrow pled guilty. Simms refused to
testify and was later convicted of 30 counts of contempt of court and sentenced to 600 days in jail
and a $5,000 fine; the record does not indicate how the indictment against him was resolved.
Appellant sometimes referred to him as “daddy.” Wilkins had dated Appellant’s
mother, and he remained in contact with Appellant after the relationship ended.
On Saturday, January 23, 2010, Shantia Horton drove Appellant, Adrian
Sparrow, and Tavion Simms from Decatur, where they lived, to Macon, where
Wilkins lived alone, in her car. Appellant told his friends that he wanted to get
money from Wilkins. Horton testified that Appellant said his godfather would
not be home when they arrived, and she did not think that the visit was
“robbery-type.” Sparrow told the police, however, that Appellant said that he
was planning to rob his godfather.
According to Horton’s trial testimony and Sparrow’s statement to the
police, the following happened once the group arrived at Wilkins’s house.
Appellant went inside the house alone. After about 20 minutes, Sparrow and
Simms also got out of the car. Simms went into the house, while Sparrow
stayed in the driveway. Horton and Sparrow did not hear any gunshots. About
five minutes later, Appellant, Simms, and Sparrow returned to the car.
Appellant indicated that he had gotten $14,000, and he gave $3,000 in $100 bills
to each of his companions. When asked how he got the money, Appellant said,
“I did what I had to do.” The group then returned to Decatur, arriving around
2
4:00 p.m.2
Two days later, on Monday, January 25, after Wilkins did not show up for
work or answer his phone or door, a co-worker and a neighbor together called
the police, who found Wilkins dead in his house. He had been killed by a single
gunshot to the back of his head as he was going down the stairs toward his
basement and the door leading to the garage. When the police arrived at the
house, Wilkins’s Toyota Tundra truck was parked in the driveway, neatly
covered with a cloth cover; his Land Cruiser was in the garage; and the doors
to the house were locked. There were no signs of forced entry; the police
determined that the front door automatically locked when shut. The interior of
the house was largely undisturbed, and Wilkins’s wallet, high-end electronics,
keys to the Land Cruiser, and $387 in cash in the top drawer of his dresser all
appeared untouched. However, his mattress had been moved, as if someone was
looking under it, and a small safe in his bedroom closet was open and contained
only papers; it did not appear that the safe had been pried open. At trial,
2
In his testimony at trial, Sparrow contradicted the statement he gave to the police in several
ways. He claimed that Appellant had said that he wanted to drive to Macon to get the money
Wilkins had promised him for his birthday, that only Appellant went in the house, and that he did
not know how much money Appellant got. He also said that Appellant did not say he “did what he
had to do” and that, as the group was driving away, Wilkins came to the door and waved.
3
Wilkins’s brother and two neighbors testified that he usually kept cash in a safe
in the house. Investigators found a cartridge casing from an semi-automatic gun
near Wilkins’s body, and they later found bullet fragments and a shell casing
from a 9mm gun under the carpet where Wilkins had been found lying.
The co-worker who had called the police told them that she had been on
the phone with Wilkins on January 23 and that he ended the call by saying that
his godson had arrived. Phone records showed that Appellant’s cell phone was
present near Wilkins’s home between 2:19 and 2:34 p.m. on January 23, 2010,
and the GPS in Horton’s car showed directions to a location in Macon.
Appellant’s roommate testified that when Appellant returned home that night,
he had a “rubber band of money” and gave the roommate two $100 bills;
Appellant would not say where he got the money. Four days after the Macon
trip, Sparrow was found to have $1,800 in $100 bills. Both Horton and the
roommate testified that Appellant owned a semi-automatic gun.
(b) Appellant argues that he should not have been convicted of
robbing and murdering Wilkins because the evidence presented by the State was
circumstantial and in some respects supported his defense that he went to see
Wilkins to get a gift of money, not to steal it, and the evidence also showed
4
without contradiction that he had a close relationship with Wilkins. However,
“‘[i]t was for the jury to determine the credibility of the witnesses and to resolve
any conflicts or inconsistencies in the evidence.’” Vega v. State, 285 Ga. 32, 33
(673 SE2d 223) (2009) (citation omitted). And evidence that Wilkins and
Appellant had a relationship like father and son is not inconsistent with a finding
that Appellant killed Wilkins; as a review of this Court’s murder cases would
demonstrate, even close blood relatives kill each other with unfortunate
frequency. Our review of the record confirms that the evidence presented at trial
and summarized above was sufficient to authorize a rational jury to find
Appellant guilty beyond a reasonable doubt of the crimes for which he was
convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d
560) (1979).
2. Appellant contends that he is entitled to a new trial on the ground
that the trial court erred in denying his motion to suppress evidence that $1,817
was found in his pocket after he was arrested on a marijuana possession charge
at his high school five days after the Macon trip, because the cash was seized as
a result of a Fourth Amendment violation. We agree that this evidence should
have been suppressed, but we conclude that the error was harmless.
5
(a) As mentioned previously, the victim’s co-worker told police
that the victim ended their call on January 23, 2010 by saying that his godson
had arrived at his house. After learning Appellant’s name from the victim’s
brother, on January 27, 2010 Macon police investigators went to Southwest
DeKalb High School, where Appellant was a student, to speak with him. They
were not able to interview Appellant that day because he had left school early,
but they notified Deputy T.L. Wortham, a POST-certified law enforcement
officer working as a school resource officer (SRO), that they wanted to speak
with Appellant. The next day, Appellant and his mother reported to the
counseling office because he had been absent from classes without excuse the
day before. Deputy Wortham went to the counseling office and explained to
Appellant and his mother that some officers from Macon were coming to speak
with him. Deputy Wortham then led Appellant and his mother to the SRO
office. At some point, the officer cuffed Appellant’s hands, explaining to him
that handcuffing was necessary because the officer had other school duties to
attend to and because Appellant had left school early without excuse the day
6
before.3
Deputy Wortham then left Appellant unattended and handcuffed in the
SRO office with the door open while he went to wait at the front security desk
for the second SRO to arrive at school. When Deputy Wortham returned to the
SRO office, he found a bag of marijuana on the floor near the stool on which
Appellant was sitting that had not been there before. Deputy Wortham then
arrested Appellant for possession of marijuana, searched him incident to the
arrest, and found $1,817 in his pocket, consisting of 18 $100 bills and a few
smaller bills.
(b) The trial court denied Appellant’s motion to suppress the
money evidence, holding that it was admissible as the product of a lawful search
because Appellant was not detained when he abandoned the marijuana that was
the basis for his arrest and the search of his pocket.4 The court concluded that
3
It is unclear from the record whether Appellant was handcuffed before or after Deputy
Wortham led him to the SRO office. The record also does not indicate whether Appellant’s mother
stayed with him in the SRO office, although she was at the school when the Macon officers arrived
later that morning.
4
After Appellant’s arrest on the marijuana charge, the Macon police arrived and Appellant
gave them a statement. In response to a motion to suppress, the State agreed not to use that
statement at trial. In addition, the trial court granted Appellant’s motion to exclude evidence of the
marijuana, deeming it irrelevant and prejudicial.
7
Appellant had not been seized when Deputy Wortham left him handcuffed in the
SRO office because he had gone to the office voluntarily and the officer told
Appellant that he was not under arrest and left the office door open. This
conclusion was erroneous, because the trial court failed to appreciate how
Appellant’s freedom to leave the office was hampered by the handcuffs that the
officer had put on him.
The State argues that Deputy Wortham’s use of handcuffs did not turn his
interaction with Appellant into a Fourth Amendment seizure. Many of the cases
cited to support this argument, however, stand only for the proposition that the
use of handcuffs does not necessarily convert a second-tier, investigatory stop
– which is already a seizure, albeit a brief and limited one – into a full-fledged
arrest. See, e.g., Stringer v. State, 285 Ga. 842, 844-845 (684 SE2d 590) (2009)
(“‘[O]fficers may handcuff a suspect during an investigatory stop when such
action is either reasonable under the circumstances to protect themselves or the
public or to maintain the status quo.’” (citation omitted)). See also In re D.H.,
285 Ga. 51, 53 (673 SE2d 191) (2009) (“There are at least three types of
police-citizen encounters: verbal communications that involve no coercion or
detention; brief ‘stops’ or ‘seizures’ that must be accompanied by a reasonable
8
suspicion; and ‘arrests,’ which can be supported only by probable cause.”
(citation and quotation marks omitted)). These cases are inapplicable here
because there is no evidence that Deputy Wortham had the reasonable suspicion
that Appellant was or had been engaged in criminal activity that is necessary to
justify a second-tier stop. See Stafford v. State, 284 Ga. 773, 774 (671 SE2d
484) (2008) (explaining that a second-tier stop requires “‘reasonable, articulable
suspicion that a crime may have been committed’” (citation omitted)). The
Macon police had simply asked to speak with Appellant; there is no evidence
that they told Deputy Wortham that there was a pending charge against
Appellant or any other reason to detain him, nor did the deputy have any
independent reason to suspect Appellant of a crime before handcuffing him.
The State also cites cases where we held that the use of handcuffs did not
convert a first-tier encounter into a seizure when a defendant who voluntarily
consented to be interviewed was handcuffed during transportation to the police
station in the back of a police car, because such a measure was reasonable to
protect officer safety and the handcuffs were removed before the evidence as to
which the defendant sought suppression was obtained. See Bolden v. State, 278
Ga. 459, 462-463 (2004). See also Smith v. State, 281 Ga. 185, 187 (640 SE2d
9
1) (2006) (finding no unlawful seizure even assuming the appellant had been
handcuffed for transport).5
In this case, however, there is no evidence that cuffing Appellant’s hands
together was necessary to protect Deputy Wortham or anyone else, or that it
could serve that purpose after the officer left Appellant behind in the unlocked
SRO office to go to the front desk. Indeed, Deputy Wortham offered no reason
for handcuffing Appellant other than explaining that it was the general practice
for SRO officers at the school to handcuff students they had to leave
unattended.6 And even assuming that the school police officer’s taking this
student to wait in the SRO office until Macon police officers arrived to question
him did not result in Appellant being detained, leaving him there in handcuffs
did. Appellant may have been free to move about the SRO office, but a
reasonable person would not feel free to leave, even through an open door, to
5
The State also cites a case in which the Court of Appeals noted in dicta that briefly
detaining at gunpoint two men who were not suspected of illegal activity was “justified by the need
to protect the safety of the officers and the detained men” because the men were on the sidewalk
outside an apartment that other officers were lawfully searching. Hunter v. Lee, 244 Ga. App. 488,
491 n.1 (536 SE2d 157) (2000). Even assuming that dicta was correct, it would not lead to a
different conclusion on the facts of this case.
6
If such a practice of routinely handcuffing students who are not reasonably suspected of
misconduct exists, we do not endorse it.
10
walk through his school when he was marked by handcuffs that signify an
escaped detainee and that cannot easily be removed. See Jones v. State, 291 Ga.
35, 37 (727 SE2d 456) (2012) (“A consensual encounter may become a seizure
under the Fourth Amendment when ‘in view of all of the circumstances
surrounding the incident, a reasonable person would have believed that he was
not free to leave.’” (citation omitted)). Moreover, unlike the situation in cases
like Bolden, by leaving Appellant behind in the office, the officer prevented
Appellant from being in a position to ask for the handcuffs to be removed so
that he could leave. See Bolden, 278 Ga. at 463. Put simply, a reasonable
person would not “feel free to ‘disregard the police and go about his business’”
when left in a room in a school wearing handcuffs that the police had locked
onto him. Jones, 291 Ga. at 37 (2012) (quoting Florida v. Bostick, 501 U.S.
429, 434 (111 SCt 2382, 115 LEd2d 389) (1991)).
Under these circumstances, we conclude that Appellant was seized in
violation of the Fourth Amendment when Deputy Wortham left him handcuffed
in the SRO office, even if the officer did not subjectively intend to detain
Appellant. See State v. Fisher, 293 Ga. App. 228, 230 (666 SE2d 594) (2008).
Because Appellant was unlawfully detained at the time he apparently discarded
11
the marijuana, the marijuana was the product of an unlawful seizure. See
Edwards v. State, 239 Ga. App. 44, 45 (518 SE2d 426) (1999) (“‘There is
nothing unlawful in the government’s appropriation of abandoned property,
which does not constitute a search or seizure in the legal sense.’ . . . However,
if unlawful police conduct coerces the defendant into abandoning the property,
then suppression of the evidence may be warranted.” (citation omitted)). Thus,
the marijuana could not be the basis for a legal arrest. See Jones v. State, 126
Ga. App. 841, 845 (192 SE2d 171) (1972) (explaining that the fruits of an illegal
search cannot be used as the basis of an arrest). The search of Appellant done
incident to that illegal arrest was therefore tainted, and the money found in his
pocket during that search should have been suppressed. See State v. Alexander,
245 Ga. App. 666, 668 (538 SE2d 550) (2000) (“Fruits of an unlawful arrest
may not be introduced into evidence.”); OCGA § 17-5-30 (a).
(c) Although the trial court erred in not suppressing evidence of
the money found in Appellant’s pocket, he is not entitled to a new trial, because
it is clear that the error was harmless.
“Before a federal constitutional error can be held harmless, the
court must be able to declare a belief that it was harmless beyond a
reasonable doubt. Reversal is required where there is ‘a reasonable
12
possibility’ that the improperly admitted evidence contributed to the
verdict.”
Bryant v. State, 288 Ga. 876, 898 (708 SE2d 362) (2011) (citations omitted).
See also Ramirez v. State, 279 Ga. 569, 574-575 (619 SE2d 668) (2005)
(applying this harmless-error test to a violation of the Fourth Amendment).
At trial, there was no dispute that Appellant and three associates traveled
to the victim’s house in Macon, that Appellant went inside the house, and that
he came out with cash. There was evidence from three witnesses that after the
visit, Appellant had a substantial amount of cash, and two of them testified that
Appellant gave them several $100 bills; there was also evidence that another of
Appellant’s co-indictees had $1,800 in $100 bills four days later. The evidence
that should have been excluded – the $1,817 in cash found on Appellant at his
school five days after the visit to Macon – was cumulative of the other evidence
that he had obtained a large amount of money.
Furthermore, at trial, Appellant did not quibble about how much money
he got from his godfather; his defense was that whatever money he obtained
from Wilkins was not a product of a robbery, but rather a birthday present.
Neither Appellant nor the State argued that the amount of money he got proved
13
how he got the money – as a gift or at gunpoint. Because there was no dispute
(and ample evidence) that Appellant got a substantial amount of cash from the
victim, and the exact amount he got was immaterial, the trial court’s error in
admitting additional evidence about the money was harmless beyond a
reasonable doubt. See Ramirez, 279 Ga. at 574-575 (concluding that a seizure
assumed to be unlawful was harmless because identification cards in the seized
wallet served only to identify the defendant and identity was not an issue at
trial).
3. Finally, Appellant contends that his trial counsel provided
ineffective assistance by failing to call Milton Brooks to testify at trial, claiming
that Brooks would have convincingly testified that he saw a woman he did not
know driving the victim’s vehicle on the day after Appellant came to the
victim’s house. To prevail on this claim, Appellant must show both that his trial
counsel provided deficient performance and that, but for the deficiency, there
is a reasonable probability that the outcome of the proceeding would have been
different. See Strickland v. Washington, 466 U.S. 668, 687, 694 (104 SCt 2052,
80 LEd2d 674) (1984). Appellant has not met this heavy burden.
In his opening statement at trial, Appellant’s counsel apparently referred
14
to Brooks, saying:
Now, there is evidence in the State’s records, if they present it or
not, I don’t know, but a neighbor saw someone driving Mr.
Wilkins’ truck on a Sunday. Supposedly, he was dead on a
Saturday, and the person allegedly driving that truck is not Mr.
Wingate or anybody that you will hear from in this trial.
At the motion for new trial hearing, trial counsel recalled that in discovery there
was “some mention of someone seeing a vehicle that belonged to the victim”
being driven by someone else, but he did not recall contacting Brooks and could
not remember if he subpoenaed him. Trial counsel further testified that he
expected Brooks might appear for the State, but he also said that he did not
attempt to hire an investigator to find Brooks. Counsel said that he was focused
on preparing to cross-examine Appellant’s co-indictees at the time, and his
failing to secure Brooks’s testimony was an “oversight.”
At the motion for new trial hearing, Brooks testified that he and Wilkins
lived within a half-mile of each other and would chat whenever they saw each
other, and he knew the vehicles Wilkins owned. Brooks claimed that on his way
to the track on January 24, 2010, the day after Appellant visited Wilkins, he saw
a woman he did not know driving one of Wilkins’s vehicles on the street where
Wilkins lived. On direct examination, Brooks first testified that he was not sure
15
if he saw the unknown woman driving the Land Cruiser or Tundra, then said
that he “thought it was the Tundra,” and then said that “[i]t was definitely one
of [Wilkins’s] vehicles.” On cross-examination, Brooks testified that the
woman was definitely driving either Wilkins’s Tundra or “one identical to it.”
The evidence at trial showed that the morning after Brooks claimed to have seen
the unknown woman driving the victim’s Tundra, the police found that truck
parked in the victim’s driveway, neatly draped with a cloth cover. Brooks
described the woman as having long hair and a hat, and said that when he saw
her, she “looked over and turned her head back,” as if she did not want him to
see her face. Brooks explained that he could not describe the woman further
because he “didn’t really pay any attention.”
Brooks also testified that he never spoke to law enforcement about the
case and never gave a statement about seeing Wilkins’s vehicle being driven by
an unknown woman. At trial, however, the State had advised the court that a
police officer who would not be testifying had spoken to Brooks, and
Appellant’s trial counsel testified at the motion for new trial hearing that he
remembered information provided by the State in discovery mentioning
Brooks’s statement about seeing someone in Wilkins’s vehicle. Indeed,
16
Appellant’s ineffective assistance claim rests on the allegation that his trial
counsel knew about Brooks’s statement to the police before trial but failed to
pursue that information.
Trial counsel’s failure to try to locate Brooks to investigate his statement
and potentially to present his testimony at trial may have been deficient
performance, but it did not prejudice Appellant, because there is no reasonable
probability that Brooks’s testimony would have changed the outcome of the
trial. Brooks’s admission that he was not really paying attention to the incident,
his equivocation as to which vehicle he saw and whether it was actually
Wilkins’s or just the same kind as Wilkins’s, and his apparently false testimony
that he never spoke to the police indicate that even if trial counsel had located
Brooks and made the risky decision to have him testify at trial, his testimony
would have been inconsistent and unpersuasive and would not in reasonable
probability have led to a different outcome. Thus, Appellant’s ineffective
assistance of counsel claim fails. See Kidd v. State, 292 Ga. 259, 261-262 (736
SE2d 377) (2013).
Judgment affirmed. All the Justices concur.
17