Jackson v. the State

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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