Porter v. the State

SECOND DIVISION
DOYLE, C. J.,
MILLER, P. J., and REESE, 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

June 8, 2017

In the Court of Appeals of Georgia
A17A0046. PORTER v. THE STATE.

REESE, Judge.

Following a jury trial, Tomeka Porter was convicted of armed robbery1 and

sentenced to serve 20 years in confinement. She appeals from the denial of her motion

for new trial, arguing that the evidence was insufficient to support her conviction, and

that the trial court erred in admitting her custodial statement and the witness’ show-up

identification of her as one of the offenders. For the reasons set forth, infra, we affirm.

Viewed in the light most favorable to the jury’s verdict,2 the record shows the

following facts. On August 9, 2013, the Appellant was in a DeKalb County hotel

1
OCGA § 16-8-41 (a).
2
See Hogan v. State, 330 Ga. App. 596, 597 (768 SE2d 779) (2015).
selling drugs when Ladarius Clark, Teneshia Harvey, Theophilus Porter (“Porter”),3

and Sir Charles Wood came to her hotel room. The Appellant voluntarily drove Clark,

Harvey, Porter, and Wood (collectively, the “co-defendants”) to Gwinnett County so

the Appellant could sell cocaine. While the Appellant drove, the co-defendants

consumed drugs and alcohol.

After arriving in Gwinnett County, the Appellant’s phone rang and she spoke

to the caller in Spanish while she stopped at a couple of residences. After the

conversation, the Appellant told the co-defendants that the caller “had some nice

things,” he would “pay well,” and he was an “easy target.” They discussed a plan to

travel to the caller’s home, “see[ ] what all he had”and steal items from the house.

On the night of the robbery, the caller, “A. H.,” and his two roommates, “P. C.”

and “R. J.,” were at A. H.’s home.4 The Appellant and her co-defendants arrived at

the house around 1:00 a.m. The Appellant and her female co-defendant, Harvey,

exited the vehicle and went inside, stayed about ten to fifteen minutes, and returned

to the car.

3
Theophilus Porter is unrelated to the Appellant.
4
A. H. subsequently moved out of the country and did not testify at the
Appellant’s trial.

2
 During that visit to A. H.’s house, P. C. was asleep in the living room. The

Appellant, Harvey, and A. H. went to A. H.’s room for a few minutes. Before leaving

the residence, the Appellant woke up P. C., kissed him, and said “I’ll come back for

you.” Upon returning to the car, the Appellant told the co-defendants, “[A. H.] ha[d]

nice things” but did not pay what he owed her.

The Appellant and her co-defendants drove to the end of the street, but then

decided collectively to return to the house and steal some things. The Appellant and

Harvey returned to the house around 1:30 a.m. P. C. saw them through a window

adjacent to the door, but did not notice the three male co-defendants hidden in the

bushes around the side of the house. When P. C. opened the door, the male co-

defendants appeared in the doorway and “jump[ed] inside” the home, in front of the

Appellant and Harvey. Once the Appellant and her co-defendants were all inside,

P. C. saw that one of the men had a gun.

The male co-defendants punched and beat P. C. and took him to another room

occupied by A. H. They asked for the victims’ wallets, keys, and cell phones. A. H.

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grabbed a chair to fight back, but one of the men shot him in the shoulder. The male

co-defendants took the victims’ cell phones and a car key.5

While the male co-defendants were inside the residence, R. J. slept in his

bedroom. He awoke upon hearing a “ruckus” in the home and opened his bedroom

door. R. J. saw one of the male co-defendants holding a gun. R. J. closed his bedroom

door and climbed out of his bedroom window to the street.

The Appellant and Harvey exited the house, returned to the vehicle, and the

Appellant drove away. While leaving the neighborhood, the Appellant and Harvey

saw a man, later identified as R. J., “frantically walking” down the street with a cell

phone. Harvey told the Appellant to stop the car, after which she told the man, “I just

want your phone.” R. J. gave Harvey the phone, and she and the Appellant returned

to A. H.’s residence. Once there, Wood got into the car’s backseat and the Appellant

started driving “[b]ack to DeKalb County.”

At 3:07 a.m., a DeKalb County police officer initiated a traffic stop of the

Appellant’s car because it had a “cardboard tag.” After the Appellant gave the police

officer a driver’s license that was not hers and a date of birth that did not match the

5
Porter and Clark were later apprehended in Virginia with a stolen television
and BMW that belonged to the victims.

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license, the officer arrested her for identity fraud. Because neither Harvey nor Wood

had a valid driver’s license, several officers conducted an inventory search in

preparation for impounding the vehicle. After discovering a handgun, the officers

contacted neighboring precincts to determine if any crimes, such as entering autos or

armed robberies, had recently occurred. The Gwinnett County Police Department

responded that there had just been a home invasion during which someone was shot.

Gwinnett County officers brought two of the home invasion victims, P. C. and R. J.,

to the site of the traffic stop. P. C. identified the Appellant, Harvey, and Wood as

being involved in the robbery, and R. J. identified Harvey. The Appellant was taken

into custody.6

1. The Appellant argues that the evidence was insufficient for a rational trier

of fact to find her guilty of armed robbery. We disagree.

Generally, on appeal from a criminal conviction, the appellate court

6
The Appellant and her co-defendants were jointly indicted for the armed
robbery of A. H. In addition, the Appellant’s male co-defendants were charged with
the armed robbery of P. C., as well as aggravated assault, false imprisonment, and
other crimes arising from this incident. Porter testified at the Appellant’s trial, and he
admitted that he had pled guilty to the crimes, but had not yet been sentenced. The
Appellant’s female co-defendant, Harvey, was charged with armed robbery and theft
by taking. She also testified at the Appellant’s trial, even though she had not yet
entered a plea in the case.

5
 view[s] the evidence in the light most favorable to the verdict and an
appellant no longer enjoys the presumption of innocence. [The] Court
determines whether the evidence is sufficient under the standard of
Jackson v. Virginia,7 and does not weigh the evidence or determine
witness credibility. Any conflicts or inconsistencies in the evidence are
for the jury to resolve. As long as there is some competent evidence,
even though contradicted, to support each fact necessary to make out the
State’s case, [the Court] must uphold the jury’s verdict.8

The standard of Jackson v. Virginia is met if the evidence is sufficient for any rational

trier of fact to find the defendant guilty beyond a reasonable doubt of the crime

charged.9

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 by use

of an offensive weapon, or any replica, article, or device having the appearance of

such weapon.”10 OCGA § 24-14-8 states, in part, “[t]he testimony of a single witness

7
443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
8
Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004) (citations omitted).
9
Clark v. State, 275 Ga. 220, 221 (1) (564 SE2d 191) (2002).
10
OCGA § 16-8-41 (a).

6
is generally sufficient to establish a fact.”11 “[A] defendant may not be convicted on

the uncorroborated testimony of an accomplice. The corroboration must be

independent of the accomplice’s testimony and it must connect the defendant to the

crime or lead to the inference that he [or she] is guilty.”12

At trial, the jury heard the testimony of victims P. C. and R. J. and the

Appellant’s co-defendants, Porter and Harvey. Both Porter and Harvey testified that

the Appellant told them that the victims’ home had “nice things,” and that the

Appellant had actively participated in the planning and implementation of the

robbery. Both testified that the Appellant drove the co-defendants to the victims’

home for the purpose of committing the robbery. P. C. corroborated the co-

defendants’ testimony by testifying that he was “ a hundred percent” sure that the

Appellant was the woman who kissed him and, later, came into the house with the co-

11
In 2011, the Georgia General Assembly repealed the Evidence Code in its
entirety and replaced it with a new Evidence Code, the provisions of which became
effective on January 1, 2013, and which applies to any motion, hearing, or trial
commenced on or after such date. Ga. L. 2011, p. 100, §§ 1, 101. Pursuant to that
legislative act, former OCGA § 24-4-8 has been reenacted as OCGA § 24-14-8.
Because the instant trial took place in August 2015, the new Evidence Code applies.
12
Susan v. State, 254 Ga. App. 276, 279 (1) (562 SE2d 233) (2002) (citing
former OCGA § 24-4-8) (citations and punctuation omitted).

7
defendants. We conclude that the evidence presented was sufficient for a rational trier

of fact to find the Appellant guilty of armed robbery beyond a reasonable doubt.13

2. The Appellant contends that the trial court erred in admitting the portion of

her custodial statement that she made after invoking her right to counsel. We

disagree.

“In reviewing a trial court’s ruling on a motion to suppress, [the appellate

court] must affirm the trial court’s findings on disputed facts unless clearly

erroneous.”14 When the recorded interrogation sessions at issue are made part of the

appellate record, we review the trial court’s application of the law to the undisputed

facts de novo.15

As the Supreme Court of Georgia has instructed,

(1) A suspect who asks for a lawyer at any time during a custodial
interrogation may not be subjected to further questioning by law
enforcement until an attorney has been made available or until the

13
See Robinson v. State, 281 Ga. App. 76, 78 (1) (635 SE2d 380) (2006)
(evidence was sufficient where the victims of the armed robberies both identified the
defendant as the perpetrator and police officers testified that the defendant had a gun
when they approached him).
14
Mack v. State, 296 Ga. 239, 241 (765 SE2d 896) (2014) (citation omitted).
15
Id. at 241-242.

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 suspect reinitiates the conversation. If the police persist in questioning
a suspect who has requested that counsel be present, any resulting
statements made by the suspect are inadmissible in the State’s case-in-
chief. (2) In order for a suspect to properly invoke his right to counsel
during a custodial interrogation, he must articulate his desire to have
counsel present sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be a request for an
attorney.16

Thus, “[a]n accused will be found to have unambiguously and unequivocally asserted

his right to remain silent where he declares that he is finished talking or otherwise

expresses the clear desire for police questioning to cease.”17

In this case, two Gwinnett County detectives interviewed the Appellant. During

questioning, she repeatedly denied knowing anything about the armed robbery at

issue, claiming that she was not present. When the detectives continued to ask her

about discrepancies in her statements, she stated, “I’ll probably have to stop and let

my lawyer handle the rest of it.” The detectives left the room without asking further

questions. About 30 minutes later, the detectives returned to the room, and one asked

16
State v. Philpot, 299 Ga. 206, 206-207 (787 SE2d 181) (2016) (citation and
punctuation omitted).
17
Mack, 296 Ga. at 242 (1) (citations and punctuation omitted).

9
the Appellant if she wanted to tell them “what really happened?” The Appellant

continued to deny any knowledge about what had occurred. A detective asked her

again, “Do you want to talk about what happened?” The Appellant responded that she

had already talked to them. The detectives then left, but one detective returned to the

room about 90 minutes later. He told the Appellant that law enforcement officers had

apprehended the other people suspected of being involved in the armed robbery, and

asked her “if their story [is] going to be the same as [hers]?” When the Appellant did

not respond, the detective told her, “If you don’t want to talk, just tell me.” The

Appellant responded by repeating her claim of ignorance about the incident. The

detective and the Appellant talked for a few minutes before the detective mentioned

that someone was shot during the armed robbery. The Appellant responded, “I didn’t

know anything about anybody getting shot.” Then, after remaining silent for about

six minutes, the Appellant said, “I need a lawyer. (unintelligible) don’t want to put

myself (unintelligible) you said somebody got shot. I need a lawyer.” The detective

immediately left the room, and the interrogation ended.

After reviewing the recording of the custodial interview, we find that the

Appellant’s initial statement, “I’ll probably have to stop and let my lawyer handle the

10
rest of it,” was not an unequivocal assertion of her right to counsel.18 This conclusion

is bolstered by her later statement, “I need a lawyer,” which was clearly a request for

counsel. Even if her first statement was sufficient, the detectives ceased their

interrogation, and the only statements by the Appellant afterward were redundant of

her previous, unobjected-to statements.19 Thus, we find as a matter of law that the trial

court properly admitted the Appellant’s custodial pre-trial statement.

3. The Appellant asserts that the trial court improperly admitted evidence of the

victims’ show-up identification of her as one of the participants in the armed robbery.

We disagree.

Generally, this Court first determines

whether the identification procedure was impermissibly suggestive. If
the answer to that inquiry is negative, we need not consider the second
question — whether there was a substantial likelihood of irreparable

18
See Brooks v. State, 271 Ga. 698, 699 (2) (a) (523 SE2d 866) (1999) (“The
comments on which [the] [A]ppellant relie[d], when viewed in context, were not clear
invocations of the right to counsel and thus the officers had no obligation to cease
questioning her immediately.”) (citation omitted).
19
See Harrington v. State, 300 Ga. 574, 580 (3) (a) (797 SE2d 107) (2017) (It
was harmless error to admit the portions of the Appellant’s custodial interrogation
that followed his alleged invocation of his right to remain silent, because his
subsequent statements were reaffirmations of his “previous unobjected-to
statements.”).

11
 misidentification. Conversely, we may immediately proceed to the
second question and, if the answer thereto is negative, we may entirely
pretermit the first question.20

Thus, even if the circumstances surrounding the Appellant’s identification “rendered

the showup impermissibly suggestive, the evidence is inadmissible only if[,] under

the totality of the circumstances, there was a substantial likelihood of irreparable

misidentification.”21

Here, a Gwinnett County police officer conducted the show-up identification

of the Appellant at 4:28 a.m., about three hours after the robbery. The show-up

occurred on the side of the I-85 interstate with victims P. C. and R. J. in a police car.

Neither the Appellant nor her co-defendants were handcuffed. P. C. positively

identified the Appellant, telling the Gwinnett County officer “that he was 100 percent

sure,” that the Appellant was the woman who kissed him and came back to rob them.

R. J. was unable to identify the Appellant.

At trial, R. J. testified that the Gwinnett County officer who transported him

and P. C. to the site of the traffic stop told them “that there are some - some suspects -

20
Butler v. State, 290 Ga. 412, 415 (3) (721 SE2d 876) (2012) (citation and
punctuation omitted).
21
Id. (citations and punctuation omitted).

12
some people that we . . . think are connected to what has happened” and asked them,

“if possible, to identify those . . . individuals.” The officer testified, however, that he

had extensive experience working with crime victims and conducting show-up

identifications. He also testified as follows:

I made sure to advise the victims that[,] just because I’m taking them to
show them someone, that does not necessarily mean that these are the
people that did it. And that they would have [to] recollect from their
memory, from their thoughts of what occurred, [to determine] if these
are actually the individuals [who robbed them]. So I relay that to them
that they did not have to make an identification. If they were not sure,
they did not have to . . . make an identification.

The Appellant argues in her brief that having both victims together during the

show-up, and the use of the words “some suspects” by the Gwinnett County officer,

was impermissibly suggestive. Pretermitting the alleged suggestiveness of the show-

up procedure, however, the Appellant has failed to show that there was a substantial

likelihood of misidentification.

At trial, P. C. testified that the Appellant was wearing the same clothes during

the armed robbery that she was wearing during the show-up. P. C. had the opportunity

to see the Appellant at close range when she kissed him and told him that she would

be back. The Appellant’s co-defendants also identified her as a participant in the

13
crime. Based on the foregoing, we find that the trial court did not err in admitting the

show-up identification of the Appellant.

Judgment affirmed. Doyle, C. J., and Miller, P. J., concur.

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