Westbrook v. State
308 Ga. 92
Ga.2020Background
- Early morning of July 13, 2015: a convenience store clerk, Harry Wells, was shot and killed; surveillance video showed a hat, dark sweatpants with "emoji" designs, and a t-shirt with letters including "BC."
- Witness Warren Mitchell observed the shooter and later identified Westbrook in a pretrial six-photo lineup (not in-court). Mitchell described a teardrop tattoo under the shooter's left eye; Westbrook had a teardrop under his right.
- Detectives, after an anonymous tip, located Westbrook at an apartment that management said should have been vacant; Westbrook said he was staying there as a guest. Officers later arrested him and, with consent from a friend, seized Westbrook’s phone from the friend’s car.
- A subsequent search warrant of the phone produced texts (including one from "Sis" referencing a "pic"), internet searches about the shooting, photos and videos (one showing Westbrook with a hat like the shooter), and other records; police also found emoji pants and a BC shirt in the apartment.
- At trial, the jury convicted Westbrook of malice murder and possession of a firearm during the commission of a felony; the jury’s verdicts were affirmed on appeal.
Issues
| Issue | Westbrook's Argument | State's Argument | Held |
|---|---|---|---|
| Motion to suppress phone evidence — warrantless arrest/probable cause | Arrest lacked probable cause because Westbrook said he was a guest; thus phone evidence should be suppressed as fruit of poisonous tree | Management told officers the unit should be vacant; totality of circumstances gave probable cause to arrest for theft of services, making seizure lawful | Trial court did not err — officers had probable cause to arrest for theft of services; suppression denied |
| Ineffective assistance — failure to object to warrant language "electronic data" | Counsel should have objected that "electronic data" was too vague to authorize seizure of photos/videos | "Electronic data" reasonably encompassed phone-stored photos/videos; objection would be meritless | No deficient performance; claim fails |
| Ineffective assistance — failure to object to incoming text from "Sis" (hearsay) | Counsel should have objected that the incoming text was inadmissible hearsay | Text was cumulative of other admissible evidence; any hearsay objection would not have changed outcome | No prejudice shown; claim fails |
| Pretrial photographic lineup suggestiveness | Lineup was impermissibly suggestive (superimposed dark spots to match tattoos, photo differences) and risked misidentification | Lineup photos were substantially similar; officer gave standard admonitions; unusual features were not in witness’s initial description | No abuse of discretion — lineup not impermissibly suggestive; identification admissible |
| Admission of jail phone call (authentication, adoptive admission, Confrontation Clause) | Recording not properly authenticated; statements inadmissible as adoptive admissions; admission violated Confrontation Clause | Jail recording system evidence authenticated the call; Cooper’s statements were adoptive admissions by context; statements were non-testimonial | No error — recording properly authenticated under Rule 923, admissible as adoptive admission, and not testimonial for Confrontation Clause purposes |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes standard for sufficiency of evidence)
- Devenpeck v. Alford, 543 U.S. 146 (probable cause for arrest judged by objective facts, not officer’s subjective intent)
- Michigan v. DeFillippo, 443 U.S. 31 (definition of probable cause for arrests)
- District of Columbia v. Wesby, 138 S. Ct. 577 (totality-of-circumstances approach to probable cause)
- Wong Sun v. United States, 371 U.S. 471 (fruit of the poisonous tree doctrine)
- Strickland v. Washington, 466 U.S. 668 (two-prong test for ineffective assistance of counsel)
- Whren v. United States, 517 U.S. 806 (officer’s subjective intent irrelevant to Fourth Amendment probable cause analysis)
- Riley v. California, 573 U.S. 373 (privacy concerns and special considerations for cell-phone searches)
- Reid v. State, 306 Ga. 769 (admission/authentication of jail-call recordings)