Jessie James Askew, Jr. was found guilty by a jury of armed robbery of a Morrison’s cafeteria in Warner Robins. Askew was also found guilty of three counts of kidnapping and three counts of aggravated assault committed against cafeteria employees during the robbery, along with three counts of possession of a firearm during the commissiоn of these crimes. For the following reasons, we affirm the judgment entered on the convictions.
1. The evidence was sufficient to support Askew’s conviction on all of the charges. The State presented evidence that two robbers carrying firearms and wearing masks to conceal their identities entered the reаr door of the business, forced employees at gunpoint into a walk-in cooler, and took over $4,000 from the business. Although the robbers fled the scene before police arrived, a Morrison’s employee knew and recognized Fernando Jackson as one of the robbers despite the mask and identified him to police. Jackson was arrested, admitted his involvement, and testified pursuant to a plea agreement with the State that Askew was the other robber. There was evidence that Askew worked at Morrison’s until shortly before the robbery. De-Shaun Maine, another Morrison’s employee, was produced as a witness by the State and wаs expected to testify that he knew Askew and recognized him as one of the robbers, as he had previously testified for the State before the grand jury. At trial, however, Maine changed his testimony and said he did not recognize Askew as one of the robbers. Evidence of Maine’s grand jury testimony identifying Askew as one of the robbers was introduced for purposes of impeachment.
The State
The evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Askew was guilty of the charged offenses. OCGA §§ 16-8-41; 16-5-40; 16-11-106; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Askew contends thе trial court erroneously excluded evidence impeaching the testimony given by Jackson.
Prior to trial, Maine, who knew both Askew and Jackson, received a letter by mail purportedly written by Jackson from jail stating that Jackson was falsely accusing Askew of being involved with him in the robbery. The letter states that Jackson and another named individual committed the robbery and that Jackson was falsely accusing Askew as revenge for prior difficulties he had with Askew. After the letter was brought to the attention of defense counsel and the prosecutor, the State filed a motion in limine to exclude
the letter claiming it was
A pre-trial hearing was held on the mоtion at which Askew presented evidence which he claims authenticated the letter and supported his contention that the letter was admissible to impeach Jackson’s testimony. Although Askew claims the trial court granted the State’s motion and excluded the letter, the record does not support this claim. The record shows only that the trial court stated it was not inclined to admit the letter. The court further stated, however, that “I’m not saying at this point that it is absolutely to be excluded because I don’t know . . . what the total circumstances are going to dictate . . . [a]nd there may be something else that says to me that it should come in. . . .” There is nothing in thе record showing that the trial court subsequently excluded the letter or that Askew attempted to introduce the letter during the trial. Accordingly, this issue was not preserved for appellate review.
Cunningham v. State,
3. Askew contends the trial court erred by refusing to charge the jury that a witness for the State violated the rule of sequestration by discussing tеstimony with another witness.
While cross-examining Officer Hudgens, defense counsel elicited testimony that the officer discussed aspects of his upcoming testimony with another officer who had previously testified for the State in the case. At the request of defense counsel, the trial court allowed a proffer of testimony frоm Officer Hudgens outside the presence of the jury detailing the nature of the discussion. The proffer showed that the discussion was about whether the officers had seen anyone leaving Morrison’s when they arrived at the scene of the robbery, a point which was not raised in Hudgens’s testimony. Defense counsel made no attempt to introduce the proffered testimony before the jury, but requested that the trial court instruct the jury .there had been a violation of the rule of sequestration and also instruct the jury “about the question he [Hudgens] and the officer talked about.”
We find no error in the trial court’s refusal to give the requested instruction regarding the nature оf the question discussed. This was not an obvious violation of the sequestration rule where a witness whose credibility was at issue because of the violation had been sitting in the courtroom during the trial, so the appropriate remedy was to admit testimony before the jury as to the violation.
Childress v. State,
4. Askew claims the trial court erred in admitting an incriminating statement he gave to police because he was not advised of his rights pursuant to
Miranda v. Arizona,
We find no error in the triаl court’s conclusion that the statement was admissible without
Miranda
warnings because Askew was not in custody when he gave it. A suspect is entitled to
Miranda
warnings only when subjected to State interrogation while in custody or deprived of freedom in any significant way.
Driver v. State,
5. The trial cоurt did not err by refusing to grant a new trial on the basis of newly discovered evidence.
A year after the trial, Jackson, who testified at the trial that he and Askew committed the robbery, recanted his testimony and gave an affidavit stating that he lied at the trial, that Askew did not participate in the robbery, and that he wrote the letter to Maine referenced in Division 2, supra, stating that he was falsely accusing Askew.
That a material witness for the State, who at the trial gave direct evidence tending strongly to show the defendant’s guilt, has since the trial made statements even under oath that [his] former testimony was false, is not cause for a new trial. Declarations made after the trial are entitled to much less regard than sworn testimony delivered at the trial. This difference in value must be recognized, so long as there has been no conviction of perjury. Provision is made for setting aside verdicts resting on perjury, but there must first be a conviction. The only exception to the rule against setting aside a verdict without proof of a material witness’ conviction for perjury, is where there can be no doubt of any kind that the State’s witness’ testimony in every material part is purest fabrication.
(Citations and punctuation omitted.)
Johnson v. State,
6. The trial court did not abuse its discretion by ruling that defense counsel could not continue to cross-examine Jaсkson about an alleged improper conversation he had with the prosecutor after Jackson denied during the cross-examination that any such conversation occurred.
Moore v. State,
7. Askew claims the trial court erred in failing to grant his motion for a new trial on the basis that the State engaged in misconduct by: (1) telling Jackson to lie at trial and allowing him to give false testimony, (2) improperly withholding the taped statement of a witness which contained exculpatory evidence, and (3) placing Askew’s mother on its witness list for the sole purpose of using the rule of sequestration to prevent her from being in the courtroom to support her son.
Jackson testified at Askew’s trial that he and Askew committed the robbery, and on cross-examination by defense counsel, he denied meeting with prosecutors and being told to give false testimony. The аllegations that a prosecutor told Jackson to lie at Askew’s trial and knowingly allowed him to give false testimony are based on the affidavit given by Jackson a year after the trial in which he recanted his trial testimony. For the reasons stated in Division 5, supra, the affidavit was not a sufficient basis for the grant of a new trial.
As to the tаped statement, the record shows that the State provided a copy of the
Finally, the State gave a reasonable explanation as to why it listed Askew’s mother as a potential witness. There was no evidence of misconduct.
The trial court did not err by denying the motion for new trial.
8. Askew contends the trial court erred by allowing a police officer to give hearsay testimony based on the statement of Askew’s girlfriend, who was a nontestifying co-defendant.
A police officer testified on direct examination that from sources other than Jackson he learned that ammunition found in the girlfriend’s car was put in the car during the approximate period of time that Askew and Jackson used the car in the robbery. The State concedes that, apart from getting this information from Jackson, the officer’s knowledge was based on hearsay statements made by Askew’s girlfriend. Even if this testimony was erroneously admitted, we find no harmful error. It was cumulative of testimony given by Jackson, and, excluding the inadmissible heаrsay, other evidence against Askew was sufficient to support the convictions.
Livingston v. State,
9. Askew, who is African-American, contends the trial court erred in rejecting his claim under
Batson v. Kentucky,
A Batson challenge initiates a three-step process requiring first that the party challenging the strikes establish a prima facie inference that the strikes were exercised with racially discriminatory intent. If a prima facie case of racial discrimination is established, under the second and third steps, the burden of production shifts to the proponent of the strikes to give race-neutral reasons for the strikes, and the trial court then considers the reasons given and decides whether the challenger has proven discriminatory intent. During this process, the burden of persuasion as to discriminatory intent does not shift from and remains with the сhallenger.
Griffeth v. State,
The State struck one juror because he did not give honest answers to questions regarding prior arrests, the second juror because he had a personal relationship with one of Askew’s attorneys, and the third juror because she did social work for a state agency. The State expressed concerns that the first juror may be biased against the State because of negative involvement with law enforcement, that the second juror would favor Askew because he knew one of his attorneys, and that the third juror may be favorable to the defense because of her involvement in social work. Thеse were clear and reasonably specific explanations for the strikes based on factors other than race and thus satisfied the requirement to give race-neutral reasons.
Alford v. State,
10. There is no merit to Askew’s cоntention that he was improperly convicted in violation of OCGA § 24-4-8 on the uncorroborated testimony of Jackson, who claimed to be his accomplice. In addition to Jackson’s testimony that he and Askew committed the
11. Cоntrary to Askew’s contention, the trial court properly sentenced him to life imprisonment without parole. Based on evidence that Askew had four previous felony convictions, he was sentenced pursuant to the recidivist provisions of OCGA § 17-10-7 (c) which provides:
[A]ny person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state other than a capital felony must, upon conviction for such fourth offense or for subsequent offenses, serve the mаximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.
OCGA § 16-8-41 (b) provides that “[a] person convicted of the offense
of armed robbery shall be punished by death or imprisonment for life or by imprisonment for not less than ten nоr more than 20 years.” OCGA § 16-8-41 (d) provides that “[a]ny person convicted under this Code section shall, in addition, be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.” It follows that the trial court was mandated in this case to sentence Askew to life imprisonment without parole.
Howard v. State,
Judgment affirmed.
Notes
The statement was later introduced by the State at trial because it was inconsistent with alibi testimony produced by Askew.