In a four-count indictment, the appellant, Robert James Billings,
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was charged with armed robbery, two counts of aggravated assault, and possession of a firearm by a convicted felon. A co-defendant, Derrick Ladell Slappey, was also charged with armed robbery and two counts of aggravated assault.
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Following a trial by jury, Billings was found guilty of all of the offenses. The trial court subsequently vacated the jury’s verdict on one charge of aggravated assault because the indictments drawn for armed robbery and the aggravated assault alleged precisely the same shooting. See
Lowery v. State,
The evidence produced at trial by the State showed that Robert Shannon (Shannon), Jessie Shannon, and their 16-month-old daughter stopped at a Hampton Inn in Tift County on the evening of February 6, 1992. As they entered their motel room at approximately 9:00 and attempted to close the door, Billings suddenly appeared in the doorway wielding a gun, and demanded Shannon’s wallet. Although Shannon told Billings to leave, Billings again demanded Shannon’s wallet and threatened to kill his wife if his demands were not met. Shannon tossed his wallet outside of the door onto the walkway of the motel. At Billings’ request, a 15-year-old accomplice picked up the wallet and informed Billings of its contents. The assailants fled after removing approximately $2,000 in cash from the wallet. Later that evening Billings was seen in a trailer park in the vicinity of the motel, and fled on foot as he was approached by a deputy sheriff. The Shannons positively identified Billings as their assailant on the day after the incident from photographs in mug books, and again identified him in court at trial. Over Billings’ objection, the pictures identified by the Shannons and the mug books were admitted in evidence.
In addition to the Shannons, the State presented the testimony of Slappey and the 15-year-old accomplice. Both men testified that Billings robbed the motel patron and shared the proceeds of the robbery with them. Raymond Drennon, an investigator with the City of Tifton Police Department, testified about the contents of a custodial statement voluntarily made by Billings during an interview on February 25, 1992, the morning after his arrest for a parole violation. The interview was initiated by Drennon and another investigator. In his inculpatory statement, Billings admitted that he and two accomplices appeared at Shannon’s motel door armed with a .22 revolver, and demanded Shannon’s wallet. After Shannon complied with his request, he and his accomplices fled on foot and later split the robbery proceeds. Evidence on Billings’ 1991 felony conviction for robbery by in *127 timidation was also admitted after the jury returned a guilty verdict on the armed robbery and aggravated assault charges.
1. Billings maintains that the evidence produced at trial was insufficient to support his conviction for the offenses charged. On the contrary, the uncontroverted evidence produced at trial showed that Billings, a convicted felon, robbed Shannon of the contents of his wallet while armed with a gun, and threatened to kill his wife. While Billings challenges Shannon’s pre-trial identification of him as the perpetrator due to Shannon’s alleged uncertainty, any “uncertainty expressed by the victim regarding his [pre-trial] identification of [Billings] was merely a factor to be considered by the jury in determining the weight of this testimony.”
Buckner v. State,
2. Billings further enumerates as error the trial court’s admission of his inculpatory statement. Prior to trial, a Jackson v. Denno hearing was conducted to determine the voluntariness of Billings’ custodial statement. At the hearing, Drennon testified that Billings signed a rights waiver form in his presence prior to questioning and after he verbally acknowledged that he understood those rights. The form delineated his Miranda rights, and those rights were read aloud to Billings twice before the statement was given. By signing the form, Billings acknowledged that no promises or threats were made to him and no pressure or coercion of any kind had been used against him. Drennon further testified that Billings appeared to understand all of these communications, and that no coercion, threats, or promises of any kind were utilized to obtain the waiver of rights and statement during the 52-minute interview. It was also established at the hearing that Billings was not under the influence of alcohol or drugs, that he understood English, could read and write, and had an eleventh grade education. The other officer present during the interview appeared at the hearing but did not testify. Billings did not testify and did not present any evidence to rebut the officer’s testimony. After the hearing, the trial court found as fact based on the testimony of the officer that Billings had been fully advised of his constitutional rights, that his statement was freely and voluntarily made without hope of benefit or reward, or as a product of duress, and that he was not acting under any mental or physical disabilities which prevented him from under *128 standing his rights.
“In ruling that the in-custody statement given by the accused was admissible, the trial court must upon consideration of the totality of the circumstances, be satisfied by a preponderance of the evidence that the statement was freely and voluntarily given, and the court’s ruling, including findings as to factual matters and credibility, will not be disturbed on appeal unless clearly erroneous. [Cits.]”
Connerly v. State,
3. We reject Billings’ assertion that the trial court erred in refusing to allow him to cross-examine an officer who was present when Billings made his incriminating statement but did not testify at the
Jackson v. Denno
hearing. “The right of a thorough and sifting cross-examination shall belong to every party
as to the witnesses called against him.”
(Emphasis supplied.) OCGA § 24-9-64. This witness was not called to testify and did not present any direct testimony against Billings. Cf.
Davis v. State,
4. In two separate enumerations of error, Billings asserts that the trial court erred in failing to grant his alternative motion to dismiss or disqualify the district attorney’s office from the prosecution of this case based upon a conflict of interest and an appearance of impropriety. Beth McFadyen, an assistant district attorney at the time of trial, represented Slappey while employed with the public defender’s office and negotiated his guilty plea in December 1992. Billings was also represented by the public defender’s office prior to the assignment of outside counsel based upon a conflict of interest.
A conflict of interest warranting the disqualification of a prosecuting attorney “has been held to arise where the prosecutor previously has represented the defendant with respect to the offense charged, or has consulted with the defendant in a professional capac
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ity with regard thereto. . . .”
Williams v. State,
5. Next, Billings maintains that the trial court erred in allowing the State to impeach its own witness by the use of prior inconsistent statements based upon the prosecutor’s statement in his place that he was surprised by the response of the witness. However, “[a] party may impeach its own witness with a prior inconsistent statement without any showing of entrapment or surprise, [cits.].”
Rollins v. State,
6. Billings further contends that the trial court erred in admitting a photograph of the Shannon’s daughter taken a few months prior to the incident in question because the photograph lacked probative value and inflamed the jury. Assuming arguendo that the photograph
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was erroneously admitted, it is highly probable that any error in the admission of this evidence did not contribute to the judgment.
Watkins v. State,
7. Next, Billings maintains that the identification mug shots and mug books were unduly prejudicial, improperly placed his character in issue, and were improperly admitted over his objection. We disagree. The mug shots and mug books were introduced by the State for identification purposes and did not suggest that Billings had been the subject of prior arrests or convictions for other offenses. “It is well settled that the mere admission into evidence of a picture of defendant with an identifying number does not indicate that the defendant was guilty of any previous crime and does not place his character in issue.” (Citations and punctuation omitted.)
Dorsey v. State,
8. Lastly, Billings asserts that the trial court erred in failing to require the district attorney to disclose under the authority of
Brady v. Maryland,
Judgment affirmed.
Notes
In December 1992, prior to trial, Slappey pled guilty to a reduced charge of robbery by force for his participation in the incident.