Glenn v. StateGlenn v. State
A DeKalb County jury found appellant Delron Glenn guilty of malice murder in connection with the shooting death of John Tanner.1 Glenn raises four enumerations of error pertaining to his trial: (1) the trial court erred in denying his motion in limine to prevent lay witness identification testimony;
I.
The facts, in the light most favorable to the verdicts, show the following. On February 3, 2015, John Tanner, accompanied by an unknown female, went to an Affordable Inn motel. When he arrived at his room, he encountered Denard Pryor, who was there with another man nicknamed “Black.” Tanner left with Pryor to get a laptop out of Tanner‘s car, which was parked in the motel parking lot. Tanner then moved his car around the corner of the building.
Meanwhile, Glenn‘s ex-girlfriend, Teneshia Johnson, drove Glenn to the same Affordable Inn motel. She dropped Glenn off at the back of the motel, where he met his brother and eventual co-defendant, Calvin Glenn,
Tanner was out of his car, with Calvin and Glenn following him, when the two men began “roughing up” Tanner. Tanner then managed to get back inside his car, but Calvin and Glenn followed Tanner to his car and proceeded to steal Tanner‘s briefcase, keys to his home, and an LG MS395 cell phone. During the “roughing up” and the robbery, witnesses heard a gunshot. Calvin and Glenn then got out of Tanner‘s car and ran away. Glenn was spotted with a small silver gun in his hand as he ran. The men dropped a red cell phone and a key ring during their flight.
In response to a 911 call, police arrived at the Affordable Inn shortly after the shot was fired. They found a car that was still running with the door open. Tanner was found unresponsive in the driver‘s seat. Officers collected a .25 caliber cartridge casing, a number of business cards, a video
The motel manager gave police the video surveillance recording that captured Tanner‘s last moments. The recording showed Tanner being taken to the ground by two men on the car‘s left side while two other men ransacked the car from the right side. The manager thought she recognized two of the people in the video, whom she knew by their nicknames “Fat” and “Man.” “Fat” was later determined to be Pryor, and “Man” was later determined to be Kitchens. The manager identified Kitchens because he stuck his face into the camera and because he was known to her since he had been banned from motel property. The video also showed Kitchens and three other men fleeing the parking lot via a “cut path” that led to the Hidden Woods apartments on the other side of the motel. A search of the path turned up the key ring and red cell phone. Police issued a BOLO (be on the lookout) notice describing the suspects; minutes later, Calvin was arrested
Six days after the crime, Kitchens was arrested. He admitted to serving as a lookout at the corner of the motel building, but pinned the murder on Calvin and Glenn despite denying that he ever saw the actual shooting. Kitchens identified the fourth male by the nickname “Red.” He told police that Calvin went by the street name “Kirkwood,” while Glenn went by the name “Uzi.” Kitchens illuminated a motive: money. Calvin had seen Tanner at a nearby gas station earlier that day and became upset because Tanner owed him money for drugs. Calvin called his brother to meet him and confront Tanner over the money.
Johnson was shown the video recording, along with still photos, and identified Glenn as being one of the men shown. She acknowledged, both before and during trial, that she could not see his face well, but “could just tell” the man in the video was Glenn. She, like Kitchens, denied being present when the shooting occurred.
DeKalb County police arrested Glenn at his sister‘s apartment. He had resided there for two or three weeks. In addition to the arrest warrant issued for Glenn, Detective Keith McQuilkin obtained a search warrant for the
Prior to trial, Calvin and Glenn filed a motion in limine seeking to block lay witnesses from identifying them as the two men shown on the motel surveillance video or still photographs taken from that video. The trial court denied the motion, and Pryor, Johnson, and Kitchens were all questioned about Glenn‘s appearance in the video. Glenn also moved to suppress the search of his sister‘s apartment and the resulting seizure of the LG MS395 cell phone. After a hearing, the trial court denied Glenn‘s motion to suppress.
Once trial began, the defense maintained that the video did not show Calvin or Glenn. Over Glenn‘s objection, the jury heard from Pryor, Kitchens, and Johnson that Glenn was the person in the video.3 Johnson also
Although Glenn has not challenged the sufficiency of the evidence in this case, we have reviewed the record and find that the evidence is sufficient to enable a rational trier of fact to find, beyond a reasonable doubt, that Glenn was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
II.
Glenn first contends that the trial court erred in denying his motion in limine to exclude testimony by lay witnesses identifying him as one of the perpetrators in the video surveillance and photographs. Glenn contends that Georgia law prohibits lay witness identification based on photos or video.
Georgia‘s new Evidence Code permits lay witness testimony in the form of opinions or inferences that are rationally based on the witness‘s perception, helpful to a clear understanding of the determination of a fact in
In United States v. Pierce, 136 F3d 770, 774 (11th Cir. 1998), the Eleventh Circuit held that where there is “some basis for concluding that [a] witness is more likely to correctly identify” a defendant as “the individual depicted in surveillance photographs,” then “lay opinion testimony identifying a defendant in surveillance photographs is admissible under Rule 701.” In so holding, the Pierce court rejected the defendant‘s argument that lay witnesses were no better equipped than juries to compare the defendant‘s appearance with the individual depicted in surveillance images. Id. at 773.
Under the circumstances of this case, we find no meaningful distinction between lay witness testimony identifying the defendant in either photographs or in video recordings. See, e.g., United States v. Gholikhan, 370 Fed. Appx. 987, 991 (II) (11th Cir. 2010) (relying on Pierce to find no error in admitting lay witness testimony under Rule 701 identifying defendant‘s voice on monitored telephone calls); see also United States v. Contreras, 536 F3d 1167, 1170 (II) (A) (10th Cir. 2008) (finding no error in admitting, under Rule 701, witness‘s identification of defendant from security footage because witness‘s familiarity with defendant better equipped witness to identify defendant from that footage than jury). Indeed, in most cases, the opportunity to observe a person‘s mannerisms, gait, and similar characteristics depicted in video footage will increase the likelihood that a lay witness familiar with a defendant will be better equipped than jurors to identify the defendant from such images.
III.
Glenn‘s second contention is that the trial court committed reversible error by denying his motion to suppress evidence seized during the search of his sister‘s apartment. The State must prove that the challenged search was supported by a factually sufficient warrant. Here, Glenn contends that the State failed to satisfy its burden in two separate ways: (a) because the underlying affidavit does not demonstrate probable cause that Glenn murdered Tanner, and (b) because the State failed to establish the required nexus between the items particularized in the search warrant and the place to be searched. We disagree.
Glenn‘s first attack on the warrant, that it did not show probable cause that he was the murderer, does not succeed. “The test of probable cause requires merely a probability — less than a certainty but more than a mere suspicion or possibility.” Brown v. State, 269 Ga. 830, 831 (2) (504 SE2d 443) (1998) (citations and punctuation omitted). A warrant to search a
The “fair probability” standard is easily reached here. As recounted in the affidavit supporting the search warrant, Glenn had been identified through still photographs taken from the surveillance video of the robbery and shooting. In addition, Glenn had been identified as the actual shooter by another person involved in the crime, and a warrant for Glenn‘s arrest had been issued. Based on the totality of the circumstances, the magistrate judge was authorized to conclude that probable cause existed for the issuance of the search warrant.
Glenn‘s second argument, that there was an insufficient nexus between the items to be seized and the location of the search, fares no better than his first. Glenn agrees that several witnesses had identified him as the shooter before officers applied for a search warrant, and numerous items relating to
IV.
Glenn next contends, citing Arizona v. Hicks, 480 U. S. 321 (107 SCt 1149, 94 LE2d 347) (1987), that the removal of the LG cell phone‘s battery to discover the serial number on the phone constituted an independent search that required a warrant. He is incorrect. Because the cell phone was found in
Consistent with the Fourth Amendment, an officer may seize evidence of a crime that is in plain view without a warrant and even if discovery of the evidence was not inadvertent. Horton v. California, 496 U. S. 128, 130 (110 SCt 2301, 110 LE2d 112) (1990); see also State v. Tye, 276 Ga. at 563 (3) (holding that there is no requirement that an officer know with certainty that an item seized is evidence of a crime at the time of the seizure, only that there be probable cause to believe that this is the case). And Hicks itself described the question in that case as “whether the ‘plain view’ doctrine may be invoked when the police have less than probable cause to believe the item in question is evidence of a crime or is contraband.” Hicks, 480 U. S. at 323.
Here, officers were lawfully executing both a search warrant and arrest warrant. The LG phone at issue was clearly visible on the floor near the door. The officer who seized the phone knew that a phone of the same model was missing from the victim‘s car, and thus had probable cause to believe that the cell phone he saw had been stolen from the victim and was evidence
V.
Finally, Glenn contends that his trial counsel rendered ineffective assistance by failing to redact statements, which the jury heard, directly communicating Kitchens‘s belief that Glenn was affiliated with the Bloods gang. Specifically, in his interview, Kitchens stated that Uzi was Glenn‘s “gang name” and that on the night of the crime Glenn told his brother “let me be that,” which Kitchens took to mean “give me the gun” in Blood code. Glenn cannot succeed on this claim either.
As an initial matter, Glenn failed to raise his ineffective assistance of counsel claim in his motion for a new trial, which was amended with new counsel, which means that it is not preserved for review. “To preserve the issue of ineffective assistance of previous counsel, new counsel must raise the issue at the earliest practicable opportunity of post-conviction review or the issue is waived.” Ruiz v. State, 286 Ga. 146, 148 (2) (b) (686 SE2d 253) (2009); see also Prince v. State, 295 Ga. 788, 793 (2) (b) (764 SE2d 362) (2014). Accordingly, he has not preserved this issue for review on direct appeal.
Decided October 16, 2017.
Murder. DeKalb Superior Court. Before Judge Hunter.
Matthew K. Winchester, for appellant.
Sherry Boston, District Attorney, Lenny I. Krick, Harry S. Ruth, Anna G. Cross, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.