A DeKalb County jury found appellant Deiron Glenn guilty of malice murder in connection with the shooting death of J ohn Tanner.
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, co-indictee Stanley Kitchens,
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 surveillance recording, and several fingerprints from the crime scene. Officers also noticed that Tanner’s cell phone holder was empty and that there was an empty box for an LG MS395 phone in the car’s back seat. Tanner died from a single .25 caliber gunshot wound to his abdomen; no firearm connected to that casing or bullet was ever recovered.
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
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 apartment. The warrant is discussed more fully below in relation to one of Glenn’s enumerations of error. Although the warrant did not include a cell phone as one of the items to be seized, Detective McQuilkin seized an LG MS395 cell phone from the floor of the apartment. At police headquarters, he removed the cell phone’s battery and confirmed that the serial number matched the serial number on the empty box that was found in the back seat of Tanner’s car.
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.
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,
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.
In United States v. Pierce,
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,
In this case, the video recording was of such poor quality that the average juror would not be able to distinguish the faces by themselves. The witnesses, who had known Glenn prior to the crime, were in a better position to correctly identify Glenn in the video than the jurors. Further, the ex-girlfriend’s identification testimony was required to identify Glenn in the video because his appearance had changed since the time of the crime. Thus, we conclude that the trial court did not abuse its discretion in permitting lay witnesses to give testimony identifying Glenn as one of the people in the motel surveillance video.
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
The duty of an appellate court reviewing a search warrant is to determine, based on the totality of the circumstances, whether the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant. State v. Palmer,
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,
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 the killing had not yet been recovered, including both the gun used to kill Tanner and Tanner’s personal effects. Moreover, Glenn does not dispute that he had been residing in his sister’s apartment that was targeted by the warrant or that the warrant so stated. Under these circumstances, the fact that Glenn, a suspect who had been arrested for the crime under investigation, lived at the address listed in the search warrant meant that there was at least a “fair probability” that items related to the crime would be found there. See Murphy v. State,
IV.
Glenn next contends, citing Arizona v. Hicks,
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,
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 of a crime. The existence of probable cause to believe that the phone was stolen, combined with the fact that the phone was in plain view, rendered the seizure reasonable even though the phone was not particularized in the search warrant. See State v. Hill,
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,
Judgment affirmed.
Notes
The crimes occurred on February 3, 2015. On April 28, 2015, a DeKalb County grand jury indicted Glenn for malice murder, among other crimes. After a trial held August 17-21, 2015, the jury found Glenn guilty of malice murder, two counts of felony murder, one count of armed robbery, one count of aggravated assault with a deadly weapon, and one count of possession of a firearm during the commission of a felony. The trial court sentenced Glenn to life in prison for the malice murder conviction and five years to be served consecutively for possession of a firearm during the commission of a felony. The trial court vacated the remaining counts. Though the trial court’s nomenclature was incorrect, the result was proper. See Malcolm v. State,
Kitchens was indicted with the Glenn brothers but entered a guilty plea and testified at their trial.
F or his part, Kitchens refused to identify Glenn as one of the people in the video. The State countered with an impeachment witness who averred that Kitchens had previously identified all of the people, including Glenn, in the video.
Glenn’s argument that Georgia case law on this matter prior to enactment of the new Evidence Code constitutes a common law rule that must still be applied is unavailing. By using language nearly identical to Federal Rule of Evidence 701 (a), which case law shows addressed the matter at issue, the enactment of OCGA § 24-7-701 (a) was a statutory modification to the admissibility of such evidence and displaced prior precedent on the matter. After all, to the extent that the General Assembly adopted the federal rules, it did so with an “understanding of how those rules are applied in federal courts.” Paul S. Milich, Georgia Rules of Evidence § 1:3 at p. 26 (2016-2017 ed.).
We reject Glenn’s contention that the affidavit lacked probable cause because there were two men involved in Tanner’s murder and Glenn’s “sole participation” was firing the weapon that killed the victim and not stealing items from the victim. The search warrant specifically sought firearms and ammunition related to the murder.