This appeal arises from armed robberies and burglaries at two locations in Louisville, Georgia on the same night. Appellants Merkeith Lane and Dominique Lane were two of the five persons charged with the crimes; four of the five were tried together and convicted. Appellants claim a number of errors at trial, including that: (1) a custodial statement by Merkeith was not freely and voluntarily given and therefore inadmissible; (2) the trial court erred in closing the trial to the public for the testimony of one witness; (3) the trial court erred in allowing the introduction of nontestifying co-defendants’ statements that implicated Appellants; (4) Dominique’s trial counsel was ineffective for failing to object to the in-court identification by one of the victims; (5) the trial court failed to instruct the jury that the testimony of an accomplice required sufficient corroboration to establish
Reviewing the evidence in the light most favorable to the jury’s verdict, as we must on appeal,
During this exchange, Fleming was able to identify two of the perpetrators, Merkeith and Dominique Lane, who were his cousins and whom Fleming has known all of their lives. Fleming also recognized one of the other perpetrators, B. M., as the one who shot the gun. However, upon being interviewed by law enforcement, Fleming did not initially disclose that he recognized Appellants, explaining that “You won’t believe that two people in your life that you knew all your life would try — would do something like that.” Fleming later received anonymous threatening calls at his workplace about testifying in court.
Also on the morning of July 2, 2007, Jacountress Martin and his friend Travis Washington arrived at Martin’s home in Louisville, Georgia. Martin went inside where he encountered five intruders and was shot in the hand and thigh. Washington did not identify any of the perpetrators, and Martin did not testify at trial.
A few days after the robbery, Investigator Clark Hiebert interviewed Merkeith Lane.
After the trial court denied the motion to exclude the statements, Investigator Hiebert was permitted to testify about Merkeith’s confession while substituting the words “other” or “others” in place of the names of the other defendants with the exception of B. M. who
At trial, B. M. testified against the others. B. M. was 16 years old at the time of the robberies and had entered a plea deal that would allow him to be treated as a juvenile on the charges. Prior to B. M.’s testimony, the State requested that B. M. be treated as a juvenile and that the courtroom be closed for his testimony. The trial judge asked defense counsel if they had any objections to the closing of the courtroom, and none objected. B. M. testified that he, along with Appellants, Kyle Gilmore, and Christopher Young went to rob the first residence where they encountered Eric Fleming. He also admitted carrying the gun that went off. After robbing the first residence, the five perpetrators went to the second residence also to rob it, and B. M. and at least one of the other co-defendants shot at Jacountress Martin. Christopher Young, Dominique Lane, and B. M. had guns; Merkeith Lane did not.
After trial, Appellants were each convicted of two counts of armed robbery, criminal attempt to commit armed robbery, and two counts of burglary. Merkeith’s counsel did not file a motion for new trial, but on July 14, 2011, the trial court authorized the filing of an out-of-time motion for new trial, which after a hearing, was denied. Merkeith timely filed his notice of appeal in Case No. A13A1357.
Dominique initially filed a motion for new trial on December 12, 2008, which was denied, and then a notice of appeal on August 31, 2009. After the appeal was docketed, Dominique raised an ineffective assistance of counsel claim against his trial and appellate counsel, leading to the appointment of new counsel, who filed a motion to remand to pursue the ineffectiveness claim. This Court granted the motion for remand, and the trial court heard and denied Dominique’s second amended motion for new trial. The appeal in Case No. A13A1358 followed.
Case No. A13A1357
1. Merkeith Lane contends that the trial court erred in not suppressing his statements under OCGA § 24-3-50 because they were induced by hope of benefit. Former OCGA §§ 24-3-50 and 24-3-51
To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury. The fact that a confession has been made under a spiritual exhortation, a promise of secrecy, or a promise of collateral benefit shall not exclude it.
The “slightest hope of benefit” refers to “promises related to reduced criminal punishment — a shorter sentence, lesser charges, or no charges at all.” Brown v. State,
“In determining the admissibility of a custodial statement during a Jackson v. Denno hearing, the trial court must consider the totality of the circumstances and apply a preponderance of the evidence standard.” (Citation and punctuation omitted.) Samuels v. State,
Come sentencing time, the district attorney says, Your Honor, we talked to this young man and he had an opportunity to work something out without all the expenses of a jury trial in this county, and now we’ve had two jury trials. We would like to see him receive the maximum on each count but to run consecutive rather than concurrent. And that means when one sentence is complete, then the next one starts. And I feel like on this case I wouldn’t be a bit surprised if the district attorney is going to want to go consecutive unless somebody decides to — the ones that decide to help theirself, they’re going to get a break.
Investigator Hiebert also referenced a conversation that he had with the district attorney’s office in which “[t]hey said, if Merkeith wants to get straight, if he wants to tell the truth, listen to him. If he don’t, we’ll deal with it.” After these exhortations, Merkeith again denied knowledge about the armed robberies. But after some further discussion about how the district attorney may favor the persons who “get straight” before trial, Merkeith began confessing to the armed robberies. The entire interview took 60 to 90 minutes.
Based on our review of the record, we find that the trial court correctly determined that the statements made by Investigator Hiebert do not contain an explicit or implicit offer for a reduced sentence such that they would constitute an impermissible hope of benefit. To the contrary, the investigator’s explanation of consecutive versus concurrent sentences and the options available to the district attorney’s office merely emphasized the seriousness of the charges. See Preston,
Moreover, we find Merkeith’s reliance on Canty v. State,
Accordingly, after examining the totality of the circumstances, we conclude that the trial court did not err in denying Merkeith’s motion to exclude his statement pursuant to former OCGA § 24-3-50. See Sosniak v. State,
2. Merkeith also urges us to consider as plain error the closing of the courtroom for the testimony of B. M. while conceding that trial counsel was given the opportunity to object and explicitly waived any objection. “The improper closing of a courtroom is a structural error requiring reversal only if the defendant properly objected at trial and raised the issue on direct appeal.” Reid v. State,
3. Merkeith also asserts that the trial court erred in allowing Investigator Hiebert to testify about statements made by his nontestifying co-defendants in violation of Bruton v. United States,
In Bruton, the United States Supreme Court held that in a jury trial with multiple defendants, the admission of a statement of a nontestifying co-defendant which inculpates the defendant unconstitutionally deprives that defendant of the Sixth Amendment right to cross-examine witnesses, even where the jury is instructed to limit its consideration of the statement to the co-defendant who made it. Bruton,
The statements by Dominique, Christopher Young, and Kyle Gilmore merely asserted that “others” were with B. M. sometime during the night and early morning hours of the armed robberies but did not inculpate Merkeith or anyone else in the actual crimes or place them at the crime scenes. Although other evidence linked Merkeith as part of the group with B. M. at the armed robberies, including Merkeith’s own confession and the victim’s identification, the Bruton rule only applies when the statements on their face incriminate the nontestifying defendant. Accordingly, these statements do not violate Bruton. See Moss,
Case No. A13A1358
4. Dominique Lane asserts that he received ineffective assistance of counsel because (a) his trial attorney did not move to suppress the in-court identification by one of the victims of the armed robberies nor did he move for a mistrial on the grounds that the witness’s identification had not been disclosed in discovery and (b) trial counsel did not request a jury charge that the testimony of an accomplice requires sufficient corroboration to establish Dominique’s participation in the crimes charged.
(a) Dominique asserts that his counsel was ineffective for failing to move to suppress the identification by victim Eric Fleming prior to trial, object to the in-court identification of Dominique, or move for a mistrial because the State allegedly failed to provide notice that Fleming could identify Dominique. At trial, Fleming testified that he recognized Dominique as one of his assailants, that he was related to Dominique, and that he had known Dominique his entire life. Fleming was also able to provide details about Dominique such as his nickname and where they had grown up together. At the motion for new trial hearing, trial counsel testified that he did not move to suppress the in-court identification because he found nothing objectionable to the testimony. However, counsel conceded that it would have been appropriate to file a motion to suppress the identification before trial.
Pretermitting the issue of whether the in-court identification procedures were unduly suggestive,
Moreover, there was no discovery violation upon which trial counsel could have sought a mistrial. OCGA § 17-16-7 requires the prosecution to produce any witness statement in its possession, custody or control when the witness is intended to be called at trial, but these obligations are not triggered when a witness makes an oral statement as in this case. See Forehand v. State,
(b) Dominique also asserts that his trial counsel was ineffective by failing to request a jury charge that the testimony of an accomplice requires sufficient corroboration to establish defendant’s participation in the crime. Former OCGA § 24-4-8 provides:
The testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including . . . felony cases where the only witness is an accomplice, the testimony of a single witness shall not be sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness . . . .7
“Slight evidence of defendant’s identity and participation from an extraneous source is all that is needed to corroborate the accomplice’s testimony.” (Citation and punctuation omitted.) Wooten v. State,
We also do not find plain error in the failure to instruct the jury that corroboration is required for the same reasons. See Brown v. State,
5. Dominique also asserts that the trial court erred in allowing Investigator Hiebert to testify about Merkeith’s custodial statements in violation of Bruton. Bruton,
Since Bruton was issued, the United States Supreme Court and our Supreme Court have considered the extent that custodial statements by nontestifying co-defendants must be redacted to exclude the name of the defendant in order to pass constitutional muster. See Richardson v. Marsh,
Following the lead of the U. S. Supreme Court, we hold that, unless the statement is otherwise directly admissible against the defendant, the Confrontation Clause is violated by the admission of a nontestifying co-defendant’s statement which inculpates the defendant by referring to the defendant’s name*313 or existence, regardless of the existence of limiting instructions and of whether the incriminated defendant has made an interlocking incriminating statement. A co-defendant’s statement meets the Confrontation Clause’s standard for admissibility when it does not refer to the existence of the defendant and is accompanied by instructions limiting its use to the case against the confessing co-defendant. The fact that the jury might infer from the contents of the co-defendant’s statement in conjunction with other evidence, that the defendant was involved does not make the admission of the co-defendant’s statement a violation of the Confrontation Clause.
(Emphasis supplied.) Id. at 803-804. See Burns v. State,
Here, Investigator Hiebert was allowed to testify to the existence of the “others” involved in the armed robberies, and given the evidence that five men committed the armed robberies, with four of them on trial and B. M. as a witness, the jury reasonably could have concluded that the “others” referred to Dominique and his co-defendants. Because Dominique did not have an opportunity to cross-examine Merkeith, his Sixth Amendment rights were violated. See Davis,
However, a Bruton violation does not require reversal “if the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the co-defendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the statement was harmless error.” (Citation and punctuation omitted.) Anderson v. State,
6. Dominique further contends that the admission of Merkeith’s custodial statements violated his Sixth Amendment right to confrontation under Crawford v. Washington,
7. Finally, Dominique contends that the evidence was insufficient to convict him of two counts of armed robbery with respect to two victims at the first residence,
Accordingly, upon review of the record, we find that the evidence was sufficient to enable a rational trier of fact to find Dominique guilty beyond a reasonable doubt of the crimes charged and upon which he was convicted. See Jackson v. Virginia,
Judgments affirmed.
Notes
“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Citation and punctuation omitted.) Goss v. State,
The interview was recorded, and the portion heard by the trial judge at the JacksonDenno hearing was transcribed. Jackson v. Denno,
OCGA §§ 24-3-50 and 24-3-51 have appeared together since their initial enactment in 1863, and are to be read in tandem. See Brown v. State,
There was no photo lineup used to identify Dominique.
Furthermore, Fleming’s delayed identification of Dominique provides no basis for challenging his conviction because trial counsel had the opportunity to cross-examine Fleming about why he failed to make the identification sooner and the possibility that Fleming misidentified Dominique. And Fleming explained that he did not identify his cousins because he was shocked that his relatives whom he has known their entire lives would rob him at gunpoint.
Although the testimony at the Jackson-Denno hearing was transcribed, argument by counsel was not.
Former OCGA § 24-4-8, which was effective at the time of trial, has been repealed as part of Georgia’s new Evidence Code. It has been re-enacted at OCGA § 24-14-8.
OCGA § 16-8-41 (a) provides in pertinent part: “A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.”
OCGA § 16-4-1 states: “A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.”
At the time of the offense, OCGA § 16-7-1 provided: “A person commits the offense of burglary when, without authority and with the intent to commit a felony therein, he enters or remains within the dwelling house of another or any building . .. .”