LAWRENCE v. THE STATE.
A17A0117
Court of Appeals of Georgia
Decided June 20, 2017
Reconsideration denied July 13, 2017.
341 Ga. App. 396 | 802 SE2d 859
McMILLIAN, Judge.
Gibson, Deal & Fletcher, James B. Deal, Sr., for appellant. David S. Lipscomb, for appellee.
Appellant Kendell Lawrence was convicted of armed robbery, kidnapping, rape, aggravated sodomy, and possession of a firearm during the commission of a felony, involving two successive victims on the same night. After the trial court denied Lawrence‘s motion for new trial, as amended, Lawrence then filed this appeal. Finding no error, we affirm.
Lawrence began his crime spree on the evening of December 8, 2011. Sometime between 6:00 and 7:00 p.m., M. M. exited a MARTA bus on Old National Highway near her home and walked to a convenience store, where she purchased snacks using her EBT debit card.1 After she made her purchases, she started walking toward her neighborhood when she noticed a vehicle, which she said looked older and was “loud,” speed past her, and a short time later she noticed a man walking toward her. As the man approached her, he told her not to do anything crazy, and she heard a clicking sound, which she said sounded like a gun being cocked. The man asked her if she had money, and she told him she did not have any cash. He then blindfolded her, grabbed her arm, and walked her across the street to a vehicle where they both got into the back seat. After someone else started driving the car, they took her cell phone from her pocket, and then the person in front instructed the person next to her to have her lie down so she did.
M. M. testified that the car came to a stop about seven to ten minutes later, and she was told to exit the vehicle. M. M. remained blindfolded, but she said that it felt like she was walking through a wooded area down a gravel or dirt road. After a minute they came to a house, and the men helped her crawl through a window to get inside, where she noticed a musty smell. The men walked her upstairs where he instructed her to take off her “bottoms,” which she did. The men then took turns sexually assaulting her vaginally and orally, and M. M. testified that when one of the men put his penis in her mouth, she tasted rubber that she thought was from a condom. A short time later, the men made her use a douche and also gave her a wet washcloth so she could wash out the inside of her mouth. When she finished, she was told to get dressed.
At some point, the men also asked the victim if she had any money on her EBT card, and they took the card and her backpack. She said they helped her crawl back out the window, and they got back in the car and drove her back to the area where they had abducted her. They removed the blindfold and pointed her in the direction they wanted her to walk and told her not to look back. After she heard them driving away, she ran into a nearby business where she told them she had been robbed and asked for a phone to call police and her boyfriend. Her boyfriend and her mother arrived, and M. M.
Later that same night, the second victim, L. W., went to a bar where she worked to meet friends for drinks. She said it was approximately 11:00 p.m. when she arrived, and she parked in a lighted area where she sat in her car to wait on her friends. While she was waiting, she took about $600, her wallet, and credit cards and placed them in the glove box because she did not want to take them inside the bar with her.
When L. W. saw her friend‘s car pull into the parking lot, she opened her car door and started to exit her vehicle. She noticed a “raggedy sounding” faded red or burnt orange older model “rodeo” or similar type vehicle pulling into the parking lot. As she was locking her car door from the outside, a man, whom she described as approximately five feet seven inches tall and brown skinned, approached her and asked for a cigarette. When she reached for a cigarette, she felt him put a gun to her side. She offered him her purse, and he told her to open the car and that he knew that she had something inside the car. He then told her to get back inside her car, and as she complied, she heard the noisy vehicle she had noticed earlier start up again. She said she was crying and her hands were still shaking so badly she could not drive, and he told her to “get it together,” or that he would kill her.
L. W. started driving, with the man giving her directions to drive to Old National Highway. He also went through the glove box and took out the money she had placed there. The man then instructed L. W. to go to the ATM to withdraw money from her account with her check card, which she did.
L. W. returned to Old National Highway, and the man continued to give her directions about where to drive. After about ten minutes, they drove into a residential neighborhood where she noticed a distinctive sign, and they turned onto a dead-end road and came to a stop. The man instructed her to turn off the lights and the car, and she heard someone tapping on the passenger window next to where the man was seated. The man opened the window, and she heard him speaking to the other man, who said they should “dead her.” The men then blindfolded her. The second man, whom L. W. described as having a deeper voice, then came around to the driver‘s door, opened it, took L. W. by the arm, and lifted her out of the car. She testified she felt one of the men place a gun against her back, and she could tell when they left the paved surface and began walking on something crunchy, which she saw was pine straw when she peered under her blindfold.
Eventually, she could hear a window being raised, and she was assisted in stepping through. After leading her up some stairs, they took her to a room where they told her to undress. She said that she could tell the floor in the room was carpeted and that it was damp2 and had an odor like it was old. The men then took turns sexually assaulting her vaginally and orally. After the men finished with her, the deeper voiced man inserted something into her vagina, and she could feel the liquid going in and running down her legs. She then heard what sounded like water being squeezed out of a wet towel, and she felt someone put the towel in her mouth and wipe out the inside of her mouth. She said that she was then cleaned front to back around her vagina and “behind.” They repeated the process, and then they helped her put on her clothes.
The softer voiced man then took L. W. back to her car, told her to count to 100, and allowed her to drive away. She drove back to the bar where she worked, found her manager there, and called 911. The police came and she was transported to the hospital, where a sexual assault examination was performed.
After she left the hospital with a male friend who had met her there, she told him that she wanted to retrace her steps to see if she could find where the men had taken her. They were able to find the place where she thought she had been taken, which turned out to be part of the Pine Tree Trail Condominium complex. There, they found that the police were already at the location based on
The evidence also showed that at that time, Lawrence was living in unit 1113 of the Pine Tree Trail condominium complex with his father and father‘s girlfriend, Jasmine Morgan. The evidence also showed that he owned a red Isuzu SUV, which was usually parked in front of their condo. Deantwan Allen also lived in the condominium complex with his girlfriend, Ashley McDaniel, and her family. Allen and Lawrence were close friends and were often together.
McDaniel, her mother, and Jasmine Morgan each testified and/or gave statements to police about the events of December 8, 2011. McDaniel‘s mother testified that she was walking home from the bus stop after work when Allen and Lawrence drove by in Lawrence‘s vehicle and asked her if she wanted a ride. She accepted and they dropped her off outside her condo. McDaniel confirmed that she saw Allen when she looked out the window as Lawrence was dropping off her mother around 5:00 to 6:00 p.m. She did not see Allen again until the next day.
Morgan testified that on the night of December 8, 2011, she was home alone and had fallen asleep on the sofa watching television. She woke up as she heard someone come into the house and go into the kitchen. She got up and looked outside and did not see Lawrence‘s red Isuzu parked in its usual spot in front of the condo, but when she went upstairs and looked, she saw it was parked farther away than normal, more up the hill. She testified that the unit next door to their unit was empty and had been so for a number of years.
In her statement to police, Morgan recalled additional details about that night, including that the person who came in used a key to enter the condo, and that she heard them go into the kitchen and then leave a short while later. She said that she asked Lawrence about it the next day, and he told her that he had given the key to Allen to come into the house. She also told police that she had seen Allen with a firearm.
L. W. later met with a Georgia Bureau of Investigation sketch artist to create a sketch of the softer voiced man who had approached her in the parking lot and abducted her.3 Shortly after the incident, McDaniel‘s mother saw a sketch on the news that she thought might look like Allen, and McDaniel looked at it also. She testified at trial that she asked Allen about the sketch that was on television. Initially, she testified only that he told her not to worry about it and, at first, continued to deny that he said anything specific about Lawrence‘s involvement, but after repeatedly being refreshed with her statement to police, McDaniel recalled telling police that Allen had told her that he got caught up in something with Lawrence, that a girl was robbed and raped, and that it was Lawrence who raped the girl.
Evidence was also presented that the forensic samples collected in the sexual assault examinations performed on L. W. failed to reveal the presence of any human male DNA, which the examiner explained could be the result of her being forced to wash or the use of condoms. Human male DNA was detected on some of the swabs obtained from M. M., though, and this DNA was subsequently found to match Allen‘s profile. L. W. also identified Allen from a photographic lineup, and M. M.‘s phone was found under his mattress in the condo where he lived with McDaniel. L. W. was also able to identify Lawrence‘s vehicle as the one used in her abduction, and upon searching it, the police found the EBT receipt from M. M.‘s purchase at the convenience store on Old National Highway.
Lawrence first contends that the trial court erred by allowing McDaniel to testify that Allen told her that Lawrence raped the women,4 arguing that the statements were hearsay and not subject to the co-conspirator exception.5
[a] statement by a coconspirator of a party during the course and in furtherance of the conspiracy, including a statement made during the concealment phase of a conspiracy. A conspiracy need not be charged in order to make a statement admissible under this subparagraph.
The trial court found the statements Allen made to his girlfriend were made during the concealment phase of the conspiracy and that the statement was admissible even if the girlfriend who testified about Allen‘s statement was not part of the conspiracy. On appeal, Lawrence asserts that the exception does not apply because the trial court erroneously found that the girlfriend was a co-conspirator and, in any event, the statement was not made in furtherance of the conspiracy.
We begin our analysis by considering the text of
We now turn to the question of whether Allen‘s statement was made in furtherance of the conspiracy.
Although Lawrence acknowledges that concealment may be part of a conspiracy, he asserts that the particular statement was not made in furtherance of the conspiracy because Allen merely sought to assign blame to someone else for the crimes. See United States v. Blakey, 960 F.2d 996 (11th Cir. 1992). However, Blakey is readily distinguishable. The co-conspirator in Blakey
In contrast, Allen made the statement to his girlfriend after she became suspicious of his involvement in the crime. By attempting to minimize the extent of his involvement, Allen was trying not only to mollify his girlfriend but also to dissuade her from going to police, which in turn furthered the aim of covering up both men‘s involvement in the crime. See Grimes v. State, 296 Ga. 337, 346 (2) (a) (iii) (766 SE2d 72) (2014) (“The concealment phase was ongoing because the statements in question were not made to police, the investigation was ongoing, and the other conspirators . . . were still at-large.“). It can hardly be doubted that concealing their identities was one of the primary aims of the conspiracy as demonstrated by the fact that they blindfolded the victims and took great efforts to remove any DNA from the victims’ bodies. Accordingly, Allen‘s statement was properly admitted under
2.
Lawrence also contends that the trial court erred by failing to instruct the jury on the necessity of accomplice corroboration under
In reviewing a failure to charge for plain error, “we will reverse the trial court only if the instructional error was not affirmatively waived . . . , was obvious beyond reasonable dispute, likely affected the outcome of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings.” (Citation and punctuation omitted.) Herrington v. State, 300 Ga. 149, 151 (2) (794 SE2d 145) (2016); Ferguson v. State, 335 Ga. App. 862, 870 (3) (783 SE2d 380) (2016).
It is true that our case and statutory law plainly require a charge on corroboration when an accomplice is the only witness testifying about an inculpatory fact. And Lawrence correctly points out that our Supreme Court has specifically determined that the failure to do so may under certain circumstances constitute plain error necessitating a retrial. See Stanbury v. State, 299 Ga. 125, 129 (2) (786 SE2d 672) (2016). However, we have found no direct authority, and Lawrence has cited none,7 in which our appellate courts have held that an accomplice corroboration
3.
Lastly, Lawrence argues that without the testimony concerning the hearsay statement Allen made to McDaniel about his involvement, the evidence is insufficient to support his convictions. However, as set out in Division 1, we have determined that the trial court did not err in admitting this testimony. Moreover, we have independently examined and described the evidence presented at trial and find it was more than sufficient to authorize a jury to find Lawrence guilty of the crimes charged. See Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979). Accordingly, Lawrence is not entitled to reversal on this basis.
Judgment affirmed. Barnes, P. J., and Mercier, J., concur.
McMILLIAN
JUDGE