Fоllowing a jury trial, Keith McBurrows was convicted of two counts of armed robbery (OCGA § 16-8-41 (a)) and two counts of possession of a firearm during the commission of a felony (OCGA § 16-11-106 (b) (l)).
Viewed in the light most favorable to the jury’s verdict,
A few days later, on March 25, 2003, the second victim left work at 11:00 p.m. and drove to the same check-cashing store located on Campbellton Road. After the second victim received some money orders and cash, she exited the store and returned to her car. She got into her car and put her purse, money orders, and some envelopes on the seat and began to close the car door. McBurrows then snatched open the door, pointed a silver gun at the second victim’s head, and reached over the victim to turn off the car’s interior light. The second victim testified that at one point, she was almost face-to-face with McBurrows and saw his face completely. McBurrows warned the second victim to keep quiet, grabbed her purse and money orders, and took off running. The victim got out of her car and started yelling for help. Thе victim learned that her assailant left in a dark Ford Thunderbird and headed toward an apartment complex. The second victim subsequently called the police.
A responding officer met the second victim at the apartment complex. The officer spoke to the owner of the Ford Thunderbird. The owner, who had lent his vehicle to McBurrows and his brother, had just seen McBurrows return to the apartment complex with a woman’s purse that contained money orders. When questioned by the police, however, the owner liеd to police and said that nobody had recently been driving his vehicle. Since the second victim did not identify the owner of the vehicle as being involved in the robbery, the officer did not believe that the vehicle was involved in the robbery.
About a week later, on April 2, 2003, officers received information that two men were sitting in a parked car across the street from the check-cashing store on Campbellton Road, and the description of the vehicle matched the description of the car given by the victims. Officers rеsponded to the scene and subsequently arrested McBurrows. A search of the vehicle revealed a drive-out tag and a black and silver gun. A photo lineup was subsequently shown to both victims, who both positively identified McBurrows as their assailant.
1. McBurrows challenges the denial of his motion to suppress in several respects. In reviewing a trial court’s ruling on a motion to suppress, we may consider all relevant and admissible evidence of record introduced at the motion hearing or during trial. See Walker v. State,
[wjhile a trial court’s findings as to disрuted facts will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.
(Citation and punctuation omitted.) Id.
(a) McBurrows first contends that the officers lacked a reasonable suspicion to conduct the stop. We disagree.
A law enforcement officer may make a brief, investigatory stop of a vehicle when hе has a reasonable, articulable suspicion that the person stopped has been, or is about to be, engaged in criminal activity. This specific, articulable suspicion must be based on the totality of the circumstances — e.g., objective observations, information from police reports, the modes or patterns of certain kinds of lawbreakers, and the inferences drawn and deductions made by a trained law enforcement officer; inferences and deductions that might well elude an untrained persоn. A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. The existence of an articulable suspicion can be based on the collective knowledge of law enforcement officials.
(Punctuation and footnotes omitted.) Prado v. State,
As to the initial stop, the detective investigating the armed robberies testified at the- motion to suppress hearing that he compared the similarities between the two armed robberies. The detective went to the check-cashing store on Campbellton Road and DeLowe Drive and to other nearby businesses to ask for their help in apprehending the individual involved in the rash of robberies in the area. The detective informed local businesses that he was looking for a black male between 5'8" and 6'1" and between 210 and 250 pounds, and he was also looking for a dark blue or black two-door Ford Thunderbird. The detective asked business owners to call him or 911 if they saw a vehicle matching that description in the area between the hours of 10:30 p.m. and 2:00 a.m. At about 10:30 one night, the detective received a call from a local security guard that the guard saw a dark-colored Ford Thunderbird parked across the street from the check-cashing store and that two people were sitting inside the vehicle. The detective broadcast a be-on-the-lookout (“BOLO”), and dispatch then sent some units to Campbellton Road and DeLowe Drive. Police officers subsequently stopped the two-door black Thunderbird across the street from the check-cashing store, and McBurrows was detained.
The BOLO broadcast by the detective provided a reasonable basis to stop the vehicle in which McBurrows was a passenger. The BOLO provided particularized information describing the color, manufacturer and model of the vehicle, the number of occupants, and the location of the vehicle. “Particularized alerts issued by police officers for specifically described vehicles possibly involved in criminal activity have long served as a legitimate basis for investigatory stops.” (Citations omitted.) Faulkner v. State,
To the extent McBurrows contends that reasonable suspicion could not be based solely on the detective’s testimony, and that the officers who conducted the stop were required to testify, his argument is without merit.
Reasonable susрicion need not be based on [a responding] officer’s knowledge alone, but may exist based on the “collective knowledge” of the police when there is reliable communication between an officer supplying the information and an officer acting on that information. In this regard, police are authorized to stop an individual based on a “be on the lookout” dispatch or even a radio transmission from another officer who observed facts raising a reasonable suspicion of criminal activity or a traffic violation.
(Citations omitted.) Camp v. State,
(b) McBurrows also contends that his motion to suppress should have been
The United States Supreme Court has adopted a dual inquiry for evaluating the reasonableness of a lengthy investigative stop. First, we consider whether the officer’s action was justified at its inception, and second, whether it was reasonably related in scope to the circumstances which justified the interference in the first place. In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.
(Citations and punctuation omitted.) Randolph, supra,
Here, upon arriving at the location of the stop, the detective observed that McBurrows matched the description of the armed robber at the center of his investigation. The detective informed McBurrows that he was investigating the robberies, and he asked McBurrows for his name and identification. McBurrows stated that he did not have any identification and provided the name of “Keith Smith.” The detective was unable to verify McBurrows’s identity with the name and date of birth provided. McBurrows also provided a residential address. Officers and the detective went to that location, and people there said that no one by the name of Keith Smith lived at the residence. When the detective returned, he placed McBurrows under arrest for providing a false name and false address.
The detective testified that he spent about 15 to 20 minutes attempting to verify McBurrows’s name and address, and that a total of about 30 minutes had elapsed from the time he gave the BOLO report until the time he placed McBurrows under arrest. There is nо evidence that the officers were failing to diligently pursue the investigation to confirm or dispel their suspicions quickly. Moreover, given that McBurrows matched the physical description of the suspect involved in the armed robberies, and the officers spent at least 15 minutes attempting to verify the information given by McBurrows, we cannot say that the stop was unreasonably prolonged. See King v. State,
(c) McBurrows also argues that the trial court should have suppressed the evidence found during an inventory search of the Ford Thunderbird because the impoundment and subsequent search of the vehicle were not reasonably necessary. Specifically, he asserts that since the owner of the vehicle was present when the stop occurred, the owner could have removed the vehicle. McBurrows did not, however, raise this contention in the proceedings below. In his motions to suppress, McBurrows challengеd only the photo lineups and the basis for the stop and arrest. Additionally, McBurrows did not specifically argue in the trial court that the search of the vehicle pursuant to an impoundment was unlawful.
[E]vidence exclusion is an extreme sanction and one not favored in the law. For this reason, OCGA § 17-5-30 (b) requires a motion to suppress to be in writing and to state facts showing that the search and seizure were unlawful. On a motion to suppress, the State is entitled to proper notice of the issue raised or it will be deemed waived. In other wоrds, the suppression motion must be sufficient to put the State on notice as to the type of search or seizure involved, which witness [es] to bring to the hearing on the motion, and the legal issues to be resolved at that hearing.
(Citations and punctuation omitted; emphasis in original.) State v. Gomez,
(a) McBurrows first cites to the detective’s testimony about arranging a photo array to show to one of the victims. As a preliminary matter, McBurrows did not make a contemporaneous objection to the challenged testimony and has, therefore, waived this argument. See Allen v. State,
The detective testified that he presented the first victim with two different photo lineups, one that was shown on March 28, 2003 and a second that was shown on April 8, 2003. The detective further testified that
on the first array of photos that I showed [the first victim] this was a subject that was arrested at the Church’s Chicken right next door to the check cashing store. He was arrested for attempting to rob the business. So because of the proximity of the Church’s Chicken and the check cashing store I put him in an array of photographs to see if he may have been the person that robbed [the victim].
The detective testified that when he presented the first array of photos to the first victim on March 28, 2003, the first victim did not identify anyone in the array of photogrаphs. The detective subsequently compiled a second photo array for the first victim, and she immediately identified McBurrows from this second lineup. Based on this evidence, it is clear that the detective’s testimony about an individual being arrested for robbing the Church’s Chicken did not refer to McBurrows.
(b) McBurrows next argues that the trial court erred in allowing, over his objection, testimony that he was not working.
Although motive is not an essential element in proving the crimes charged, the State is entitled to present evidence to establish that there was a motive, and evidence [of McBurrows’s unemployment] is relevant to prove that he had a motive for committing the crimes and is not rendered inadmissible by the fact that it [might] incidentally put[ ] his character in issue.
(Citations omitted.) Thornton v. State,
3. McBurrows contends that the trial court erred in allowing hearsay evidence. We disagree.
(a) McBurrows argues that the trial court erred in allowing the second victim to testify about the comments of a bystander who observed the assailant leave in a black Thunderbird and offered to take the victim to where the assailants lived. The trial court overruled McBurrows’s hearsay objection on the issue, concluding that the bystander’s comments were part of the res gestae and explained how the second victim got to the apartment complex on Honeysuckle Lane.
Even if the trial court erred in admitting this evidence, the testimony was cumulative of other admissible evidence; therefore, it did not amount to reversible error. See Belmar v. State,
(b) McBurrows also asserts that the photo lineup admonition sheet contained hearsay because it included the signature of an individual who did not testify at his trial. Pretermitting whether the trial court erred, McBurrows has failed to show harm. The admonition sheet in question was the same admonition sheet given to the second victim, and the sheet was given to this other individual on the same date that the second victim positively identified McBurrows from the photo lineup. The admonition sheet does not, however, contain any information showing that this individual positively identified McBurrows as being involved in the armed robbery. Accordingly, McBurrows cannot show harm. See Watson v. State,
4. McBurrows also contends that the trial court erred in allowing certain exhibits to go out with the jury during deliberations in violation of the continuing witness rule. We disagree.
In Georgia, the continuing witness objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is reсeived but once.
(Citation omitted.) Decapite v. State,
(a) McBurrows asserts that the continuing witness rule was violated when the evidence tag attached to the gun recovered from the Ford Thunderbird was allowed to go out with the jury.
The record reveals that McBurrows made no continuing witness objection either at the time the gun was introduced into evidence or when it was included in the exhibits sent to the jury room. Rather, McBurrows only raised a continuing witness objection to the admonition sheets. Consequently, he has not preserved this issue for appeal. See Zellars v. State,
(b) As to McBurrows’s complaint regarding the photo lineup admonition sheets, the sheets included the following, limited information: the witness’s name and signature, the number of the photograph the witness selected from the lineup, the date of the selection, and the signature of the offiсer who conducted the lineup. This Court has previously viewed admonition sheets as tools to help explain the photo lineup display shown to a witness, as opposed to a witness’s statement. See Parks v. State,
We note that the admonition sheet signed by the second victim also contains the additional comment “ID in 5 seconds,” and the sheet signed by the first victim contains the statement “Instant ID.” Regardless of whether the additional statement constituted “written testimony,” however, any error in allowing the exhibits to go out with the jury was harmless. Both victims, who were subject to extensive cross-examination, testified at trial that they positively identified McBurrows as their assailant during the photo lineup,
5. McBurrows next contends that the trial court erred in failing to conduct an in camera inspection of the State’s file and in denying his request to copy and seal the prosecutor’s file for possible appellate review. We do not agree.
Here, during cross-examination of the detective, McBurrows moved for a mistrial on the basis that the State failed to provide him with the detective’s notes regarding his March 28, 2003 interview of the first victim. The detective testified that the subject notes contained the first victim’s description of her assailant. The detective further testified that he had provided his notes to the prosecutor, who then put them in a trial binder. The State argued that it handed the material in question to former defense counsel, and at the State’s suggestion, the trial court stated that it would conduct an in camera inspection of the State’s trial binder for the purposes of determining whether it contained any exculpatory evidence. Following the in camera inspection, the trial court stated that it did not find any exculpatory evidence in the State’s file, nor did it find the subject notes the detective gave to the prosecutor. McBurrows renewed his motion for a mistrial and further requested that the State’s file be copied and filed under seal for purposes of appellate review. The trial court stated that most of the State’s file consisted of notes prepared for trial, and it denied McBurrows’s motions.
The trial court’s denial of McBurrows’s motion to copy and seal the prosecutor’s file for use by the appellate courts forms the basis of his enumeration of error. McBurrows, however, makes no specific claim that any particular exculpatory evidence was in fact suppressed. Rather, he asks that we remand the case for the trial court to conduct another in camera inspection. Since McBurrows does not claim that exculpatory evidence was withheld, he “has no grounds to appeal the trial court’s review of the prosecutor’s file. Any error on the part of the trial court in refusing to make a record of the in camera inspection was harmless.” (Citations and punctuation omitted.) Jenkins v. State,
6. McBurrows next contends that during its opening statement, the State improperly referred to evidence about the nontestifying bystander in violation of the trial court’s ruling not to do so. The record shows that prior to trial, McBurrows filed a motion in limine to preclude references to the hearsay testimony regarding the bystander. Contrary to McBurrows’s suggestion, however, the trial court denied his motion in limine on the ground that the hearsay testimony was part of the res gestae and helped to explain the second victim’s conduct.
7. McBurrows contends that the trial court made several errors in its charge to the jury. The record shows that after the jury charge was given, the trial court asked the defense if it had any exceptions to the jury charge, and McBurrows responded “[n]ot on that.” Since McBurrows failed to object to the jury charge as given, we review his claims only for plain error. See OCGA § 17-8-58 (b); White v. State,
authorizes reversal of a conviction if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings. Satisfying all four prongs of this standard is difficult, as it should be.
(Citations and punctuation omitted.) Lake v. State,
Here, we need not decide whether the challenged charges were erroneous, because even if we assume that the charges given were erroneous and that such errors were obvious, there is no plain error because McBurrows has not shown that the errors affected the outcome of the proceedings. Lake, supra,
Judgment affirmed.
Notes
McBurrows was charged in two separate indictments with offenses against two separate victims, and the indictments were consolidated for trial. McBurrows was also charged with and found guilty of two counts of aggravated assault with intent to rob (OCGA § 16-5-21 (a) (l)),but the trial court merged these сounts into his convictions for armed robbery. The State dead docketed the additional charges of possession of a firearm by a convicted felon (OCGA § 16-11-131 (b)).
Randolph v. State,
McBurrows also claims that the witness stated that McBurrows needed money, but the transcript shows that the witness made no such statement.
The first victim also testified that when she was shown the photo lineup, she immediately identified McBurrows as the person who robbed her, which was consistent with the comment on her admonition sheet that it was an “Instant ID.”
As indicated in Division 3 (a) above, the trial court also denied McBurrows’s objection to the hearsay testimony when it was given.