Nоrberto Mojica was indicted on the charges of kidnapping with bodily injury, robbery by force, aggravated assault, and two counts of aggravated battery for the workplace assault of Dana Raissian. After three mistrials, the trial court granted Mojica’s third motion to reconsider the denial of his motion to suppress identification on constitutional grounds and suppressed the identification. Pursuant to OCGA § 5-7-1 (a) (4), the state appeals. Finding no error, we affirm.
When reviewing the denial of a motion to suppress, three rules apply:
First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting еvidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. Because there was testimonial evidence in this case, we dо not apply a de novo standard of review.1
The evidence adduced at the motions hearings and the three trials
When she regained consciousness, Raissian was back in her own office. She had been badly beaten: her left scapula was broken, her jaw was broken in two places, teeth were missing, her ear was ripped, and she had a subarachnoid hemorrhage in her brain.
Office building Security Officers Phillip Walker, Brent Reid and Antonio Berrian were the first to reach the victim and began to question her about the attack. Raissian described her attacker as a tall, Hispanic male with a moustache and broad shoulders, wearing an apron. She indicated that it was the same person who cleaned her floors earliеr that evening.
Atlanta Police Department Officer Drew Behry then arrived on the scene. The building cleaning crew supervisor, Gloria Pascoe, was present when Officer Behry questioned Raissian. Pascoe did not hear аll of Raissian’s description, but after hearing that the attacker was cleaning near Raissian’s office, she went downstairs to retrieve Mojica’s worker identification badge and gave it to Officer Behry. Raissian was plaсed on a gurney by EMT personnel, and, as she was waiting by the elevators to leave, Officer Behry showed the identification badge to Raissian and asked her if she recognized the person as her attacker. Raissian said it was and that she recognized him as the man who cleaned her floor earlier.
Pascoe ordered all Hispanic male cleaners to remain at work for questioning that evening, but Mojica left with his girlfriend, who testified at trial thаt he made her leave with him and their young child and go to Chicago that evening to avoid arrest.
There have been three jury trials in this case, each resulting in a mistrial. Before the first jury trial, the first trial judge, in the Fulton County Superior Court, deniеd a motion
1. In its second enumeration of error, the state argues that the trial court erred in finding that Raissian’s identification of Mojica by only looking at his worker identification badge was impermissibly suggestive and in granting Mojica’s third motion for reconsideration. We disagree.
Assuming that Raissian’s identification of Mojica’s worker identification badge was impermissibly suggestive,
Because Raissian’s testimony that she had the opportunity to see her attacker in the lighted hallway priоr to her attack conflicts with testimony from responding officers who interviewed her directly after the attack when she said that she had been grabbed from behind; because Raissian did not have the opportunity to see her attacker during the assault since they were in a darkened office and her attention was focused on her own survival; because the ER physician who treated Raissian testified that the injury to her brain could have causеd memory loss; and because several cleaners working at the building that evening fit Raissian’s description of a tall, broad-shouldered Hispanic male, we cannot conclude that the trial court erred in ruling that there was а substantial likelihood of misidenti-fication. Accordingly, we conclude that the trial court did not err in granting the motion to suppress.
2. In its first enumeration of error, the state argues that the trial court erred in considering Mojica’s third motion for reconsideration because it was untimely filed and out of term.
(a) The state does not contest that Mojica’s original motion to suppress was timely filed, arguing instead that the trial court erred in considering Mojica’s second and third motions for reconsideration because they were filed outside the time period proscribed by OCGA § 17-7-110. OCGA § 17-7-110 requires that “[a]ll pretrial motions, including demurrers and special pleas, shall be filed within ten days after the date of
Whether Mojica was to be afforded an opportunity to file for reconsideration of the original motion to suppress outside the time proscribed by OCGA § 17-7-110 was at the discretion of the trial court.
(b) The state next contends that the trial court did not have the authority to revoke the denial of the motion to suрpress after the court term had expired. Generally, in criminal cases, “a trial court’s inherent power to revoke interlocutory rulings... ceases with the end of the term.”
Where a case remains pending in the trial court across terms, although there are certainly interests in not reliti-gating the same issues between the same parties or undermining vested interests in initial rulings, those interests are weakened where the trial court realizes, on motion for reconsideration, . . . that it has made an error.14
In the present case, the evidentiary posture changed during the three trials which preceded the grant of the motion for reconsideration. When the motion to suppress was initially heard on November 26, 2008, the only witnesses who testified were Raissian, Officer Behry, and Gloria Pascoe. In its orders granting the motion to reconsider, the trial court noted that it was convinced by additional evidence presented during the course of the three jury trials that its denial of Mojica’s motion to suppress was in error. This evidencе includes testimony from an expert witness during the third trial that Raissian’s injuries could have caused memory and vision loss, conflicting statements made by Raissian regarding the circumstances of her attack, and testimony from Investigator Burton during thе third trial that she did not use a later photo lineup because she was concerned the victim might not pick the right suspect.
Because the evidentiary posture has changed, we find that the trial court did not err in considering Mojica’s second and third motions for reconsideration out of term.
Judgment affirmed.
Notes
(Footnote and emphasis omitted.) Ware v. State,
In reviewing a trial court’s decision on a motion to suppress, we consider all rеlevant evidence of record, including evidence introduced at the motions hearings and at trial. See Pittman v. State,
This Court has held that showing suspects singly to a witness for identification purposes, as was done in this case, is inherently suggestivе. See Anderson v. State,
(Footnote omitted.) Jones v. State,
(Citation and punctuation omitted.) Leeks v. State,
(Punctuation and footnote omitted.) Jones, supra at 216 (2).
Compare Jackson v. State,
Uniform Superior CourtRule31. lis in conflict with OCGA § 17-7-110 regarding whether the trial court must issue a written extension of time to file. Rule 31.1 provides the time to file motions may not be extended unless a written extension of time is given by the trial court before trial, while OCGA § 17-7-110 does not have a writing requirement. Nevеrtheless, because Uniform Superior Court Rule 1 states that the Superior Court Rules “shall yield to substantive law” in case of conflict, we will treat OCGA § 17-7-110 as controlling authority.
Davis v. State,
(Citation omitted.) Id. at 317 (3).
(Citation omitted.) Ritter v. State,
(Citations omitted.) Moon v. State,
See Moon, supra at 309 (2) (Nahmias, J., concurring); Tucker v. State,
Moon, supra at 306 (Nahmias, J., concurring).