FOURTH DIVISION DOYLE, P. J., MILLER and DILLARD, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
July 8, 2014
In the Court of Appeals of Georgia A14A0268. SPENCER v. THE STATE. DO-009
DOYLE , Presiding Judge.
After a jury trial, Anthony Spencer was convicted of two counts of armed
robbery1 and aggravated assault.2 Following the denial of his motion for new trial,
Spencer appeals, arguing that the trial court erred by (1) finding that his statements
to police were voluntary; (2) refusing to grant his request to instruct the jury as to the
lesser included offense of robbery by intimidation; and (3) allowing the State to treat
his co-conspirator as a hostile witness. For the reasons that follow, we affirm.
On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or
1 OCGA § 16-8-41 (a). 2 OCGA § 16-5-21 (a) (2). determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia.3 This same standard applies to our review of the trial court’s denial of [the defendant’s] motion for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.4
So viewed, the evidence shows that late in the evening on April 5, 2010,
Spencer and two co-conspirators, Maggie Denham and Devin James, decided to rob
a local Asian restaurant, and Denham called requesting delivery of over $50 of food,
including egg rolls. The delivery was to be made to an apartment, and two employees
of the restaurant drove to the complex to deliver the food. The apartment was located
on the terrace level of the building, requiring the employees to walk down a flight of
stairs to reach the unit. Denham opened the door, and she asked the employees to wait
for her boyfriend, who was coming to the apartment with money.
After waiting for some time, the employees became suspicious and returned
back up the stairs, where they were met by Spencer, Denham, and James, who
brandished a handgun, which he pointed at the employees, and demanded the food,
3 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). 4 (Footnotes omitted.) Stephens v. State, 247 Ga. App. 719 (545 SE2d 325) (2001).
2 their wallets, and their cell phones. While Denham removed one of the employee’s
wallets from his pants, James hit him on the head with the handgun, causing the
employee to fall, at which point the three beat and kicked him. Spencer called out that
someone was coming, and the three fled to a nearby apartment where a friend lived,
who awoke her stepfather. They convinced the friend’s stepfather to give them a ride
out of the complex because they had been attacked by someone.
Prior to their escape, the employees called 911, and an officer who happened
to be in the vicinity of the complex interviewed the employees about the incident and
arranged to secure the only exit from the complex. The vehicle carrying Spencer,
Denham, and James was stopped at the exit when the officer stationed there
recognized Denham from the description provided by the employees and noticed the
order of Asian food in the vehicle.
The officers allowed the driver to leave and placed the three suspects in
separate patrol cars. The employees identified Spencer and the two others as
participants in the crime, and officers discovered a handgun and one of the
employee’s cellphones in the vehicle. The officers arrested James and Spencer after
reading Miranda5 warnings to the men, and James admitted that the three planned and
5 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
3 participated in the robbery.6 Officers also discovered in Spencer’s pants pocket an egg
roll. Spencer also admitted that he knew the robbery was going to occur, and he saw
Denham give James the weapon prior to the incident. Spencer stated that he was
behind James during the robbery, and he grabbed the food when James dropped it as
they fled from the scene.
Prior to Spencer’s trial, James and Denham pleaded guilty. In his plea colloquy,
James stated that Spencer did not attack anyone and was just “around.” As part of her
plea, Denham agreed to testify against Spencer if he proceeded to trial. None of the
three co-conspirators had ever been arrested prior to the incident.
After trial, the jury returned guilty verdicts as to the two armed robbery counts,
but the jury acquitted Spencer of aggravated assault of the employee James hit on the
head. The court sentenced Spencer to twenty years with ten to serve.
1. Spencer argues that the trial court erred by finding that his custodial
statement was voluntary. Specifically, Spencer contends that he was 18 years old, had
a tenth grade education, no prior experience with law enforcement, was not allowed
to speak with his parents prior to the interview, was interviewed in the middle of the
6 Denham did not provide police with an interview at the scene.
4 night, and had smoked marijuana prior to the incident, rendering clearly erroneous the
trial court’s determination that his custodial statement was admissible. We disagree.
In deciding the admissibility of a statement during a Jackson-Denno7 hearing, the trial court must consider the totality of the circumstances and must determine the admissibility of the statement under the preponderance of the evidence standard. Unless the factual and credibility findings of the trial court are clearly erroneous, the trial court’s decision on admissibility will be upheld on appeal.8
The record shows that officers interviewed Spencer after arresting him at the
crime scene; the interview occurred at the police station at approximately 2:20 a.m.
on the morning of April 6 after the incident earlier that night. Prior to conducting the
interview, the officer read Spencer his Miranda rights and provided him a written
waiver of rights form; the officer asked Spencer whether he had ingested any drugs
or alcohol, and he responded that he had smoked marijuana at approximately 7:00
p.m. earlier that evening (about 7 hours prior to the interview). Spencer stated that he
was no longer under the influence at the time of the interview: “I’m fine; we can
continue.” The interview lasted about 20 minutes, and the officer, who was
7 Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964). 8 (Punctuation omitted.) Norton v. State, 293 Ga. 332, 334 (2) (745 SE2d 630) (2013), quoting Jones v. State, 285 Ga. 328, 329 (2) (676 SE2d 225) (2009).
5 experienced with individuals under the influence, testified that Spencer did not appear
impaired.
Spencer contends that his impairment from ingesting marijuana establishes that
he was not capable of knowingly and voluntarily waiving his right to silence. He
contends that, for instance, the law’s treatment of marijuana intoxication as evidence
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FOURTH DIVISION DOYLE, P. J., MILLER and DILLARD, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
July 8, 2014
In the Court of Appeals of Georgia A14A0268. SPENCER v. THE STATE. DO-009
DOYLE , Presiding Judge.
After a jury trial, Anthony Spencer was convicted of two counts of armed
robbery1 and aggravated assault.2 Following the denial of his motion for new trial,
Spencer appeals, arguing that the trial court erred by (1) finding that his statements
to police were voluntary; (2) refusing to grant his request to instruct the jury as to the
lesser included offense of robbery by intimidation; and (3) allowing the State to treat
his co-conspirator as a hostile witness. For the reasons that follow, we affirm.
On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or
1 OCGA § 16-8-41 (a). 2 OCGA § 16-5-21 (a) (2). determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia.3 This same standard applies to our review of the trial court’s denial of [the defendant’s] motion for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.4
So viewed, the evidence shows that late in the evening on April 5, 2010,
Spencer and two co-conspirators, Maggie Denham and Devin James, decided to rob
a local Asian restaurant, and Denham called requesting delivery of over $50 of food,
including egg rolls. The delivery was to be made to an apartment, and two employees
of the restaurant drove to the complex to deliver the food. The apartment was located
on the terrace level of the building, requiring the employees to walk down a flight of
stairs to reach the unit. Denham opened the door, and she asked the employees to wait
for her boyfriend, who was coming to the apartment with money.
After waiting for some time, the employees became suspicious and returned
back up the stairs, where they were met by Spencer, Denham, and James, who
brandished a handgun, which he pointed at the employees, and demanded the food,
3 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). 4 (Footnotes omitted.) Stephens v. State, 247 Ga. App. 719 (545 SE2d 325) (2001).
2 their wallets, and their cell phones. While Denham removed one of the employee’s
wallets from his pants, James hit him on the head with the handgun, causing the
employee to fall, at which point the three beat and kicked him. Spencer called out that
someone was coming, and the three fled to a nearby apartment where a friend lived,
who awoke her stepfather. They convinced the friend’s stepfather to give them a ride
out of the complex because they had been attacked by someone.
Prior to their escape, the employees called 911, and an officer who happened
to be in the vicinity of the complex interviewed the employees about the incident and
arranged to secure the only exit from the complex. The vehicle carrying Spencer,
Denham, and James was stopped at the exit when the officer stationed there
recognized Denham from the description provided by the employees and noticed the
order of Asian food in the vehicle.
The officers allowed the driver to leave and placed the three suspects in
separate patrol cars. The employees identified Spencer and the two others as
participants in the crime, and officers discovered a handgun and one of the
employee’s cellphones in the vehicle. The officers arrested James and Spencer after
reading Miranda5 warnings to the men, and James admitted that the three planned and
5 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
3 participated in the robbery.6 Officers also discovered in Spencer’s pants pocket an egg
roll. Spencer also admitted that he knew the robbery was going to occur, and he saw
Denham give James the weapon prior to the incident. Spencer stated that he was
behind James during the robbery, and he grabbed the food when James dropped it as
they fled from the scene.
Prior to Spencer’s trial, James and Denham pleaded guilty. In his plea colloquy,
James stated that Spencer did not attack anyone and was just “around.” As part of her
plea, Denham agreed to testify against Spencer if he proceeded to trial. None of the
three co-conspirators had ever been arrested prior to the incident.
After trial, the jury returned guilty verdicts as to the two armed robbery counts,
but the jury acquitted Spencer of aggravated assault of the employee James hit on the
head. The court sentenced Spencer to twenty years with ten to serve.
1. Spencer argues that the trial court erred by finding that his custodial
statement was voluntary. Specifically, Spencer contends that he was 18 years old, had
a tenth grade education, no prior experience with law enforcement, was not allowed
to speak with his parents prior to the interview, was interviewed in the middle of the
6 Denham did not provide police with an interview at the scene.
4 night, and had smoked marijuana prior to the incident, rendering clearly erroneous the
trial court’s determination that his custodial statement was admissible. We disagree.
In deciding the admissibility of a statement during a Jackson-Denno7 hearing, the trial court must consider the totality of the circumstances and must determine the admissibility of the statement under the preponderance of the evidence standard. Unless the factual and credibility findings of the trial court are clearly erroneous, the trial court’s decision on admissibility will be upheld on appeal.8
The record shows that officers interviewed Spencer after arresting him at the
crime scene; the interview occurred at the police station at approximately 2:20 a.m.
on the morning of April 6 after the incident earlier that night. Prior to conducting the
interview, the officer read Spencer his Miranda rights and provided him a written
waiver of rights form; the officer asked Spencer whether he had ingested any drugs
or alcohol, and he responded that he had smoked marijuana at approximately 7:00
p.m. earlier that evening (about 7 hours prior to the interview). Spencer stated that he
was no longer under the influence at the time of the interview: “I’m fine; we can
continue.” The interview lasted about 20 minutes, and the officer, who was
7 Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964). 8 (Punctuation omitted.) Norton v. State, 293 Ga. 332, 334 (2) (745 SE2d 630) (2013), quoting Jones v. State, 285 Ga. 328, 329 (2) (676 SE2d 225) (2009).
5 experienced with individuals under the influence, testified that Spencer did not appear
impaired.
Spencer contends that his impairment from ingesting marijuana establishes that
he was not capable of knowingly and voluntarily waiving his right to silence. He
contends that, for instance, the law’s treatment of marijuana intoxication as evidence
of per se impairment of ability to drive shows that it was clear error on the part of the
trial court to determine that Spencer was capable of consenting to the interview while
his faculties were similarly affected. “The mere fact that [Spencer] may have been
somewhat intoxicated at the time of the interview does not automatically render
evidence thereof inadmissible.” 9 Although another trial court weighing the
circumstances surrounding Spencer’s custodial statements may have found that he did
not knowingly and voluntarily consent, here, “[t]he trial court was faced with
conflicting evidence[] and determined that [Spencer] made his statement knowingly
and voluntarily; there was evidence to support this determination; and there is no
reversible error in the court’s denial of the motion to suppress.”10
9 Norton, 293 Ga. at 335 (2). 10 Id. See also Ellis v. State, 274 Ga. 852, 853 (2) (561 SE2d 117) (2002) (“Even considering that [the defendant] had achieved only a sixth-grade education, and his ability to read [was] limited, the trial court’s ruling [that he voluntarily and
6 2. Spencer also argues that the trial court erred by refusing his request to charge
the jury on the lesser included charge of robbery by intimidation. We disagree.
Pretermitting whether Spencer was required to file a written request to charge,
Spencer argued throughout the trial that he was merely present for the robbery and
did not participate. Thus, the trial court correctly denied the request because “when,
as in this case, there is no evidence that the robbery was committed without the use
of a gun, the defendant is not entitled to a jury charge on the lesser included offense
of robbery by intimidation.”11 Spencer contends, however, that because the jury
acquitted him of the aggravated assault charge that was based on use of a weapon, his
request was supported by the evidence. But this presupposes that the jury acquitted
him because it believed a weapon was not involved, rather than because it believed
that the aggravated assault as charged did not occur or did not constitute an
aggravated assault.12
knowingly waived his right to silence] was not clearly erroneous.”). 11 (Punctuation omitted.) Hester v. State, 304 Ga. App. 441, 444 (4) (696 SE2d 427) (2010), quoting Hillman v. State, 296 Ga. App. 310, 316 (6) (674 SE2d 370) (2009). 12 The indictment charged Spencer with assaulting the victim with a deadly weapon, the gun, to injure the victim by hitting him on the head.
7 3. Finally, Spencer argues that the trial court erred by allowing the State to treat
Denham as a hostile witness. We disagree.
During her plea, Denham agreed to testify on behalf of the State at Spencer’s
trial. Prior to her testimony, the State called Denham before the trial court to
determine whether she would testify pursuant to the plea agreement, to which she
responded affirmatively. Nevertheless, upon being questioned before the jury,
Denham attempted to invoke the Fifth Amendment right to remain silent, and the
State reminded Denham that she had waived her right, but instead of responding, she
stated she did not remember where she was on the night in question. At that point, the
State requested that it be allowed to treat Denham as a hostile witness. Spencer did
not object to the request.
“A trial court has discretion to permit leading questions on direct examination
when a witness is reluctant, hostile, or overly nervous.” 13 “It would be a rare case in
which the trial court’s exercise of discretion on this issue would warrant reversal.”14
13 Culler v. State, 277 Ga. 717, 721 (5) (594 SE2d 631) (2004), citing Hayes v. State, 268 Ga. 809, 812-813 (6) (493 SE2d 169) (1997). See also former OCGA § 24-9-63 (2012), which is now codified in OCGA § 24-6-611 (c), enacted by Ga. L. 2011, p. 99, § 2/HB 24. 14 Fugate v. State, 263 Ga. 260, 265 (10) (431 SE2d 104) (1993).
8 Although Spencer cites Hill v. State,15 in support of his contention that the State
should have been required to refresh Denham’s recollection prior to treating her as
a hostile witness,16 that case was addressing impeachment of a witness with prior
statements, and it is not directly on point. Moreover, Denham did not simply state that
she could not remember, she first sought protection from testifying from the Fifth
Amendment, which she was prevented from invoking under her plea agreement.
Accordingly, we discern no abuse of discretion on the part of the trial court.
Judgment affirmed. Miller and Dillard, JJ., concur.
15 250 Ga. App. 897 (553 SE2d 289) (2001). 16 See id. at 902 (1).