Errol Windhom v. State

• Court: Court of Appeals of Georgia
• Decided: May 11, 2012
• Docket: A12A0309
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

May 11, 2012

In the Court of Appeals of Georgia A12A0309 WINDHOM v. THE STATE.

ADAMS, Judge.

Errol Windhom appeals his conviction of armed robbery. He challenges the

sufficiency of the evidence; he also contends the trial court erred by not declaring a

mistrial following an officer’s testimony, by failing to give seven of his requested jury

charges, and by sentencing him in violation of the Georgia and United States

Constitutions. We reverse and remand for new trial.

Construed in favor of the verdict, the evidence, including the testimony of co-

defendant Christopher Graddick, shows that on May 18, 2009, Graddick, Michael

Shane Bedford, and Alex Williams went to the A&Z Flower and Game Shop. While

there, Bedford talked about robbing the store, they all stayed about 30 minutes, but

they decided to leave without taking any action. Graddick testified that the next day, Windhom, whom Graddick had known for

about a year, called him and asked him to come over to his house. Graddick testified,

“[Windhom] said he was going to go play the machines, so we went to play the

machines.” So, Windhom, driving his red Volvo, took Graddick, picked up Bedford,

and dropped them off at one end of the shopping center where the A&Z shop was

located. Graddick testified that during the ride, Windhom had given Bedford his .38

caliber handgun. Windhom then drove to the other end of the shopping center and

parked directly in front of the A&Z shop. Graddick testified that Windhom called him

and Bedford at one point. Once inside, Windhom played some video games and had

a conversation with Melissa Ann Amin, the florist and only shopkeeper present at the

time. Amin testified that Windhom was a regular customer, that he even parked in the

same place most days, and that he “came in, as usual, like he does mostly every day.”

She had never seen him with the robbers before. Windhom was in the shop for 30 to

45 minutes before the robbery. At one point, he received a call on his cell phone; he

told Amin that it was from his daughter.

At some point, Graddick and Bedford approached the shop and waited for

Windhom to come out. According to Graddick, when Windhom failed to come out,

they entered the shop with Bedford holding the gun. As they did, Windhom

2 exclaimed, “Oh no,” and Amin looked and saw two men enter. The robber with a gun

was dressed in a black cap, black pants, and a long-sleeved black shirt, and he “had

a black thing over his mouth and nose.” Because she was paying attention to the

gunman, she did not recall what the other robber was wearing. Nevertheless, Amin

recognized both robbers as the two men who had been there the day before; she

apparently saw a tattoo under one eye on the gunman that she had seen the day

before. That person pointed the gun at her face, threatened her life, and demanded that

she hand over everything. She gave him her cell phone, cigarettes, and money. They

also had her open the register, but she had not put any cash in it at that time.

Windhom was standing right in front of Amin when the robbers came in, but they did

not rob him. The robbers made Windhom lie on the ground, and they forced Amin

into the bathroom and told her to stay there for ten to fifteen minutes. Amin heard

noises for several minutes afterwards but came out after five or ten minutes after it

got quiet; she then sought help. The robbers and Windhom were gone when she came

out, and Windhom’s car was gone, as well.

Other evidence showed that while Amin was in the bathroom, Graddick and

Bedford exited the shop followed sometime later by Windhom. A video recording

showed Graddick and Bedford leaving the shop after the robbery and then showed

3 Windhom getting into his car and driving off. Graddick and Bedford walked down

the road while Windhom got in his car, drove to their location, and, according to

Graddick, picked them up. Graddick testified that he rode in the front passenger seat

while Bedford counted money in the back and that Windhom asked Bedford how

much money they got. Windhom dropped off Bedford at his home, and he and

Graddick went to Windhom’s house. Graddick specifically testified that Windhom

was a part of the robbery and that he, Graddick, was not. He testified that Windhom

“was the one that set it up”; but he also testified that he did not hear Windhom talk

about a robbery before it happened. Graddick testified that he did not get any of the

money. He testified equivocally that he thought that Bedford and Windhom took the

money.

A witness who was driving near the shopping center at the time of the robbery

saw a red Volvo come out of the parking lot and stop to pick up a male, who got in

the back seat.

Windhom testified and admitted that he drove Graddick and Bedford to the

shopping center, that he went into the A&Z shop, that the shop was robbed while he

was there, that one of the robbers had a gun, that he drove off in his car and saw

Graddick and Bedford walking, and that he talked to them but did not pick them up.

4 He denied knowing about or participating in the robbery; he testified that he drove

the others to the shopping center because they told him they needed to pick up

Graddick’s aunt’s car, which was parked there. He also testified that he did not

recognize the robbers because they had changed their clothes and were wearing

masks and that when he spoke to them after the robbery, he demanded to know what

they were doing. But he admitted that he never called the police to report a robbery.

He told an investigating officer that the gun belonged to Graddick.

1. We review the case “under the standard espoused in Jackson v. Virginia, 443

U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to determine if the evidence, when

viewed in the light most favorable to the prosecution, supports the verdict.” (Citation

omitted.) Mack v. State, 272 Ga. 415, 416-417 (1) (529 SE2d 132) (2000). Armed

robbery requires proof of intent to commit theft and taking property from another

using an offensive weapon:

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 § 16-8-41. Here, evidence was presented showing that Windhom planned the

robbery, drove the robbers to the scene, supplied the weapon, functioned as a lookout,

5 drove the getaway vehicle, and inquired about the proceeds of the crime. The

evidence was sufficient to show that he was a party to an armed robbery.

2. Windhom contends the trial court erred by not declaring a mistrial based on

the testimony of an investigating officer. On direct examination for the State, Officer

Russell testified about the contents of a statement that Windhom made to the officers

investigating the crime. As a part of his testimony, Russell testified about statements

he made to Windhom at that time. One such statement was that based on the way that

Windhom and the robbers acted during the robbery, the victim (and possibly the

officers themselves) believed that the robbers and Windhom had acted in concert. The

full statement was

We told him the white female employee, Melissa Ann Amin, told us that the robbers, Christopher and Shane Bedford, laid him on the floor very gently or very easy as if they did not want to hurt him. We told him that made him (sic) believe that the three of them were together. Melissa Ann Amin believed the same thing.

Windhom objected on the ground that the statement was hearsay, which the

court sustained. Windhom also moved for a mistrial and asked the court to instruct

the jury that they should disregard the statement on the ground that it was improper

testimony regarding whether to believe the defendant’s story and an improper

6 invasion of the province of the jury. The court denied the motion for mistrial and

denied the request for a limiting instruction. The court reasoned that the comment

showed the context of the conversation and that it was not an opinion as to the

believability of the defendant’s testimony.

On appeal our review is limited to the specific grounds raised in the objections

at trial; other possible grounds for excluding the testimony have been waived. Mullins

v. State, 280 Ga. App. 689, 692 (3) (634 SE2d 850) (2006). We review denial of a

mistrial for admission of improper evidence “for abuse of discretion by examining

factors and circumstances, including ‘the nature of the statement, the other evidence

in the case, and the action taken by the court and counsel concerning the impropriety.’

[Cit.]” White v. State, 268 Ga. 28, 32 (4) (486 SE2d 338) (1997).

It is true that “a witness, even an expert, can never bolster the credibility of

another witness as to whether the witness is telling the truth.” (Citations and

punctuation omitted.) Mann v. State, 252 Ga. App. 70, 72 (1) (555 SE2d 527) (2001).

And, “Georgia law generally precludes a witness from testifying as to his or her

opinion regarding an ultimate issue in the case because to do so would invade the

province of the jury.” Glover v. State, 292 Ga. App. 22, 27 (4) (663 SE2d 772)

(2008).

7 “The Supreme Court of Georgia, however, has viewed police comments during

interrogations differently from sworn trial testimony.” Axelburg v. State, 294 Ga.

App. 612, 616 (2) (669 SE2d 439) (2008) (error to admit several comments by officer

during interrogation that he did not believe defendant’s story that he accosted the

victim while sleepwalking).

In Hames v. State, [cit.] the Court distinguished interrogation comments from sworn testimony and stated that comments made in that case “appear[ed] to reflect only an aggressive interrogation technique designed to test the truthfulness of (the defendant’s) denial of (the requisite intent).” [Cit.] Similarly, in Rowe v. State, [Cit.] the court held that “(w)hat (the defendant) characterizes as inadmissible statements by (the interrogator) regarding his theory of the case was nothing more than police questioning aimed at eliciting responses from a defendant in custody.” [Cit.] Other decisions of the Supreme Court of Georgia also emphasize the latitude given police interrogators in interviews that ultimately are admitted into evidence. [Cit.] Likewise, courts in other jurisdictions have acknowledged the need for such interrogation techniques and under certain circumstances have allowed into evidence unredacted interview statements containing such techniques. [Cits.]

Id. at 616-617 (2).

This exception, however, has limits. In Axelburg, the officer essentially

asserted that he was an expert in sleepwalking and forensic interviewing, that he

8 could tell when someone was lying, and that he thought the defendant was lying

about his sleepwalking story. Id. at 618 (2). This Court held that the officer’s

comments exceeded those limits:

Because the officer’s opinion on this disputed question directly addressed Axelburg’s defense, that he lacked the requisite intent to commit the offense, we do not find that allowing the jury to hear this opinion was harmless or that the limiting instruction mitigated this harm.

Id.

Here, the relevant testimony is hearsay from the victim that based on the way

that Windhom and the robbers acted during the robbery, the victim and, implicitly,

the officers, believed that the robbers and Windhom had acted in concert. The

ultimate issue in this case is that very question. See, e.g., Fordham v. State, 254 Ga.

59, 60 (4) (325 SE2d 755) (1985) (where issue was whether defendant killed with

malice or with justification, it was improper for officer to testify that there was

nothing in the defendant’s statements that would justify the killing). Furthermore,

unlike the interrogation comments cases, here, the testimony came in as sworn

testimony, not just recorded interrogation comments; the officer was testifying live

about Windhom’s statement when he added his own unsolicited recollection of the

interrogation questions he asked Windhom, which included the victim’s hearsay

9 statement. We cannot even be sure whether the officer’s testimony accurately

reflected his actual “aggressive interrogation technique.” See Towry v. State, 304 Ga.

App. 139, 146 (695 SE2d 683) (2010 (distinguishing sworn testimony of a trial

witness from comments on a video recording of the interrogation).

Also, the victim did not testify to the same information that the officer reported.

She did not testify that Windhom’s or the robbers’ behavior during the robbery made

her believe that Windhom was an accomplice. In fact, she specifically denied that he

did anything during the robbery to give her the impression that he was trying to help

the robbers, although she did testify that the fact that he left afterwards gave her an

indication that he might be involved. Even so, the officer’s testimony was not

duplicative of Amin’s and therefore not duplicative of other admissible testimony.

In sum, we conclude that the evidence should not have been admitted. Without

a limiting instruction, the harm was not mitigated, and given that the only direct

evidence of Windhom participating in the crime was the testimony of a co-defendant

who had been declared incompetent to stand for his own trial , we cannot say the error

was harmless. Therefore Windhom was entitled to a mistrial. Because some of the

remaining asserted errors could occur upon retrial, depending on the evidence

produced at the second trial, we will address them.

10 3. Windhom contends the trial court erred by failing to give seven of his

proposed jury charges.

[A] trial court does not err in refusing to give a requested instruction in the exact language requested where the charges given in their totality substantially and adequately cover the principles contained in the requested charge.

Massey v. State, 270 Ga. 76, 78 (4) (508 SE2d 149) (1998). See also Harrison v.

State, 309 Ga. App. 454, 457 (2) (a) (711 SE2d 35) (2011).

(a) Windhom contends the court should have given his requested charge on

identification because the passerby testified that a black man in a red Volvo picked

up a person on the road shortly after the robbery but she was not able to identify

Windhom as that man. He contends this creates an issue of fact as to whether he was

the person in the red Volvo who picked up the robbers. But Windhom placed himself

at the scene of the robbery, admitted that he drove a red Volvo, and even placed

himself in his car after the robbery, leaving the scene and stopping to talk to one of

the co-defendants, although he denied picking him up. Furthermore, the passerby did

not identify Windhom as the man in the red Volvo. The jury was at liberty to consider

the possibility that a second red Volvo came along after Windhom and picked up the

11 co-defendant. As the facts were presented at the first trial, this issue did not depend

on witness identification, and therefore we find no error.

(b) Windhom contends the court should have given his requested charge on the

motive of a witness to testify because the jury needed the instruction to be able to

evaluate the testimony of co-defendant Graddick, who had been found incompetent

to stand trial and who may have been motivated to alter his testimony to favor the

State’s case. But the court instructed on credibility of witnesses, the interest of a

witness, impeachment, and motive of a witness. Our review of these charges show

that they substantially and adequately cover the principles contained in the requested

charge.

(c) Windhom contends the court should have given his requested charge on

aiding and abetting in order to show that he should not be found guilty just because

he knew the two robbers or was merely present at the scene. But the trial court

instructed the jury on mere presence, parties to a crime, knowledge of a crime, guilt

by mere association, and grave suspicion. Our review of these charges show that they

substantially and adequately cover the principles contained in the requested charge.

(d) Windhom contends the court should have given his requested charge that

mere approval of an act, not amounting to encouragement, is not it itself, standing

12 alone, sufficient to justify a conviction. See generally Brown v. State, 250 Ga. 862 (1)

(302 SE2d 347) (1983). But, at the first trial, there was no evidence that Windhom

merely approved the act. He either provided the gun, operated as a lookout, and drove

the getaway vehicle, as Graddick testified, or he had no idea that Graddick and

Bedford were going to rob anyone, as he testified. It was up to the jury to resolve this

factual issue. Where there is no evidence supporting a requested charge, it is not error

to deny the request. Monsalve v. State, 271 Ga. 523, 526 (3) (519 SE2d 915) (1999).

(e) Windhom contends the court should have given his requested charge on

mistake of fact, that is that the State has the burden of showing that the defendant did

not act as a result of a mistake of fact. See OCGA § 16-3-5. He testified that he took

the robbers to the shopping center under the mistaken belief that they simply needed

a ride to pick up a car that was parked there, not to commit a robbery. In order to

justify the charge, Windhom would need to be able to show some evidence that “the

act or omission to act constituting the crime was induced by a misapprehension of

fact.” Id.

Here, Windhom’s conviction was based on direct and circumstantial evidence.

It was based on the direct evidence in the form of Graddick’s testimony that

Windhom planned the crime, provided the gun, and functioned as the driver and

13 lookout, all while knowing of the plan to rob, i.e., intent to commit theft. But the

remaining evidence, most of which Windhom admitted, provided only circumstantial

evidence of intent to commit theft: that he drove the robbers to the scene of the crime;

that he went to the shop and received a phone call; that he was present during the

robbery; that he was not robbed; and that he drove the robbers away from the scene

of the crime. Without Graddick’s testimony, however, there would be no evidence

that Windhom knew in advance of the plan to rob the store. And Windhom testified

that the reason he drove the other two perpetrators to the shopping center was that

they told him they simply needed a ride there to pick up a car; he also testified that

he was surprised by the robbery and that he only spoke to the robbers afterward to ask

them what they had done and why.

A mistake of fact “is a defense to a crime to the extent that the ignorance of

some fact negates the existence of the mental state required to establish a material

element of the crime.” Jones v. State, 263 Ga. 835, 839 (2) (439 SE2d 645) (1994).

As shown, Windhom’s knowledge of a plan or intent to rob is a material element of

the charge against him. If he lacked that knowledge and did not provide the gun; went

to the store just to play games (which the victim acknowledged was his habit, and

even Graddick seemed to corroborate at one point); and did not recognize the robbers

14 because they were masked (which the victim confirmed as to the gunman), then he

would not be guilty of armed robbery. Under that scenario, Windhom would have

been duped into driving and then caught in the store that Graddick and Bedford chose

to rob even though they knew Windhom was inside.

Therefore, based on the evidence at the first trial, the trial court should have

given Windhom’s requested charge on mistake of fact. Although our review shows

that the remainder of the jury charge fairly presented the issue to the jury such that,

standing alone, it might not amount to reversible error, Price v. State, 289 Ga. 459,

460 (2) (712 SE2d 828) (2011), the better practice would be to give the charge.

(f) Windhom contends the court should have given his requested charge on

hindering the apprehension of a criminal as a lesser included offense. See OCGA §

16-10-50. “[T]he offense of hindering the apprehension of a criminal, see OCGA §

16-10-50, is the equivalent of the common law crime of being an accessory after the

fact.” Hampton v. State, 289 Ga. 621, 622 (713 SE2d 851) (2011). And, it is not a

lesser included offense of the principal crime but a separate offense. See id.; Vergara

v. State, 287 Ga. 194, 198 (3) (a) (695 SE2d 215) (2010); Hill v. State, 221 Ga. 65,

67 (6) (142 SE2d 909) (1965).

15 (g) Finally, Windhom contends the court should have given his requested

charge on opinion evidence based on the officer’s improper testimony addressed in

Division 2, herein. Because that aspect of the officer’s testimony will be inadmissible

at the second trial, this enumeration is now moot.

4. In his final enumeration of error, Windhom contends that his sentence of 20

years to serve amounts to cruel and unusual punishment. But given that a second trial

will take place, we need not address this enumeration.

Judgment reversed and case remanded for new trial. Barnes, P. J., and

McFadden, J., concur.