Frazier v. State

699 S.E.2d 747, 305 Ga. App. 274, 2010 Fulton County D. Rep. 2637, 2010 Ga. App. LEXIS 710
Court of Appeals of Georgia·Decided July 16, 2010·No. A10A0304·Published·Cited by 19 cases

Opinions

BLACKBURN, Senior Appellate Judge.

Following a jury trial, Tomone Frazier was found guilty of armed robbery. He now appeals the denial of his motion for new trial, challenging the sufficiency of the evidence and contending that the trial court erred (i) in excluding the testimony of his expert witness regarding eyewitness testimony and (ii) in denying his motion to suppress identification testimony. Discerning no error, we affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

[275]*275(Punctuation omitted.) Burden v. State.1 Likewise, when reviewing the denial of a motion to suppress, we construe the evidence presented both at the suppression hearing and at trial in a light favorable to upholding the trial court’s findings and judgment. Thomas v. State.2

So viewed, the record reveals that at approximately 3:30 a.m. on September 8, 2007, the victim was walking to work from her home when she was approached by two men. She had spotted the men come out from behind a nearby bush and slowly cross the street before they approached her. One of the men placed a shotgun to her face and said, “Give me all you got.” She said that she looked him “right in his face” during the incident.

The man with the gun shoved the victim and snatched her purse. She told the robber there was nothing in the purse; he unzipped it, looked inside, threw the purse at the victim, and ran. The victim continued walking while she called 911 to report the crime, describing the men and their travel direction to police. She also told police her location; police arrived in minutes, whereupon she was transported to a nearby location where police had two suspects in custody for her identification. The suspects were in separate police cruisers. The victim first identified Frazier, who was 16 years old at that time, as the assailant with the shotgun. The victim also pointed out to police that Frazier had discarded his black t-shirt on the ground nearby. She identified Frazier as her assailant at trial.

1. We first address Frazier’s assertion regarding the insufficiency of the evidence. “We do not determine the credibility of eyewitness identification testimony. Rather ‘the determination of a witness’ credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury.’ ” Jones v. State.3 OCGA § 24-4-8 provides that “[t]he testimony of a single witness is generally sufficient to establish a fact.” Here the victim’s testimony alone is sufficient to authorize the jury’s verdict of guilty beyond a reasonable doubt. Smith v. State.4

2. Frazier next contends that the trial court erred in excluding the testimony of his expert witness, Dr. Jeffrey Neuschatz, regarding the reliability of eyewitness testimony.

After Frazier provided the State notice of his intent to present the testimony of his expert regarding the unreliability of eyewitness testimony, the State filed a motion to exclude the expert’s testimony. [276]*276At the subsequent hearing on the motion, Frazier made a proffer of Dr. Neuschatz’s qualifications and testimony. The proffer indicated that the expert would testify as to the influences that affect eyewitness memory, including exposure time, stress, change of appearance, and the presence of a weapon. The expert opined that it would be “extremely difficult for jurors and lay people, unfamiliar with the research on eyewitness identification and confession evidence, to appreciate the subtle but important factors that can affect eyewitness identification accuracy. ...” The trial court granted the State’s motion, concluding that “the facts of the case do not warrant expert testimony regarding identification, and that a properly instructed jury will be able to weight the evidence accordingly.”

The applicable standard is clear:

[A]dmission of expert testimony regarding eyewitness identification is in the discretion of the trial court. Where eyewitness identification of the defendant is a key element of the State’s case and there is no substantial corroboration of that identification by other evidence, trial courts may not exclude expert testimony without carefully weighing whether the evidence would assist the jury in assessing the reliability of eyewitness testimony and whether expert eyewitness testimony is the only effective way to reveal any weakness in an eyewitness identification. However, the admission or exclusion of this evidence lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.

(Citation, punctuation and footnote omitted.) Johnson v. State.5 Because some evidence in Johnson corroborated the victim’s identification of the defendant, the Supreme Court affirmed the trial court’s discretionary decision to exclude the expert testimony.

Citing Brodes v. State,6 where we reversed two armed robbery convictions because similar expert testimony was excluded, Frazier argues (and the dissent below opines) that as in Brodes, no evidence here corroborated the victim’s identification of the defendant and that therefore the trial court abused its discretion in excluding Frazier’s expert testimony. We disagree. The record reflects substantial evidence corroborating the victim’s identification of Frazier as the gunman; therefore, the trial court did not abuse its discretion in excluding the expert testimony on eyewitness identification.

[277]*277The victim here called police immediately after the armed robbery, identifying to police the male gender of her attackers, their minority race, their approximate ages (16 to 18 years old), their approximate relative heights, their shirts (the gunman wore a black long-sleeve t-shirt with something in the middle of the shirt and the lookout wore a similarly marked black short-sleeve t-shirt), the hairstyle of the gunman (short), the hairstyle of the lookout (“twist-ies”), the pants worn by the men (the lookout wore jean shorts and the gunman wore jean pants), and the long-barreled gun used by the gunman. She further gave the location where she was robbed and the direction in which the attackers were traveling on foot when they left her.

Within two minutes of receiving this dispatch, an officer in a patrol car nearby came to a street some three to four blocks away from the crime scene in the described escape direction of the attackers (only two minutes walking time), where at this early hour of the morning there were no other individuals anywhere in the area other than Frazier and a second man, which men fit the description given by the victim.

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Frazier v. State, 699 S.E.2d 747, 305 Ga. App. 274, 2010 Fulton County D. Rep. 2637, 2010 Ga. App. LEXIS 710 (Ga. Ct. App. 2010).

699 S.E.2d 747 (Frazier v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Frazier v. State
699 S.E.2d 747 (Court of Appeals of Georgia, 2010)