Hubbard v. State

576 S.E.2d 663, 259 Ga. App. 275, 2003 Ga. App. LEXIS 78
CourtCourt of Appeals of Georgia
DecidedJanuary 23, 2003
DocketA02A1818
StatusPublished
Cited by5 cases

This text of 576 S.E.2d 663 (Hubbard v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hubbard v. State, 576 S.E.2d 663, 259 Ga. App. 275, 2003 Ga. App. LEXIS 78 (Ga. Ct. App. 2003).

Opinion

Barnes, Judge.

Enoch Hubbard, acting pro se, appeals his conviction for burglary. He enumerates several errors made by the trial court, contending that (1) the evidence was insufficient; (2) the court erred in denying his motion in limine regarding identification; (3) the State improperly vouched for its witness; (4) the court erred in denying his motion for mistrial after the State’s witness improperly placed his character into evidence; and (5) his trial counsel was ineffective. For the reasons that follow, we affirm.

1. We view the evidence on appeal in the light most favorable to the verdict and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997). Hubbard first challenges the sufficiency of the evidence against him.

Viewed in the light most favorable to the verdict, the evidence at trial established that on Sunday afternoon, November 1, 1998, the victim, who owned a salvage yard, responded to an alarm at the busi *276 ñess. He drove to the shop, heard a noise coming from the warehouse, and entered to find a man with an exhaust manifold in one hand and salvaged copper in the other hand. The man was standing by a door that was cracked open, and the victim shone his light in the man’s face. The victim recognized the man, who then squeezed out through the door and began to run away. The victim chased the man outside, where the two stopped for a short time a little more than an arm’s distance apart; then the man ran off into a chest-deep swampy area, and the victim lost him.

A sheriff’s deputy on patrol responded to the attempted burglary call and spoke with the victim. A detective joined them, and the victim described the burglar as a black male, 30 to 35 years old, larger than the victim, wearing jeans, slip-on boots, and a white t-shirt, who would be wet up to his armpits. The victim also said he had seen the man before but could not remember his name. After reviewing some business paperwork, the victim said he thought the burglar’s name was Earl Robinson but he was not sure. The detective testified that he knew Earl Robinson, and that Robinson was a lot smaller than the burglar described by the victim. The deputy and detective left the scene, and the detective drove around to the other side of the swamp to try to spot the burglar. After driving around for 20 to 30 minutes, the detective spotted a man who fit the description given by the victim, wet from the chest down and wearing jeans and a white shirt. The detective recognized the man as Enoch Hubbard, the defendant, whom he had known for ten to fifteen years.

By the time the detective turned his car around and returned to the spot, Hubbard had disappeared. After calling for other deputies to patrol the area, the detective retrieved a picture of Hubbard from the sheriff’s office and met the victim at a local store. The victim quickly identified Hubbard as the man he had seen in his warehouse, and Hubbard was subsequently arrested and charged with burglary.

We conclude that the evidence as outlined above was sufficient for a rational trier of fact to find Hubbard guilty beyond a reasonable doubt of burglary. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Hubbard asserts that the State improperly “vouched” for its witness, the victim, in its closing argument. The State argued that, while the victim knew the burglar, he could not remember his name after what must have been a frightening experience. He was “a little muddy on some things. ... If you wasn’t [sic] then that would possibly be suspect, but he was honest with you” and gave an accurate description of the man despite having the wrong name. The State responds that Hubbard failed to object to the argument when it was made and has therefore waived his right to raise it on appeal.

*277 “The longstanding rule is that counsel may not state to the jury his or her personal belief about the veracity of a witness.” (Footnote omitted.) Bolden v. State, 272 Ga. 1, 2 (525 SE2d 690) (2000). Because no timely objection was made, “the test for reversible error is not simply whether or not the argument is objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of the trial.” (Citation omitted.) Todd v. State, 261 Ga. 766, 767 (2) (a) (410 SE2d 725) (1991). Pretermitting whether characterizing a witness as “honest” is equivalent to stating a personal belief about the witness’s veracity, we cannot say that a reasonable probability exists that this argument changed the result in this case and therefore find no reversible error.

3. Hubbard contends that the trial court erred in denying his motion in limine and admitting evidence of his photo identification as well as his in-court identification. Hubbard argues that the identification was impermissibly suggestive because the detective showed the victim only one picture.

A pretrial identification procedure may be so tainted that an in-court identification should be excluded, if the procedure was both impermissibly suggestive and resulted in a substantial likelihood of irreparable misidentification. Bradley v. State, 152 Ga. App. 902 (264 SE2d 332) (1980). The question is whether the identification was reliable despite the suggestive confrontation, considering all the circumstances. Id. Those circumstances include the witness’s opportunity to see the criminal at the time of the crime; his degree of attention; the accuracy of his prior description of the criminal; the level of certainty he demonstrated at the confrontation; and the length of time between the crime and the confrontation. Id. at 902-903, citing Neil v. Biggers, 409 U. S. 188, 199 (93 SC 375, 34 LE2d 401) (1972).

The display of a single photograph to a victim for identification purposes is inherently suggestive, Perkins v. State, 216 Ga. App. 118, 119 (1) (453 SE2d 135) (1995), a proposition we have espoused for at least 25 years. Talley v. State, 137 Ga. App. 548, 551 (2) (224 SE2d 455) (1976). Wé must thus determine whether, under the “totality of the circumstances,” this single photographic display was conducive to irreparable mistaken identification.

Although the display was impermissibly suggestive, misidentification was not likely because the victim had ample opportunity to view the criminal at the time of the crime; all of his attention was focused upon the criminal who had been caught in the act; the victim gave a detailed description of the criminal’s size, clothing, and wetness; he immediately identified the defendant from the picture shown to him within two hours of the incident; and he positively identified the defendant at trial. Hixson v. State, 217 Ga. App. 606, *278 608 (3) (458 SE2d 402) (1995). The victim told the deputy sheriffs at the scene that he recognized the defendant, although he could not remember his name.

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Bluebook (online)
576 S.E.2d 663, 259 Ga. App. 275, 2003 Ga. App. LEXIS 78, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hubbard-v-state-gactapp-2003.