FIRST DIVISION ELLINGTON, C. J., PHIPPS, P. J., and BRANCH, J.
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/
June 4, 2013
In the Court of Appeals of Georgia A13A0293. HARRELL v. THE STATE. PH-012C
PHIPPS, Presiding Judge.
Two masked men held up a gas station, making off with a substantial amount
of cash. In connection with that incident, a jury found Julius Demetrius Harrell and
his co-defendant guilty of armed robbery and possession of a firearm during
commission of a crime (the armed robbery). Challenging his convictions therefor,
Harrell contests the sufficiency of the evidence and the denial of his motion to sever
his trial from that of his co-defendant. We affirm.
1. When an appellant challenges the sufficiency of the evidence to support a
conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”1
So viewed, the evidence showed the following. The gas station was located in
the City of Duluth, and functioned also as a check-cashing store. At about 8:30 p.m.
on February 22, 2007, two men entered the store. Each man was wearing a mask that
covered his head. One customer was inside the store. The store’s clerk was in the
back office, counting money. That room was located just behind the check-out
counter, and an interior window permitted visual access between it and the customer
shopping area. One of the masked men, using his left hand, pointed a handgun at the
clerk. By the time the clerk realized that his life was being threatened, the second
masked man had rounded the check-out counter, entered the back office, and ordered
the clerk to the floor. The clerk instantly complied. The second masked man hurriedly
collected the cash from the back office, including that which was hidden in unlocked
file cabinet drawers, then stashed the collected cash in a bag he already had with him.
The masked men fled the store, taking with them roughly $84,000 in U. S. currency.
1 Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
2 The clerk summoned police, who confiscated a video-recording of the criminal
episode, which was later shown to the jury. The clerk was never able to identify either
robber, but recalled that the gunman was noticeably taller than the bagman. Police
investigation led to a man who was later indicted for his involvement in the heist.
That man entered a negotiated guilty plea, pursuant to which he testified as a witness
for the state. At the underlying joint trial, he identified the two masked men: (i)
Harrell (the appellant), as the bagman; and (ii) Manuel Miguel Rivera (who was
Harrell’s co-defendant at trial), as the gunman. Further, the man admitted that he had
served as the getaway driver.
While on the stand, the getaway driver supplied these details about events
before and after the armed robbery. Earlier on the date in question, he had picked up
both Harrell and Rivera. As the three of them rode around plotting to commit an
armed robbery, they cased and then selected the gas station, noting in particular its
surveillance equipment, a back office, an opened door to that room just around the
counter, and a money counter on a table in that back room. Rivera had with him a
pistol with a scope, and he and Harrell purchased head masks. As the getaway driver
surmised at trial, “[T]he whole plan was for [Rivera] to go in and pull out the gun and
[Harrell] to go to the back room and get the money.” Accordingly, upon returning to
3 the gas station with the weapon and masks, the three of them first monitored the
activities upon the premises. Then, when there was only one customer inside the
store, Harrell and Rivera left the vehicle and headed for the store. Each put on a head
mask, and Rivera carried the firearm. Moments later, the two ran back to the waiting
vehicle. Harrell was carrying a bag of money. Later that evening, Harrell and Rivera
gave the getaway driver five thousand dollars of the stolen money.
The getaway driver, Harrell, and Rivera had attended the same high school,
each graduating in 2005 or 2006. The getaway driver testified that Harrell was about
5’7” and Rivera was over 6 feet tall. Also, the getaway driver testified that Rivera was
left-handed. The getaway driver had known neither Harrell nor Rivera to either work
a job or own a vehicle. In February 2007, when the armed robbery was committed,
Rivera was living with Harrell in an apartment.
On the morning after the armed robbery, Harrell and Rivera called the getaway
driver and asked for a ride to a used-car lot. He agreed, and dropped them off. The
next time he saw Harrell and Rivera, each was driving an SUV. The getaway driver
further testified that, each time he saw Harrell and Rivera after the robbery, “they
always had nice clothes and jewelry,” and “everything was new. I kept seeing them
wearing different clothes, different jewelry, so forth.”
4 The used-car lot vice-president recalled assisting Harrell and Rivera as each
picked out an SUV. He testified that on February 23, 2007, which was the day after
the armed robbery, Harrell purchased a 1999 Ford Expedition, paying for the vehicle
in cash; Rivera purchased on that day a 1998 Range Rover, making a $7,300 cash
down payment. Five days later, Harrell and Rivera returned to the used-car lot.
Harrell traded the Expedition for a Lincoln Navigator, paying an additional $2,000
in cash; Rivera paid in cash the approximately $2,500 balance remaining on his SUV.
A friend of Harrell testified that, as of late February 2007, Harrell was living
with his mother and had no job – except that he occasionally “picked up a paycheck”
from his mother. Yet, as the friend remembered, Harrell obtained an Expedition, and
soon thereafter, “a nice – decent car.” During that time, the friend had further noticed
that Harrell had begun to acquire expensive clothing and other items. So the friend
asked Harrell, “How did you obtain your money?” The friend testified that Harrell
remained “tight-lipped” and would explain only that “it was a gravy lick.” According
to Harrell’s friend, “Street terminology for a lick is either a robbery or maybe you
come upon some money some way, somehow. You know, it has numerous amount of
definitions or what have you.”
5 Thus, the state called to the stand a police lieutenant who had worked for
seventeen years with the City of Duluth Police Department, who was then assigned
to the division of criminal investigations for robberies, and who had responded to
between 75 and 100 armed robberies. On direct examination, the stated elicited the
following:
Q: And based on your training and experience, what does the term “a lick” mean?
A: It’s a street term for robbery.
Q: Do you know it to mean anything other than a robbery?
A: No, sir.
As a similar transaction to show Rivera’s bent of mind and course of conduct,
the state presented evidence of an armed robbery that had occurred at a sandwich
shop three days before the armed robbery at the gas station.
Free access — add to your briefcase to read the full text and ask questions with AI
FIRST DIVISION ELLINGTON, C. J., PHIPPS, P. J., and BRANCH, J.
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/
June 4, 2013
In the Court of Appeals of Georgia A13A0293. HARRELL v. THE STATE. PH-012C
PHIPPS, Presiding Judge.
Two masked men held up a gas station, making off with a substantial amount
of cash. In connection with that incident, a jury found Julius Demetrius Harrell and
his co-defendant guilty of armed robbery and possession of a firearm during
commission of a crime (the armed robbery). Challenging his convictions therefor,
Harrell contests the sufficiency of the evidence and the denial of his motion to sever
his trial from that of his co-defendant. We affirm.
1. When an appellant challenges the sufficiency of the evidence to support a
conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”1
So viewed, the evidence showed the following. The gas station was located in
the City of Duluth, and functioned also as a check-cashing store. At about 8:30 p.m.
on February 22, 2007, two men entered the store. Each man was wearing a mask that
covered his head. One customer was inside the store. The store’s clerk was in the
back office, counting money. That room was located just behind the check-out
counter, and an interior window permitted visual access between it and the customer
shopping area. One of the masked men, using his left hand, pointed a handgun at the
clerk. By the time the clerk realized that his life was being threatened, the second
masked man had rounded the check-out counter, entered the back office, and ordered
the clerk to the floor. The clerk instantly complied. The second masked man hurriedly
collected the cash from the back office, including that which was hidden in unlocked
file cabinet drawers, then stashed the collected cash in a bag he already had with him.
The masked men fled the store, taking with them roughly $84,000 in U. S. currency.
1 Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
2 The clerk summoned police, who confiscated a video-recording of the criminal
episode, which was later shown to the jury. The clerk was never able to identify either
robber, but recalled that the gunman was noticeably taller than the bagman. Police
investigation led to a man who was later indicted for his involvement in the heist.
That man entered a negotiated guilty plea, pursuant to which he testified as a witness
for the state. At the underlying joint trial, he identified the two masked men: (i)
Harrell (the appellant), as the bagman; and (ii) Manuel Miguel Rivera (who was
Harrell’s co-defendant at trial), as the gunman. Further, the man admitted that he had
served as the getaway driver.
While on the stand, the getaway driver supplied these details about events
before and after the armed robbery. Earlier on the date in question, he had picked up
both Harrell and Rivera. As the three of them rode around plotting to commit an
armed robbery, they cased and then selected the gas station, noting in particular its
surveillance equipment, a back office, an opened door to that room just around the
counter, and a money counter on a table in that back room. Rivera had with him a
pistol with a scope, and he and Harrell purchased head masks. As the getaway driver
surmised at trial, “[T]he whole plan was for [Rivera] to go in and pull out the gun and
[Harrell] to go to the back room and get the money.” Accordingly, upon returning to
3 the gas station with the weapon and masks, the three of them first monitored the
activities upon the premises. Then, when there was only one customer inside the
store, Harrell and Rivera left the vehicle and headed for the store. Each put on a head
mask, and Rivera carried the firearm. Moments later, the two ran back to the waiting
vehicle. Harrell was carrying a bag of money. Later that evening, Harrell and Rivera
gave the getaway driver five thousand dollars of the stolen money.
The getaway driver, Harrell, and Rivera had attended the same high school,
each graduating in 2005 or 2006. The getaway driver testified that Harrell was about
5’7” and Rivera was over 6 feet tall. Also, the getaway driver testified that Rivera was
left-handed. The getaway driver had known neither Harrell nor Rivera to either work
a job or own a vehicle. In February 2007, when the armed robbery was committed,
Rivera was living with Harrell in an apartment.
On the morning after the armed robbery, Harrell and Rivera called the getaway
driver and asked for a ride to a used-car lot. He agreed, and dropped them off. The
next time he saw Harrell and Rivera, each was driving an SUV. The getaway driver
further testified that, each time he saw Harrell and Rivera after the robbery, “they
always had nice clothes and jewelry,” and “everything was new. I kept seeing them
wearing different clothes, different jewelry, so forth.”
4 The used-car lot vice-president recalled assisting Harrell and Rivera as each
picked out an SUV. He testified that on February 23, 2007, which was the day after
the armed robbery, Harrell purchased a 1999 Ford Expedition, paying for the vehicle
in cash; Rivera purchased on that day a 1998 Range Rover, making a $7,300 cash
down payment. Five days later, Harrell and Rivera returned to the used-car lot.
Harrell traded the Expedition for a Lincoln Navigator, paying an additional $2,000
in cash; Rivera paid in cash the approximately $2,500 balance remaining on his SUV.
A friend of Harrell testified that, as of late February 2007, Harrell was living
with his mother and had no job – except that he occasionally “picked up a paycheck”
from his mother. Yet, as the friend remembered, Harrell obtained an Expedition, and
soon thereafter, “a nice – decent car.” During that time, the friend had further noticed
that Harrell had begun to acquire expensive clothing and other items. So the friend
asked Harrell, “How did you obtain your money?” The friend testified that Harrell
remained “tight-lipped” and would explain only that “it was a gravy lick.” According
to Harrell’s friend, “Street terminology for a lick is either a robbery or maybe you
come upon some money some way, somehow. You know, it has numerous amount of
definitions or what have you.”
5 Thus, the state called to the stand a police lieutenant who had worked for
seventeen years with the City of Duluth Police Department, who was then assigned
to the division of criminal investigations for robberies, and who had responded to
between 75 and 100 armed robberies. On direct examination, the stated elicited the
following:
Q: And based on your training and experience, what does the term “a lick” mean?
A: It’s a street term for robbery.
Q: Do you know it to mean anything other than a robbery?
A: No, sir.
As a similar transaction to show Rivera’s bent of mind and course of conduct,
the state presented evidence of an armed robbery that had occurred at a sandwich
shop three days before the armed robbery at the gas station. Like the gas station, the
sandwich stop was located in Duluth. At about 8:30 p.m., a masked man about six
feet tall entered the shop. He was carrying a handgun and a bag. There was no
customer in the shop at the time, and the masked man aimed the weapon so that its
red laser light reflected on the store’s clerk. He approached the clerk and ordered her
6 to take the money out of the cash register and put it in the bag; she complied. Next,
the gunman guided the clerk to a back room, where he ordered her to take the money
out of a safe that was hidden underneath a table and to put that money in his bag; she
complied. The man fled the store, taking with him between $500 and $600 of the
store’s cash. Based on her observations of the masked gunman, the clerk discerned
that he was Rivera, with whom she had worked at the store for several months in late
2006. Additionally, she and the shop’s co-owner, who also had worked with Rivera
during those several months prior to that incident, testified that Rivera was left-
handed. A video-recording of the armed robbery, which had been captured by
surveillance equipment, was shown to the jury.
Neither Harrell nor Rivera testified. Rivera presented no witnesses, but Harrell
called his mother to testify that he had once obtained a “settlement” and that he had
worked prior jobs. Harrell’s mother also testified that, in December 2006, Rivera had
nowhere to live and had thus moved into her apartment, where Harrell also lived.
On appeal, Harrell maintains that the evidence was insufficient, pointing out
that the gas station clerk was unable to identify him as one of the two masked men
and that the video recording of the armed robbery failed to clearly depict either
perpetrator’s face. Therefore, Harrell argues that his felony convictions rested solely
7 on the uncorroborated testimony of an accomplice, the getaway driver, in violation
of then applicable OCGA § 24-4-8.2
Under that Code section, “the testimony of an accomplice used to convict the
[defendant] of a crime must be supported by independent corroborating evidence as
to the identity and participation of the [defendant] tending to connect him to the
crime.”3 However, “slight evidence of corroboration connecting the defendant with
the crime satisfies the requirements of OCGA § 24-4-8 and that evidence may be
entirely circumstantial. Also, evidence of the defendant’s conduct before and after the
crime may give rise to an inference that he participated in the crime.”4 Even “[the
defendant’s] own statement can serve to corroborate his accomplice’s inculpatory
2 When Harrell’s trial was conducted in November 2008, OCGA § 24-4-8 (2008) pertinently provided that, “The testimony of a single witness is generally sufficient to establish a fact. However, in . . . felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness.” 3 Ladson v. State, 248 Ga. 470, 475 (5) (285 SE2d 508) (1981) (citations and punctuation omitted). 4 Parkerson v. State, 265 Ga. 438, 439 (2) (457 SE2d 667) (1995) (footnotes omitted).
8 testimony.”5 “The corroborating evidence need not be sufficient by itself to convict
[a defendant], nor does the testimony of an accomplice need to be corroborated in
every detail.”6
Here, the state presented the requisite corroboration. The getaway driver’s
testimony about the heights of Harrell and Rivera was consistent with the gas station
clerk’s comparison of the heights of the bagman and the gunman. Additionally, the
jury was authorized to find from the testimony of witnesses other than the getaway
driver that, around the time of the armed robbery, Harrell had held no job and that he
and Rivera lived with Harrell’s mother; that the morning after approximately $84,000
in cash was taken during the armed robbery, Harrell paid cash for an SUV; and that
five days after purchasing that SUV, Harrell paid an additional $2,000 in cash to trade
it for another vehicle. The jury was authorized to find from the testimony of witnesses
other than the getaway driver that, around this time, Harrell began wearing expensive
clothing and other items which, together with acquiring two vehicles, attracted the
attention of his friend who pointedly asked him, “How did you obtain your money?”
5 James v. State, 316 Ga. App. 406, 408 (1) (730 SE2d 20) (2012) (footnote omitted). 6 Terrell v. State, 271 Ga. 783, 786 (3) (523 SE2d 294) (1999) (citations omitted).
9 The jury was authorized to conclude from the testimony of witnesses other than the
getaway driver that Harrell conveyed to his friend that he had obtained the money by
committing robbery.
“The sufficiency of evidence corroborating the testimony of an accomplice is
a matter for the jury, and [where, as here,] the verdict[s] [are] supported by ‘slight
evidence’ of corroboration connecting the defendant with the crime[s], this court will
not say that the evidence did not authorize the verdict[s].”7 Therefore, this challenge
to the sufficiency of the evidence fails.
2. Harrell contends that the trial court erred in denying his motion for directed
verdict of acquittal.
The standard for reviewing a denial of a motion for a directed verdict of acquittal is the same test to be used when the sufficiency of the evidence
7 Ladson, supra (citation and punctuation omitted); see Terrell, supra; see generally Jones v. State, 271 Ga. 433-434 (520 SE2d 690) (1999) (determining that requisite corroboration was supplied for accomplice’s testimony by defendant’s own statement); Cox v. State, 243 Ga. App. 790-792 (534 SE2d 464) (2000) (determining that in prosecution for armed robbery at a store by two men, where one of the men had a towel wrapped around his face and removed $6,000 to $7,000 from a safe, corroboration was supplied by evidence, inter alia, that within 45 minutes of the crime, appellant was seen running out of a dirt path that led from the store and carrying a gun which he tried to conceal in a towel; footprints on that path led directly to the vacant apartment where appellant’s mother had lived three weeks before; and within two hours of robbery, appellant was seen with “folded up, knots of money”).
10 is challenged, i.e., under the rule of Jackson v. Virginia,[8] whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense.9
Harrell argues that the state failed to exclude the possibility that the cash he
used to purchase the SUVs was gained through lawful means, citing his mother’s
testimony that “he got a settlement” and that he had worked various jobs. Concerning
the latter, Harrell’s mother stated that he had “worked with me at my center as a after-
school teacher”; that he had “worked odds and ends jobs” with “a carpet cleaning
guy”; that he had done “security work” during a road race; that he had worked
“through the school program” when he was in high school; and that he had worked
at a grocery store when he was about 15 or 16 years old.
But Harrell’s mother gave no details about the amounts or dates of any
settlement monies received by him. And as to his employment history, Harrell’s
mother gave no relevant details concerning the duration of time Harrell worked or the
amount of money earned through his employment. And even if she had, “the jury was
authorized to disbelieve [Harrell’s mother’s] testimony and credit the testimony of the
8 Supra. 9 Dorsey v. State, 279 Ga. 534, 542 (3) (615 SE2d 512) (2005) (citations omitted).
11 [s]tate’s witnesses.”10 It was for the jury “to resolve any conflicts or inconsistencies
in the evidence, just as the credibility of the witnesses was a matter within the
province of the jury.”11 When this court reviews the sufficiency of the evidence, “it
does not re-weigh the evidence or resolve conflicts in witness testimony, but instead
it defers to the jury’s assessment of the weight and credibility of the evidence.”12
Here, the getaway driver identified Harrell as the masked bagman during the
armed robbery at the gas station. Evidence further showed that, around the time of the
armed robbery, Harrell held no job and lived with his mother in her apartment; the
week after roughly $84,000 in cash was taken during the gas station armed robbery,
Harrell paid cash for an SUV, then paid additional cash to trade into another SUV;
meanwhile, he upgraded his clothing and jewelry; and when asked by a friend how
he had obtained the money, Harrell conveyed that he had committed robbery. Viewed
in the light most favorable to the prosecution, the evidence authorized the jury to find
10 Mickens v. State, 277 Ga. 627, 629 (593 SE2d 350) (2004) (citation omitted). 11 Mearidy v. State, 287 Ga. 312, 313 (696 SE2d 61) (2010) (citations omitted); see Foster v. State, 273 Ga. 34, 35 (1) (537 SE2d 659) (2000) (“Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence.”). 12 McLean v. State, 291 Ga. 873, 874 (1) (738 SE2d 267) (2012) (citation and punctuation omitted).
12 that the state had proved beyond a reasonable doubt that Harrell was guilty of the
crimes for which he was convicted.13
3. Harrell contends that the trial court erred by not granting his motion to sever
his trial from that of his co-defendant, Rivera. Harrell claims that his convictions
resulted from a prejudicial spillover effect of evidence against Rivera, citing the
similar transaction evidence admitted only against Rivera.
The following three factors must be considered by a trial court when exercising
its discretion in regard to a motion to sever in a case in which the death penalty is not
sought:
(1) Will the number of defendants create confusion as to the law and evidence applicable to each? (2) Is there a danger that admissible evidence against one defendant will be considered against the other despite the court’s instructions? (3) Are the defenses antagonistic to each other or to each other’s rights?14
13 See Jackson, supra. 14 Williams v. State, 280 Ga. 584, 587 (3) (630 SE2d 370) (2006) (punctuation and footnote omitted).
13 In this case, there was no showing that any confusion was engendered by the
number of defendants or by the applicable law.15 The record reflects that the trial
court aptly instructed the jury that
evidence of other acts or occurrences of Defendant Rivera that are sufficiently similar or connected, and therefore purportedly related to the offenses for which he is on trial, may be considered for the limited purpose of showing, if it does, the bent of mind and course of conduct of said defendant in the crimes charged in the case now on trial. Such evidence, if any, may not be considered by you for any other purpose, and may not be considered at all concerning the Defendant Harrell.
The trial court provided ample instructions on principles of parties to a crime,
explaining further that the defendants were “on trial for the offenses charged in this
bill of indictment only and not for any other acts or occurrences, even though such
acts or occurrences may incidentally be criminal,” and that “[t]hough you may
consider all of the evidence as a whole, conviction of one defendant does not
necessarily require conviction of another. You, the jury, must determine guilt or
innocence of each defendant separately.”
15 See generally Murphy v. State, 263 Ga. App. 62, 63 (1) (587 SE2d 223) (2003) (noting that qualified jurors under oath are presumed to follow the trial court’s instructions).
14 The defenses of Harrell and his co-defendant were not shown as antagonistic;
“neither attempted to point the blame at the other. They simply argued that the
prosecution had failed to meet its burden of proof.”16 And although Harrell asserts
that the joint trial harmed him because the evidence against his co-defendant was
stronger than the evidence against him, “it is not enough for the defendant to show
that he would have a better chance of acquittal at a separate trial or that the evidence
against a co-defendant is stronger. The defendant must show clearly that a joint trial
prejudiced his defense, resulting in a denial of due process.”17 Harrell has made no
such showing. Accordingly, he has not demonstrated that the trial court abused its
discretion in denying his motion for a separate trial.18
Judgment affirmed. Ellington, C. J., and Branch, J., concur.
16 Moon v. State, 288 Ga. 508, 510 (2) (705 SE2d 649) (2011). 17 Herbert v. State, 288 Ga. 843, 845 (2) (708 SE2d 260) (2011) (citations omitted). 18 See Moon, supra; Herbert, supra; Williams, supra at 587-588 (3); White v. State, 315 Ga. App. 54, 62-63 (7) (726 SE2d 548) (2012).