THIRD DIVISION BARNES, P. J., BOGGS and BRANCH, 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/
March 18, 2015
In the Court of Appeals of Georgia A14A1803. AMEY v. THE STATE. BO-066C
BOGGS, Judge.
Marcus Amey appeals from his convictions for armed robbery, aggravated
assault, possession of firearm during commission of a felony, and possession of a
firearm by a first offender probationer. He contends that the trial court erred by
admitting evidence of a prior attempted robbery and that his trial counsel provided
ineffective assistance of counsel. We find merit in Amey’s contention that the prior
attempted robbery should not have been admitted into evidence, and we therefore
reverse.
The record shows that the charges at issue in this appeal arose from the
September 26, 2011 robbery and aggravated assault of a woman in an apartment complex parking lot. The prior crime took place on September 29, 2008 and involved
the attempted robbery of a woman outside her home.
September 26, 2011 Robbery
The victim testified that when she drove into her apartment complex around
2:00 a.m., she saw a “very noticeable” red car that looked as if it was leaving the
apartment complex. After she passed it, she checked her rear view mirror and noticed
that it was following her. She parked and waited a couple of minutes “to let the car
park or go wherever they’re going to go,” because she “felt at that moment that
something wasn’t right.” She saw the car park in front of a different building in the
apartment complex and heard a car door close before getting out of her car and
walking toward her building.
When she looked behind her, she saw a fit, six-foot tall black male, wearing all
black with a tight-fitting tank top. She locked eyes with him, “[a]nd that’s when he
got the gun and came at me and pointed it to my head.” She tried to dial 911, but was
unable to do so. The man placed the gun to the back of her head, told her to turn
around, and stated, “I know you have money.” After the victim denied having any
money, he told her to lie on the ground and start counting. While she was counting,
he grabbed her Coach purse which contained $10, her wallet, a rim lock, and papers.
2 When she glanced up as he started to walk away, he told her, “Turn around.” She
heard him get into a car and leave. After she “felt that the car left, [she] called 911.”
Following her initial report to the police, the victim called back to add that she had
determined from online research that the red car she had seen was a Dodge Magnum.
The victim testified that a street light “was working that night, which is angling
to where - - toward where the incident happened, so it’s visible.” She believed that
there was more than one person in the red car and that the person who robbed her was
the passenger, but she acknowledged that she could not see how many people were
in the car. She heard the car running during the entire encounter and it was “an in-
and-out type thing.” She was not certain how long she interacted with the robber, but
guessed it was “anywhere between five and ten minutes.”
On September 27, 2011 at 7:19 p.m., a police sergeant stopped a red Dodge
Magnum after it made an unsafe lane change based upon a BOLO for the same make
and model. The car was occupied by three women and one man, Amey, who occupied
the right rear passenger seat. After giving the driver a warning, the sergeant “sent
everybody on their way.” While completing paperwork on the traffic stop, the
sergeant realized that one of the female passengers had an outstanding arrest warrant.
3 Based upon his recollection of where the driver lived, he went to nearby gas
station to keep watch for the car. At 8:09 p.m., he saw the red Dodge Magnum
approaching with one front headlight out. When he stopped the car again, it was
occupied by the same four people sitting in the same location. He placed the female
passenger under arrest for the outstanding warrant. After she stated that she wanted
to give her personal belongings to Amey, the sergeant asked Amey to step out of the
car.
The victim drove past the location of the traffic stop and called 911 to report
that the police had stopped a car similar to the one involved in her robbery. A
detective investigating the robbery testified that when he called the victim back, she
stated that “a large, heavyset black male standing outside of the vehicle . . . appeared
to be the person that had robbed . . . her.”1 The victim testified that the location where
she saw the red Magnum was “[l]iterally across the street from one of the entrances
of my apartments.” Based upon a conversation with the detective investigating the
robbery, the sergeant transported Amey and the vehicle “up to headquarters” while
a search warrant was being obtained.
1 In her testimony, the victim denied seeing Amey standing near the car.
4 A search of the car revealed a handgun in the rear hatch compartment behind
a large speaker box mounted on the backside of the rear passenger seat. At the time
of the second traffic stop, a retractable cover used to hide the contents of the hatch
compartment was in place; the detective who searched the vehicle testified that it
would have been possible for a rear passenger to place the gun in the hatch
compartment by reaching “between the [rear] seat and that retractable cover into the
back cargo area of the vehicle.” No items belonging to the victim were found in the
car or in a search of the apartment where Amey was staying.
A detective showed the victim a photographic line-up several hours after she
called to report that the police had stopped the red Magnum involved in her robbery.
The victim pointed to Amey’s photo and stated, “This one looks closer to the
description than any other. Do you know his height?” The detective responded, “Do
me a favor, go ahead and circle number 3.” At trial, he explained that he asks all
witness to circle a picture to which they have pointed. The victim testified that at the
time of the line-up, she was 75% certain that the man she identified was the one who
had robbed her. At trial, she stated that she “was more than 50% sure” and that she
selected “[t]he one that [she] thought was the best one that [she] felt was available at
the time of the incident.” The victim explained that she was not 100% certain because
5 “it was nighttime. It wasn’t perfect . . . lighting, but enough for me to see.” She
testified that she was able to identify him as the robber during the trial because “[h]e
looks like the individual that attacked me that night.”
September 29, 2008 Robbery
The victim testified that after she arrived home around 10:00 p.m. and parked
in her driveway, two men approached her while she was unloading items from the
trunk of her car. The men were wearing black bandanas over their faces, and one of
them pointed a gun at her head. When they told her they wanted money, she gave
them her purse. After searching the purse and finding no money, the men asked for
the victim’s car keys. She asked for permission to remove something from the trunk
before they took her car, and the men then decided to leave without taking anything
from her.
The victim called the police and gave the following description of the men:
they were dressed in all black; one was tall and carrying a book bag; and the other
was “short and chubby.” According to the victim, the tall one held the gun and did
most of the talking. She explained that she could not identify their race because she
could not see their faces.
6 A few minutes after a description of the men was dispatched, a patrol officer
saw two men matching the description walking out of a subdivision “in the immediate
area of the robbery.” The officer testified that “[o]ne of the individuals was wearing
a red shirt and black shorts, and the other was wearing a white shirt and black shorts.”
Additionally, one of them, later identified as Mr. Hitchins, was carrying a backpack.
The officer explained that he believed they matched the description even though they
were not wearing all black because “in instances of robbery or even burglaries, . . .
it’s . . . common for the people that are responsible to shed clothing or have an extra
shirt with them.” When the officer patted Hitchins down for weapons while talking
with him about the recent robbery, a gun fell out of his shorts. Both Hitchins and the
second man, Amey, were arrested, and a search of Amey revealed a black do-rag in
his shorts. The officer discovered two black t-shirts and a black bandana when he
searched the backpack. The officer testified that one of the t-shirts was large enough
to fit Amey.
After the State presented the above evidence, it introduced, without objection,
a copy of Amey’s first offender plea to criminal attempt to commit robbery, as well
as a copy of the indictment for armed robbery.
7 Admission of Prior Robbery
After the State gave notice of its intent to present evidence of the prior robbery,
the trial court held a hearing as required by Uniform Superior Court Rule 31.3 (B).
In July 2012, the trial court ruled that the prior robbery could be admitted to “to show
intent, course of conduct[,] and bent of mind.” During the trial, which took place in
January 2013, the State acknowledged application of the new Evidence Code and
sought to admit the prior robbery for “identity, proof of motive, and opportunity.”
After again weighing the probative value of the evidence against its prejudicial
impact, the trial court allowed the evidence for each of the new reasons identified by
the State. The court also granted Amey’s request for a continuing objection to the
evidence.
1. Amey contends the trial court erred by admitting evidence of the other crime
because it was not admitted for a proper purpose. As Amey’s trial took place after
January 1, 2013, we must apply Georgia’s new Evidence Code to determine if the
trial court properly admitted evidence of the attempted robbery that took place nearly
three years before the robbery for which Amey was tried. Ga. L. 2011, pp. 99, § 101.
The Supreme Court of Georgia recently held that “where the new Georgia rules
mirror their federal counterparts, it is clear that the General Assembly intended for
8 Georgia courts to look to the federal rules and how federal appellate courts have
interpreted those rules for guidance.” Parker v. State, Ga. (Case No. S14A1005,
decided February 16, 2015). See also Jones v. State, 326 Ga. App. 658, 660 (1) (757
SE2d 261) (2014). Additionally, in the event of any conflicting interpretations
between the Eleventh Circuit and other federal circuit courts, we must follow the
Eleventh Circuit rule. Bradshaw v. State, Ga. (3) (Case No. S14A1365, decided
March 2, 2015). The new Georgia evidence rule governing the admission of other
crimes, OCGA § 24-4-404 (b),2 tracks Federal Rule of Evidence 404 (b),3 and the
2 OCGA § 24-4-404 (b) provides in relevant part: “Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” 3 Federal Rule of Evidence 404 (b) states in relevant part: “(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
9 balancing test embodied in OCGA § 24-4-4034 mirrors Federal Rule of Evidence
403.5 Id.
The Eleventh Circuit uses a three-part test to determine if evidence of other
crimes or acts can be admitted pursuant to Federal Rule of Evidence 404 (b): “(1) the
evidence must be relevant to an issue other than defendant’s character; (2) the
probative value must not be substantially outweighed by its undue prejudice; and (3)
the government must offer sufficient proof so that the jury could find that defendant
committed the act.” (Citation, punctuation and footnote omitted.) Bradshaw, supra.
On appeal, we review a trial court’s decision to admit evidence of other crimes “for
a clear abuse of discretion.” (Citation and punctuation omitted.) Id.
Amey contends that the evidence of the other robbery attempt was inadmissible
because the State failed to prove that it was relevant to an issue other than his
character. As the United State Supreme Court explained more than 60 years ago:
4 OCGA § 24-4-403 states: “Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” 5 Federal Rule of Evidence 403 provides: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
10 The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.
(Citations and footnotes omitted.) Michelson v. United States, 335 U. S. 469, 474-76
(69 SCt 213, 93 LEd 168) (1948).6
To satisfy the first prong of the test for admission of another crime, the State
must show that evidence of Amey’s prior attempted robbery is relevant to an issue
other than his character, such as “proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” OCGA § 24-4-404 (b).
“Any evidence is relevant which logically tends to prove or to disprove a material fact
which is at issue in the case, and every act or circumstance serving to elucidate or to
6 While this decision preceded the adoption of the Federal Rules of Evidence, it provides the historical context behind the prohibition of such evidence. See Pub. L. 93-595, 88 Stat. 1926 (1975).
11 throw light upon a material issue or issues is relevant.” (Citation and punctuation
omitted.) Woodall v. State, 294 Ga. 624, 632 (7) (754 SE2d 335) (2014).
(a) Identity. “Evidence of independent crimes, wrongs, or acts only proves
identity, as distinguished from the defendant’s bad character, or propensity to commit
a crime, when the other incidents are similar to the charged defense in distinct ways
that serve as the defendant’s signature.” Paul S. Milich, Georgia Rules of Evidence
§ 11:13 at 326 (2014-2015 ed.). See also Maggard v. State, 259 Ga. 291, 293 (2) (380
SE2d 259) (1989) (“If for example, the evidence is being presented to prove the
identity of the perpetrator offense charged, a long list of similarities between or
among the crimes might be necessary to show that the crime bears the defendant’s
‘criminal signature’”(Emphasis in original.)).
A much greater degree of similarity between the charged crime and the uncharged crime is required when the evidence of the other crime is introduced to prove identity than when it is introduced to prove a state of mind. Much more is demanded than the mere repeated commission of crimes of the same class, such as repeated murders, robberies, or rapes.
(Citation and punctuation omitted.) Harper v. State, Ga. App. (2) (b) (Case No.
A14A2019, decided January 28, 2015). The inference of identity flowing from the
12 other crime “must be extremely strong” and “bear such peculiar, unique, or bizarre
similarities as to mark them as the handiwork of the same individual.” (Citation and
footnote omitted.) United States v. Myers, 550 F2d 1036, 1045-1046 (5th Cir. 1977).7
See also Usher v. State, 290 Ga. App. 710, 712 (1) (659 SE2d 920) (2008) (physical
precedent only) (“the prior bad act and the charged offense must be ‘so nearly
identical in method as to earmark both the prior bad act and the charged offense as
the handiwork of the accused” (Citation and punctuation omitted.)).8
In this case, the State failed to prove that Amey’s prior attempted robbery was
so similar to the charged offense that the charged offense must have been his
handiwork. Robbery of a woman alone at night after she has parked her car “is not in
the nature of a signature so as to be proof of the perpetrator’s identity.” Jones v. State,
236 Ga. App. 330, 333 (1) (c) (511 SE2d 883) (1999) (prior guilty pleas to armed
robbery not probative of identity in subsequent robbery). See also Cole v. State, 216
Ga. App. 68, 69-70 (1) (453 SE2d 495) (1994) (previous robbery inadmissible to
7 The Eleventh Circuit has adopted as binding precedent decisions made by the Fifth Circuit handed down on or before September 30, 1981. Bonner v. City of Prichard, 661 F2d 1206, 1209 (II) (11th Cir. 1981). 8 At pointed out by Professor Milich, “‘similarity’ per se is not an exception to the character rule but only a piece of the larger issue of whether the evidence” can be admitted for a proper purpose. Milich §11:13 at 338.
13 prove identity in later robbery); United States v. Lail, 846 F2d 1299, 1301 (11th Cir.
1988) (traits common to many bank robberies did not provide evidence of a signature
trait). Compare Peoples v. State, 295 Ga. 44, 54-55 (4) (b) (757 SE2d 646) (2014)
(evidence of prior robbery admissible to prove identity where same gun used in
robbery and charged offense of home invasion).
(b) Motive. Evidence of another crime may be admitted “to show the
defendant’s motive for committing the crime with which he is charged,” but not to
demonstrate “a propensity to act in accordance with the character indicated by that
[other crime or] conduct.” United States v. Cunningham, 103 F3d 553, 556 (7th Cir.
1996). “Motive has been defined as the reason that nudges the will and prods the
mind to indulge in the criminal intent. United States v. Beechum, 582 F2d 898, 912
n.15 (5th Cir. 1978).” (Punctuation omitted.) Bradshaw, supra, slip op. at 12. “For
example, the prosecution may establish impecuniousness as a motive for robbery by
showing that the defendant had been threatened for nonpayment of a debt incurred
in a drug transaction.” Beechum, supra, 582 F2d at 912 n.15.
As the Seventh Circuit Court of Appeals has explained in more detail:
“Propensity” evidence and “motive” evidence need not overlap. They do not, for example, when past drug convictions are used to show that the
14 defendant in a robbery case is an addict and his addiction is offered as the motive for the robbery. They do overlap when the crime is motivated by a taste for engaging in that crime or a compulsion to engage in it (an “addiction”), rather than by a desire for pecuniary gain or for some other advantage to which the crime is instrumental in the sense that it would not be committed if the advantage could be obtained as easily by a lawful route. Sex crimes provide a particularly clear example. Most people do not have a taste for sexually molesting children. As between two suspected molesters, then, only one of whom has a history of such molestation, the history establishes a motive that enables the two suspects to be distinguished. But the principle that we are discussing is not limited to sex crimes. A “firebug” - - one who commits arson not for insurance proceeds or revenge or to eliminate a competitor, but for the sheer joy of watching a fire - - is, like the sex criminal, a person whose motive to commit the crime with which he is charged is revealed by his past commission of the same crime. The greater the overlap between propensity and motive, the more careful the district judge must be about admitting under the rubric of motive evidence that the jury is likely to use instead as a basis for inferring the defendant’s propensity, his habitual criminality, even if instructed not to. But the tool for preventing this abuse is Rule 403, not Rule 404(b).
Id. at 556-557.
Here, the State asserts that the “evidence makes clear that the motive for the
instant and the prior crime was to gain money” because “Appellant demanded money
15 from both women.” But “[t]he fact that the accused has committed one kind of crime
in the past does not, without more, prove his motive to commit the same kind of crime
again. Such logic would make all prior robberies admissible in any robbery case, all
prior murders admissible in any murder case, and so on.” Milich, § 11:13 at 318.
“Numerous courts have recognized that evidence of an imminent financial
burden on the defendant is admissible for the purpose of proving motive.” United
States v. Reed, 700 F2d 638, 643 (III) (11th Cir. 1983). In the case before us, the State
presented evidence that Amey had no job and was sleeping on a futon in the living
room of friends at the time of the 2011 charged offense. But in order for the prior
attempted robbery to be relevant to the issue of motive, the State would also have had
to present evidence showing that Amey lacked a job or had some other specific need
for money at the time of the 2008 attempted robbery. The attempted robbery would
then be relevant to show that Amey was willing to commit robbery when he had a
specific need for money. See Bradshaw, supra (“evidence of Ohio murder was
relevant to motive because it demonstrated appellant’s willingness to use violence
when he or someone close to him is cheated in a drug deal”).
Based upon the State’s failure to present evidence of Amey’s impecuniousness
at the time of the prior attempted robbery, we conclude that motive was not a proper
16 purpose for admitting such evidence. As a sister state has recognized, “[t]he general
motive of gaining wealth, which could be the underlying basis for almost any crime,
is not sufficient to establish a motive.” State v. Leday, 97 So3d 501, 506 (La. App.
2012) (concluding evidence of prior robbery inadmissible to show motive in later
robbery case). See also Reed, supra (trial court erred in allowing evidence of
defendant’s past bankruptcy in embezzlement case where there was no showing that
defendant was unable to pay off his debts at the time of the embezzlement).
(c) Opportunity. Professor Millich characterizes opportunity as “probably the
most rarely used purpose of those listed in [Rule] 404 (b). It admits evidence that
relates to the defendant’s specific ability or wherewithal to commit the crime
charged.” (Emphasis supplied.) Milich § 11:13 at 318.
In this case, the prior attempted robbery has no connection to the charged
robbery that took place almost three years later; it therefore did not provide evidence
of Amey’s specific ability to commit the charged crime. Compare United States v.
DeJohn, 638 F2d 1048, 1051-1052 (II) (7th Cir. 1980) (defendant’s prior bad act of
taking a check from an internal YMCA mailbox provided evidence of his opportunity
to take different checks from the same area that he later attempted to cash). While the
State presented evidence showing that Amey was living in close proximity to the
17 location of the charged offense at the time it was committed, it did not present
corresponding evidence of Amey’s proximity in connection with the prior robbery at
the time it was committed almost three years before. Consequently, opportunity was
not a proper ground for admission of the prior robbery evidence.
(d) Harm. Having concluded that none of the reasons identified by the trial
court provided a proper purpose for admission of the prior attempted robbery, we
must now determine whether the trial court’s error in admitting such evidence
requires a new trial. The Supreme Court recently reiterated:
The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict. In determining whether trial court error was harmless, we review the record de novo, and we weigh the evidence as we would expect reasonable jurors to have done so as opposed to viewing it all in the light most favorable to the jury’s verdict.
(Citations and punctuation omitted.) Peoples, supra, 295 Ga. at 55 (4) (c).
Here, we cannot say that it is highly probable that the admission of the prior
attempted robbery did not contribute to the verdict. The evidence against Amey was
not overwhelming. He was not apprehended in the distinctive car immediately after
the robbery, but instead over a day later. None of the victim’s belongings were
18 recovered, and her identification of him was far from certain. At the time of the photo
lineup, the victim knew that the police had stopped a car matching the one involved
in her robbery. She initially stated that he looked “closer to the description than any
other” person in the lineup and asked the detective for information about his height.
Instead of providing the requested information, the detective instructed her to circle
the number associated with Amey’s photograph. At the time of the line-up, she was
only 75% certain that she had identified the robber, and at trial she stated that she
“was more than 50% sure” and that she selected “[t]he one that [she] thought was the
best one that [she] felt was available at the time of the incident.”
As in Usher, supra, the evidence against Amey “was legally sufficient, but not
overwhelming.” 290 Ga. App. at 711-713 (1). Based upon the inherently prejudicial
nature of other crime evidence and the lack of overwhelming evidence against Amey,
we must reverse. Id. Lail, supra, 846 F2d at 1301-1302 (erroneous admission of prior
robbery not harmless).
2. We need not address Amey’s ineffective assistance of counsel claim as it is
rendered moot by our holding in Division 1.
Judgment reversed. Barnes, P. J., and Branch, J., concur.