Quentin Lamar Johnson v. State

• Court: Court of Appeals of Georgia
• Decided: January 8, 2019
• Docket: A18A2016
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, P. J., RICKMAN and MARKLE, 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

January 8, 2019

In the Court of Appeals of Georgia A18A2016. JOHNSON v. THE STATE.

RICKMAN, Judge.

Quentin Johnson was tried and convicted in DeKalb County on one count each

of armed robbery, aggravated assault, and possession of a weapon during the

commission of a felony, all crimes that occurred in that county. He was sentenced to

life in prison. At trial, the State presented evidence that Johnson was involved in a

five-day crime spree that covered three other counties, with incidents in Cobb County

and Fulton County preceding the DeKalb County incident, and additional crimes in

Gwinnett County following the DeKalb County incident. Following the denial of his

amended motion for new trial, Johnson appeals, raising three enumerations of error,

including that the DeKalb County trial court erred by allowing evidence of the crimes

in Cobb County and Fulton County. Finding no error, we affirm. Construed in favor of the verdict, the evidence presented at trial shows that at

about 5:30 p.m. on November 1, 2011, a female victim and her granddaughter were

assaulted at a service station in Cobb County. A black man wearing a black-hooded

jacket, with the hood pulled down over his forehead, approached the victim from

behind as she was getting out of her car and said to “give it up.” The two argued and

started scuffling as the man tried to take the victim’s keys. Eventually, the man put

a gun to the victim’s forehead, snatched her keys, and pushed her to the ground,

breaking the victim’s arm and shoulder. The man also pointed the gun at the victim’s

granddaughter to force her out of the car. The man then drove off in the victim’s

black Chevrolet Cobalt. The victim’s billfold, including identification cards, credit

cards, and cash, was in the vehicle when the man left. A red truck appeared to leave

in coordination with the perpetrator. At the DeKalb trial, the Cobb victim identified

Johnson as the man who assaulted her in Cobb County.

Three days later, at approximately 12:30 a.m. on November 4, a woman driving

a blue 2007 Honda Civic was assaulted at a gas station in Fulton County. As she was

pumping gas, a man with a gun approached from the front as a second man

approached from behind. The gunman pointed the weapon at her head and told her

to “drop the m-fing pump and give up the keys.” She complied. The two men got into

2 her car and left. The victim described the gunman as a black man “smaller than the

other guy,” who was about 5 feet 8 inches tall, and both men were wearing black

hoodies. The victim described the gun as small and black, and she recalled seeing a

black car nearby just prior to the assault. An investigator documented that the Cobb

victim’s black Chevrolet Cobalt had been left at the scene. A fingerprint examination

revealed Johnson’s print on removable items in the Chevrolet and on the exterior of

the car. At the DeKalb trial, the Fulton victim identified Johnson as the man with the

gun who assaulted her in Fulton County.

Less than 12 hours after the Fulton incident, the crime directly at issue in this

case was committed. A woman pumping gas at a DeKalb County gas station had just

started the pump and gotten back into her car to put her credit card away, when she

heard loud music and turned and found a man standing with a gun pointed at her face

from close range. The victim screamed, leaned back in her car, and started kicking the

man. The man yelled at her in a violent tone and fired the gun, but the bullet missed

the victim. The man then grabbed her arm, pulled her out of the car, and got in. The

man rifled through the victim’s belongings; took some, including the victim’s phone,

her Ipod, a business card case with cards inside, and her purse; then exited the

victim’s car and left in what was later determined to be the Fulton victim’s blue

3 Honda Civic. The DeKalb victim described the assailant as black, approximately 5

feet 8 inches tall, and wearing a gray, long-sleeved hooded sweatshirt with the hood

not pulled up. Later, the DeKalb victim identified Johnson from a photo line-up with

80% certainty, and she identified him at trial as her assailant with 100% certainty.

Police recovered a bullet casing from the scene. A BOLO was issued on the blue

Honda Civic.

Two days later at about 9:00 a.m., a Gwinnett officer saw a blue Honda Civic

parked in a cemetery in Gwinnett County with a man sitting inside, pulling up his

hooded jacket. She reported the vehicle’s license tag number to dispatch, approached

the car, and asked to see the man’s driver’s license. The man acted nervous as he

pulled out a stack of cards, including his license, from one pocket. The license

showed that the man was Johnson. The officer noticed a bulge in a different pocket

and suspected that it was a weapon. At about that moment, dispatch advised that the

car had been reported stolen, and a backup officer arrived. The second officer asked

Johnson to step out of the car, and the first officer patted down the bulging pocket

and found a black .22 Beretta handgun. In Johnson’s other pocket the officer found

a business card holder with some business cards inside, an Ipod, a cell phone, and

numerous debit and other cards. One of the debit cards belonged to the Cobb victim.

4 Johnson was arrested by the Gwinnett police and charged with theft by receiving a

stolen motor vehicle and possession of a firearm during the commission of a felony.

The second officer identified Johnson in court as the person arrested in the cemetery.

Johnson pled guilty to the crimes in Gwinnett County.

The bullet casing recovered from the DeKalb County incident was eventually

tested, and it proved to have been fired from the gun recovered from Johnson in

Gwinnett County. As the investigation ensued, law enforcement officers discovered

the connections between the crimes in the four counties, and Johnson was

subsequently arrested and charged in DeKalb County. Prior to trial in the DeKalb

case, the trial court held a hearing to determine the admissibility of the evidence

regarding the Cobb County and Fulton County crimes. The State argued that the Cobb

and Fulton incidents were admissible as intrinsic evidence of the DeKalb crimes or

as proper extrinsic evidence under OCGA § 24-4-404 (b).1 Johnson, acting pro se at

1 OCGA § 24-4-404 (b) provides as follows:

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.

5 the time, argued that the State could not introduce evidence of the other incidents

without making the showings required by OCGA § 24-4-404 (b). The trial court

determined that the evidence was admissible, both as intrinsic evidence and as

extrinsic evidence under OCGA § 24-4-404 (b). At the beginning of trial, Johnson,

then represented by counsel, objected to the evidence of the Cobb and Fulton

incidents.

1. Johnson contends the trial court erred by allowing the State to introduce

evidence in the DeKalb County action of the crimes that occurred in Cobb County

and Fulton County. Evidentiary rulings are reviewed for abuse of discretion. Reeves

v. State, 294 Ga. 673, 676 (2) (755 SE2d 695) (2014). We find no abuse of discretion

because, as shown below, the crimes in Cobb County and Fulton County were

intrinsic to the crimes in DeKalb.

Evidence intrinsic to the charged offense is admissible and not subject to the

limitations and prohibition on “other acts” evidence found in OCGA § 24-4-404 (b).

See Smith v. State, 302 Ga. 717, 725 (4) (808 SE2d 661) (2017); Williams v. State,

342 Ga. App. 564, 566 (1) (804 SE2d 668) (2017). “Evidence is intrinsic ‘if it is (1)

an uncharged offense which arose out of the same transaction or series of transactions

as the charged offense, (2) necessary to complete the story of the crime, or (3)

6 inextricably intertwined with the evidence regarding the charged offense.’” Brooks

v. State, 298 Ga. 722, 726 (2), n.11 (783 SE2d 895) (2016) (quoting United States v.

Utter, 97 F3d 509, 513 (II) (B) (11th Cir. 1996)); see also Williams, 342 Ga. App. at

566 (1). Our Supreme Court has elaborated:

Evidence pertaining to the chain of events explaining the context, motive, and set-up of the crime, is properly admitted if it is linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.

(Citation and punctuation omitted.) Smith, 302 Ga. at 725 (4); see also State v. Battle,

344 Ga. App. 565, 568 (1) (812 SE2d 1) (2018).

In Williams, 342 Ga. App. 564 , this Court held that evidence of a Newton

County carjacking—the second in a three-day, three-carjacking spree—was

admissible intrinsic evidence during the trial of the first and third carjackings, both

of which occurred in Clayton County. Id. at 567 (1). The Court noted that the Newton

County carjacking “established the complete time line of the consecutive carjackings,

and items from the first two carjackings were found in the vehicle stolen in the third

hijacking.” Id. Also, evidence from the third incident tied the defendant to the first

and second incident. Id. Thus, the Court concluded, “the Newton County carjacking

7 was inextricably intertwined with the first and third carjackings.” Id. And in Baughns

v. State, 335 Ga. App. 600 (782 SE2d 494) (2016), this Court held that evidence of

all eleven crimes “committed in a similar way, within a two-week period . . . in the

same area. . . [that] included overlapping participants” were admissible against one

of three defendants who was being tried separately, even though that defendant

directly participated in only six of the eleven crimes. Id. at 603 (1).

Here, Johnson’s fingerprints were found in a car stolen in the Cobb incident

and abandoned in the Fulton incident. Johnson himself was found in Gwinnett County

in a car stolen in the Fulton incident, where the first car was abandoned, and used by

assailants in the DeKalb incident. A small handgun was used in all three assaults, and

the same gun that was recovered from Johnson’s person in Gwinnett County was fired

in the DeKalb incident. Items belonging to the Cobb and DeKalb victims were found

in the car occupied by Johnson in Gwinnett. And the Cobb, Fulton, and DeKalb

incidents occurred in a three-day span.

We therefore conclude that the Cobb County and Fulton County incidents arose

out of the same series of transactions as, and were linked in time and circumstance

with, the DeKalb incident and that evidence from those crimes was inextricably

intertwined with the evidence from the DeKalb incident; the Cobb and Fulton

8 incidents, therefore, were intrinsic to the DeKalb incident. Accordingly, the trial court

did not abuse its discretion by allowing the State to introduce evidence of the Cobb

and Fulton incidents in the DeKalb County action. See Williams, 342 Ga. App. at 567

(1); Baughns, 335 Ga. App. at 603 (1). Given that intrinsic evidence is not subject to

the limitations and prohibition on “other acts” evidence found in OCGA § 24-4-404

(b), see Smith, 302 Ga. at 725 (4), we need not address whether the trial court erred

by concluding that the Cobb and Fulton incidents were also admissible as proper

extrinsic evidence under that Code section.

2. Johnson contends the DeKalb trial court erred by admitting evidence “barred

by the doctrine of collateral estoppel.” Following his arrest in Gwinnett County,

Johnson pled guilty in that county to theft by receiving stolen property, i.e., the blue

Honda Civic. He argues that Georgia law provides that a person cannot be guilty of

both stealing property and theft by receiving the same property. See Bonner v. State,

339 Ga. App. 539, 545 (794 SE2d 186) (2016) (conviction of theft by receiving

“contains an implicit and necessary finding that [the defendant] was not the individual

who stole the car”). He therefore contends that the DeKalb trial court was required

to exclude any evidence that he stole the blue Honda Civic.

9 But as we already held during Johnson’s earlier appeal of a related issue, the

charges against Johnson in DeKalb County—armed robbery, aggravated assault, and

possession of a weapon during the commission of a crime—did not require proof that

Johnson stole the Honda Civic. Thus the DeKalb jury was not asked to readjudicate

whether Johnson stole that vehicle. See generally Malloy v. State, 293 Ga. 350, 354

(2) (a) (744 SE2d 778) (2013) (“The doctrine of collateral estoppel precludes the

readjudication of an issue of law or fact already adjudicated between the parties or

their privies, where that issue is essential to the judgment.”) (citation and punctuation

omitted). Accordingly, the DeKalb court was not required to exclude evidence

suggesting that Johnson stole the blue Honda Civic in Fulton County. See, e.g.,

Bradley v. British Fitting Grp., 221 Ga. App. 621, 623 (2) (472 SE2d 146) (1996) (no

collateral estoppel where issue decided in the previous action is not at issue in second

action); see also Vanderpool v. State, 244 Ga. App. 804, 807 (3) (536 SE2d 821)

(2000) (“The application of collateral estoppel requires an examination of what facts

were in issue and necessarily resolved in the defendant’s favor at the first trial.”)

(citation and punctuation omitted). We therefore find no abuse of discretion by the

trial court.

10 3. Finally, Johnson contends the trial court erred by allowing the Cobb County

victim to identify Johnson during the DeKalb County trial as the person who

assaulted her. He argues that the State’s actions in preparing her for her testimony

were so impermissibly suggestive that her in-court identification of Johnson as her

assailant should not have been allowed. Because Johnson failed to object to the

admissibility of the Cobb victim’s in-court identification, the argument is deemed

waived. See Partlow v. State, 346 Ga. App. 473, 485 (5) n.48 (816 SE2d 474) (2018).

And, as discussed below, we find no plain error. See Patch v. State, 337 Ga. App.

233, 242 (2) (786 SE2d 882) (2016) (applying plain error analysis where defendant

failed to object to identification testimony).

There is a four-factor test for plain error:

First, there must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously

11 affects the fairness, integrity or public reputation of judicial proceedings.

State v. Nicholson, 321 Ga. App. 314, 317 (1) (739 SE2d 145) (2013) (quoting State

v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011).

At the DeKalb trial, during her direct testimony, the Cobb victim was asked if

she could identify her assailant. She replied that she could, and she identified

Johnson. She testified that she was able to identify him because he favored her

nephew. She could not recall, however, whether Johnson had facial hair at the time

of the incident because “[h]e had on a jacket, so I really didn’t pay that no attention.”

And, she testified that at the time of the incident, the assailant had his hood pulled

down over his forehead.

On cross-examination, the victim testified that during the DeKalb trial but prior

to her testimony, the State’s attorneys had her look into court through a courtroom-

door window to see whether she could identify the defendant. She replied that she

could not do so because she could only see the back of his head; but she thought she

would be able to identify him as the assailant if she could see his face. She also

admitted that she knew that the accused would be sitting at the defense table and that

Johnson’s lawyer, the only other person sitting there, did not commit the crime.

12 Finally, there was conflicting testimony about whether the Cobb victim ever

identified Johnson during a pre-trial photo lineup. The Cobb victim testified that she

did, but an officer testified that she did not, and evidence was introduced in support

of the officer’s testimony.

Absent any taint arising from an improper pre-trial identification, the validity

of in-court identifications are determined by “the same rules of evidence, witness

credibility, and cross-examination as all testimony in a criminal trial.” Ralston v.

State, 251 Ga. 682, 683 (2) (309 SE2d 135) (1983); see also Ivey v. State, 277 Ga.

875, 877 (4) (b) (596 SE2d 612) (2004) (same); Curry v. State, _ Ga. App. _ (3) (820

SE2d 177) (2018) (same).2 Here, the Cobb victim was cross-examined extensively

about her in-court identification and the surrounding circumstances. Thus, there was

no deviation from a legal rule, and we therefore find no plain error.

And even if we were to assume that the Cobb victim did, in fact, identify

Johnson in a pre-trial photo lineup, we still find no plain error. “Convictions based

on eyewitness identification at trial following a pretrial identification by photograph

2 Compare Ralston, 251 Ga. at 683 (2) (“Because pretrial identification procedures occur beyond the immediate supervision of the court, the likelihood of misidentification in such cases increases, and courts have required that pretrial identification procedures comport with certain minimum constitutional requirements in order to insure fairness.”).

13 will be set aside only if the photographic identification procedure was so

impermissibly suggestive as to give rise to a very substantial likelihood of irreparable

misidentification.” (Citations and punctuation omitted.) Marshall v. State, 285 Ga.

351, 352 (2) (676 SE2d 201) (2009). No such showing has been made. “Moreover,

even if a pretrial identification is tainted, an in-court identification is not

constitutionally inadmissible if it does not depend upon the prior identification but

has an independent origin.” (Citations and punctuation omitted.) Wilson v. State, 275

Ga. 53, 59 (3) (562 SE2d 164) (2002). Here, the Cobb victim’s identification was

based, at least in part, on Johnson’s resemblance to one of her family members. Any

issue of the Cobb victim’s credibility in that regard, was for the jury.

Judgment affirmed. McFadden, P. J., and Markle, J., concur.