State v. Mojica

730 S.E.2d 94, 316 Ga. App. 619, 2012 Fulton County D. Rep. 2432, 2012 WL 2580801, 2012 Ga. App. LEXIS 622
CourtCourt of Appeals of Georgia
DecidedJuly 5, 2012
DocketA12A0252
StatusPublished
Cited by7 cases

This text of 730 S.E.2d 94 (State v. Mojica) 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
State v. Mojica, 730 S.E.2d 94, 316 Ga. App. 619, 2012 Fulton County D. Rep. 2432, 2012 WL 2580801, 2012 Ga. App. LEXIS 622 (Ga. Ct. App. 2012).

Opinion

MlKELL, Presiding Judge.

Norberto Mojica was indicted on the charges of kidnapping with bodily injury, robbery by force, aggravated assault, and two counts of aggravated battery for the workplace assault of Dana Raissian. After three mistrials, the trial court granted Mojica’s third motion to reconsider the denial of his motion to suppress identification on constitutional grounds and suppressed the identification. Pursuant to OCGA § 5-7-1 (a) (4), the state appeals. Finding no error, we affirm.

When reviewing the denial of a motion to suppress, three rules apply:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe [620]*620the evidence most favorably to the upholding of the trial court’s findings and judgment. Because there was testimonial evidence in this case, we do not apply a de novo standard of review.1

The evidence adduced at the motions hearings and the three trials2 shows that Raissian was working after hours in her office when she noticed Mojica, an employee of the office building’s cleaning service, walk through her office to reach a filing area behind that office. Later that evening, as Raissian walked down the hall from her office to the printer, she was startled to see the same man in her peripheral vision, but then calmed down once she recognized him as a cleaner. As she turned to look back, the man told her “I need you to cooperate with me” and dragged her into a dark office where she was choked until she passed out.

When she regained consciousness, Raissian was back in her own office. She had been badly beaten: her left scapula was broken, her jaw was broken in two places, teeth were missing, her ear was ripped, and she had a subarachnoid hemorrhage in her brain.

Office building Security Officers Phillip Walker, Brent Reid and Antonio Berrian were the first to reach the victim and began to question her about the attack. Raissian described her attacker as a tall, Hispanic male with a moustache and broad shoulders, wearing an apron. She indicated that it was the same person who cleaned her floors earlier that evening.

Atlanta Police Department Officer Drew Behry then arrived on the scene. The building cleaning crew supervisor, Gloria Pascoe, was present when Officer Behry questioned Raissian. Pascoe did not hear all of Raissian’s description, but after hearing that the attacker was cleaning near Raissian’s office, she went downstairs to retrieve Mojica’s worker identification badge and gave it to Officer Behry. Raissian was placed on a gurney by EMT personnel, and, as she was waiting by the elevators to leave, Officer Behry showed the identification badge to Raissian and asked her if she recognized the person as her attacker. Raissian said it was and that she recognized him as the man who cleaned her floor earlier.

Pascoe ordered all Hispanic male cleaners to remain at work for questioning that evening, but Mojica left with his girlfriend, who [621]*621testified at trial that he made her leave with him and their young child and go to Chicago that evening to avoid arrest.

There have been three jury trials in this case, each resulting in a mistrial. Before the first jury trial, the first trial judge, in the Fulton County Superior Court, denied a motion to suppress Raissian’s identification of Mojica’s identification badge. The first judge presided over the first two mistrials. Before the third trial, the first judge denied reconsideration of the motion to suppress and another judge was brought in to preside over the third trial of the case, which also resulted in a mistrial. A second motion to reconsider the denial of the motion to suppress was denied by the second judge prior to the third jury trial. After the third trial, the first judge, now acting in senior status, granted Mojica’s third motion to reconsider the denial of the motion to suppress, holding that additional evidence presented during the three trials convinced her that the identification was imper-missibly suggestive.

1. In its second enumeration of error, the state argues that the trial court erred in finding that Raissian’s identification of Mojica by only looking at his worker identification badge was impermissibly suggestive and in granting Mojica’s third motion for reconsideration. We disagree.

Assuming that Raissian’s identification of Mojica’s worker identification badge was impermissibly suggestive,3 the issue is whether, under “the totality of the circumstances, there was a substantial likelihood of irreparable misidentification.”4 To evaluate that likelihood, we consider the following factors: “(1) the witness’ opportunity to view the criminal during the crime; (2) the witness’ degree of attention; (3) the accuracy of any prior description given by the witness; and (4) the length of time between the crime and the showup confrontation.”5 Further, as stated above, “in evaluating these factors, the trial court is the trier of fact and must judge the credibility of the witnesses and the weight and conflict in the evidence. Where [622]*622evidence supports the trial court’s ruling, we will not disturb that ruling.”6

Because Raissian’s testimony that she had the opportunity to see her attacker in the lighted hallway prior to her attack conflicts with testimony from responding officers who interviewed her directly after the attack when she said that she had been grabbed from behind; because Raissian did not have the opportunity to see her attacker during the assault since they were in a darkened office and her attention was focused on her own survival; because the ER physician who treated Raissian testified that the injury to her brain could have caused memory loss; and because several cleaners working at the building that evening fit Raissian’s description of a tall, broad-shouldered Hispanic male, we cannot conclude that the trial court erred in ruling that there was a substantial likelihood of misidenti-fication. Accordingly, we conclude that the trial court did not err in granting the motion to suppress.7

2. In its first enumeration of error, the state argues that the trial court erred in considering Mojica’s third motion for reconsideration because it was untimely filed and out of term.

(a) The state does not contest that Mojica’s original motion to suppress was timely filed, arguing instead that the trial court erred in considering Mojica’s second and third motions for reconsideration because they were filed outside the time period proscribed by OCGA § 17-7-110. OCGA § 17-7-110

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Cite This Page — Counsel Stack

Bluebook (online)
730 S.E.2d 94, 316 Ga. App. 619, 2012 Fulton County D. Rep. 2432, 2012 WL 2580801, 2012 Ga. App. LEXIS 622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mojica-gactapp-2012.