White v. State

726 S.E.2d 548, 315 Ga. App. 54, 2012 Fulton County D. Rep. 1175, 2012 Ga. App. LEXIS 312
Court of Appeals of Georgia·Decided March 21, 2012·No. A11A2323, A11A2324·Published·Cited by 12 cases

Opinions

PHIPPS, Presiding Judge.

After a joint jury trial, Lloyd White and his sister Capucine White were convicted of armed robbery. In Case No. A11A2323, Lloyd White contends that the trial court erred by admitting evidence and by making certain remarks in the jury’s presence. In Case No. A11A2324, Capucine White challenges the admission of evidence, the sufficiency of the evidence, and the denial of her motion to sever her trial. Because neither appellant has demonstrated reversible error, their convictions are affirmed.

The state’s evidence showed that around midnight on September 25,2007, a masked gunman and two unmasked women — all dressed in black clothing — broke into an apartment and demanded money from the occupants. The occupants complied with the intruders’ demands, and within five minutes after bursting through the door, the three intruders fled the apartment with money and a money order that belonged to the occupants.

During the heist, one of the apartment occupants had heard the gunman refer to one of his cohorts as “Davisha”; two of the occupants had recognized one of the intruders as an individual named “Davisha”; and one of those two knew further where Davisha worked and thus reported Davisha’s identification and participation in the heist to police.

Within weeks of the robbery, police had arrested and interviewed the person named Davisha. Although Davisha gave varying accounts [55] of the evening in question, in one account she identified Lloyd White as the masked gunman, and she stated that Capucine White had traveled to the apartment with them, but had waited outside. Davisha was thereafter co-indicted for armed robbery with Lloyd White and Capucine White, but entered a guilty plea to a reduced charge of robbery. As part of her plea deal, as she would later recount at trial, Davisha agreed to appear at her co-indictees’ joint trial as a state’s witness and “[t]o testify truthfully.”

Davisha’s trial testimony continued as follows. At the time of the underlying criminal incident, Capucine White was her girlfriend, and Lloyd White was her close friend. Earlier on the night in question, at the townhouse in which she (Davisha) lived, she, Lloyd White, Capucine White, and two other individuals plotted to go to a specific apartment and rob the occupants. The five discussed wearing black clothing and using a handgun. Accordingly, the five of them then rode to the identified apartment. And while Capucine White and another individual stayed in the car, she, Lloyd White (as the masked gunman) and a third person went inside. After robbing the occupants at gunpoint, the five of them returned to her (Davisha’s) townhouse.

The state also presented as a trial witness Davisha’s younger sister, who was 15 years old at the time of the trial. At the time of the criminal incident, she was 13 years old and living in the same residence as Davisha. The sister had been interviewed by police shortly after Davisha was interviewed. And at trial, Davisha’s younger sister gave testimony that, consistent with Davisha’s trial testimony, implicated Lloyd White and Capucine White in committing armed robbery at the apartment.

In particular, Davisha’s younger sister testified that on the night in question, she was at their townhouse, along with Davisha, Lloyd White, Capucine White, and two others. At about 9:30 p.m., those five individuals discussed money, planned a robbery, and designated an apartment. The five thereafter left the townhouse in a car together; they were wearing black clothing; and Lloyd was carrying a face mask and a handgun. At about midnight, the five returned together to the townhouse, and money was divided amongst three of the five: Lloyd White, Capucine White, and another individual. Davisha, however, had not taken any of the money being divided.

As a similar transaction to show Lloyd White’s bent of mind and course of conduct, the state presented evidence that, in September 2006, Lloyd White was one of two individuals, both dressed in black clothing, who snatched a woman’s purse out of a shopping buggy the woman was pushing in a store. The two individuals ran out of the store. Within about ten minutes, police had apprehended a fleeing suspect, Lloyd White, whom the shopper identified at the scene as one [56] of the two individuals who had accosted her.

Neither Capucine White nor Lloyd White testified. Capucine White presented no witnesses; Lloyd White called two. His mother testified that, from about 7:00 until 9:00 on the night in question, she and Lloyd White were at a Bible study class. And a former co-worker of Lloyd White testified that, at about 10:00 on the night in question, Lloyd White briefly stopped by their place of employment. Neither of Lloyd White’s witnesses, however, accounted for his whereabouts thereafter.

Case No. A11A2323

1. Lloyd White contends that the trial court erred by allowing Davisha to testify, asserting, “It was well known to all parties, including the court itself, that Davisha... had credibility problems.” Lloyd White points out that, during Davisha’s guilty plea hearing held before the same trial judge about six months prior to his trial, both the judge and prosecuting attorney expressed concern that portions of Davisha’s account appeared untruthful and crafted to protect Capucine White. Moreover, Lloyd White points out that at his trial, Davisha testified that she had given false accounts about the night of the robbery — during her guilty plea proceeding and during her police interviews. He argues that the trial court therefore allowed the state to knowingly use false testimony to convict him, and his conviction should be reversed because his constitutional rights were violated.

Lloyd White cites Cammon v. State1 for the principle: “Conviction of a crime following a trial in which perjured testimony on a material point is knowingly used by the prosecution is an infringement of the accused’s Fifth and Fourteenth Amendment rights to due process of law.”2 That principle, however, does not provide for a reversal in this case. Lloyd White has not shown that the prosecution knowingly used perjured testimony on a material point. While he has shown that Davisha gave inconsistent accounts of the night in question, as Cammon further recognized, “[t]here is no constitutional requirement that the witnesses upon whom the State relies to prove its case must give consistent evidence.”3 The fact that a witness’s trial testimony and that witness’s prior account(s) “may have been inconsistent does not render her incompetent to testify, but goes to her [57] credibility as a witness.”4

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White v. State, 726 S.E.2d 548, 315 Ga. App. 54, 2012 Fulton County D. Rep. 1175, 2012 Ga. App. LEXIS 312 (Ga. Ct. App. 2012).

726 S.E.2d 548 (White v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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White v. State
726 S.E.2d 548 (Court of Appeals of Georgia, 2012)