Albright v. State

354 Ga.App. 538

841 S.E.2d 171

ALBRIGHT

v.The STATE.

A19A2022

Court of Appeals of Georgia.

March 13, 2020

Cara Clark, for Appellant.

Sharon Lee Hopkins ADA, Duluth, Darius T. Pattillo, for Appellee.

Hodges, Judge.

Following a jury trial, Kerry Albright was convicted of two counts of armed robbery and one count of possession of an illegal weapon.¹ He appeals from the trial court’s denial of his amended motion for new trial, arguing that the trial court erred in (1) admitting cell phone location data and related expert testimony; (2) rejecting his Batson challenge to the State’s peremptory jury strikes; and (3) admitting other acts evidence. He additionally contends that his trial counsel rendered ineffective assistance. We find no reversible error.

Viewed in the light most favorable to the verdict, see Cooper v. State , 306 Ga. 547, 549, 832 S.E.2d 382 (2019), the record shows that on March 7, March 9, and April 3, 2013, three Dollar General stores in Henry County were robbed at gunpoint. The robberies had similar modus operandi. Two or three masked black men with guns entered the stores near closing time, locked the door behind them, held the employees and customers hostage, emptied cash drawers and safes into a bag, took the victims’ phones and wallets, and left.

During the last robbery, a customer attempting to open the store’s locked door saw an employee who appeared to be in distress and called the police. The robbers had left the store by the time police arrived, but one victim saw a gold SUV driving by, recognized it as belonging to the robbers, and called out to police, "that’s him, that’s him."

Police gave chase for approximately 10 miles, but the SUV did not stop even when officers activated their blue lights. The SUV, which was a gold GMC Envoy, then crashed into a tree. By the time police approached the vehicle, the occupants had fled, leaving the driver’s side door ajar and only a strong odor of burnt marijuana behind. Officers were unable to track whoever was in the vehicle.

Around this time, police received a call from Chaunya Albright reporting that her GMC Envoy had been stolen. When asked when the theft occurred, she first told the police 11 a.m., then said 10 p.m. She told police that she left her keys in the vehicle, but refused to cooperate when police tried to verify whether the vehicle had been stolen or merely loaned out. An officer went to her house and realized that the stolen Envoy matched the description of the Envoy involved in the armed robberies. While the officer was talking to her, her cell phone kept ringing. She told the officer that she did not know who the caller was, and gave the phone to the officer. The caller, a male, refused to identify himself but asked to speak to his wife. At trial, Chaunya Albright testified that the caller was her then-husband, Kerry Albright, who kept asking why police were harassing them.

The officer noted the number that the call was coming from, and tracked it to Albright’s girlfriend, Regina Gipson. The police began an investigation, submitted a probable cause affidavit, and got court orders to retrieve phone call data records related to the Albrights’ phones and Gipson’s phone. Police also got an arrest warrant for the armed robberies. An officer then used a software program called PenLink, as well as Google Earth, to plot mobile tower locations and identify which towers were near the location of the phone Albright was using, near the three Dollar Generals and during the high-speed chase.

Several months after the robberies, in July 2013, an officer who knew about the outstanding arrest warrants for the robberies recognized Albright driving the Envoy and arrested him. Following his conviction, Albright filed the instant appeal. He does not contest the sufficiency of the evidence.

1. Albright first contends that the trial court erred in admitting the cell site location information ("CSLI") compiled by the police, and related testimony. In connection with this contention, Albright additionally argues that his trial counsel rendered ineffective assistance. We disagree.

The admission of evidence rests within the trial court’s sound discretion, and will not be disturbed on appeal absent an abuse of that discretion. Horton v. State , 269 Ga. App. 407, 409 (1), 604 S.E.2d 273 (2004).

(a) Albright first argues that the CSLI should have been suppressed under the Fourth Amendment. This argument has been waived.

The record shows that Albright’s counsel first raised what she called something "akin to a motion to suppress" three days after the trial had started. Her argument, however, focused almost exclusively on whether the facts presented by law enforcement were sufficient to justify the court orders used to get CSLI records from cell phone companies. Albright’s counsel stated that she was raising this challenge even though she had no knowledge of what information various judges had received before signing the orders. The State pointed out that Albright’s lawyer had had copies of the orders since 2014 or 2015, several years before the 2017 trial, and trial counsel acknowledged this.

The trial court then heard testimony from law enforcement officers about, as Albright’s trial counsel characterized it, "the issue of whether there [were] ... reasonable articulable facts presented to the judges in order to get those orders signed." Prior to and during this testimony, the trial court twice asked Albright’s counsel if she was raising a Fourth Amendment argument, as opposed to arguing only that the facts underlying the orders were insufficient. Counsel specifically told the trial court she was not raising constitutional challenges. In one instance, after the State raised the issue of the Fourth Amendment, the trial court said, "I don’t understand that [Albright is] claiming any constitutional violation, [he is] claiming that the statute requiring [a factual] showing before the issuance of the court order/subpoena was not made. Is that right Ms. Lewis [Albright’s trial counsel]?" To which trial counsel responded, "That’s correct , Your Honor." (Emphasis supplied.) The trial court then found that the facts presented in seeking the orders were specific and articulable enough to show that the records sought were relevant and material to the ongoing investigation.

On appeal, however, Albright appears to argue both that cell phone data was illegally seized pursuant to the Fourth Amendment because he had a reasonable expectation of privacy in that data, and that his counsel really was objecting to a warrantless search. Albright points to a single sentence, when counsel first raised the issue of the possible insufficiency of facts underlying the orders, in which counsel told the trial court that she "would like to have a motion on the admissibility of those records because we do not have a search warrant and I have an argument that there was no probable cause for any kind of order to be granted ...." (Emphasis supplied.)

As the State contends, and as the trial court found, to the extent that Aldridge attempted to make a motion to suppress, it was neither timely nor in writing, and it did not state facts indicating that the search and seizure violated his constitutional rights. See Gonzalez v. State , 334 Ga. App. 706, 708-709 (1), 780 S.E.2d 383 (2015) (Pursuant to OCGA § 17-7-110 and Uniform Superior Court Rule 31.1, a motion to suppress must be filed within 10 days of defendant’s arraignment, unless the trial court extends the time for filing; OCGA § 17-5-30 mandates that a motion to suppress must be in writing and state facts showing the search and seizure was unlawful). When the trial court pointed this out at trial, Aldridge’s counsel agreed that this was the standard for a motion to suppress and conceded that no such written motion had been filed. As a result, the trial court found that Aldridge had waived any motion to suppress.

Oral motions [to suppress] are not authorized. Moreover, this Court has held that a motion to suppress must be filed before trial to effectuate its purpose of avoiding the interruption of trial. Because [Aldridge] failed to timely interpose a proper motion to suppress, and because he did not offer at trial an explanation for this failure, he waived the right to challenge the admissibility of the evidence on this ground.

(Citations omitted.) Belcher v. State , 230 Ga. App. 235, 236 (1), 496 S.E.2d 306 (1998).² Failure to file a timely motion to suppress waives even constitutional errors. Gonzalez , 334 Ga. App. at 708 (1), 780 S.E.2d 383. We find no error.

Albright also contends that the trial court erred in admitting the CSLI because of the United States Supreme Court’s opinion in Carpenter v. United States , ––– U.S. ––––, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018). Carpenter found that when CSLI is acquired pursuant to a search, the government "must generally obtain a warrant supported by probable cause" prior to getting the cell phone location data. Id. at 2221 (IV). Carpenter was decided a year after Albright was convicted, but certiorari had been granted in Carpenter just days before Albright’s trial began. Albright argues that because Carpenter was in the "pipeline" when his case was not yet final, the trial court erred in admitting the CSLI data. See generally Freeman v. State , 269 Ga. 337, 339 (1) (c), 496 S.E.2d 716 (1998) (defining the appellate pipeline as including cases poised "between conviction and direct appeal").

However, as outlined above, trial counsel specifically acknowledged that she filed no motion to suppress, and she disclaimed raising any constitutional argument on this point. When the State attempted to present CSLI evidence from several cell phones, trial counsel did initially object. When the State limited that evidence only to what was taken from one particular cell phone, Albright’s counsel said, "If it is limited to documents now being presented with [a particular witness], then I have no objection ." (Emphasis...