Donald v. State

11 FCDR 3376

312 Ga.App. 222

718 S.E.2d 81

DONALD

v.The STATE.

No. A11A1438.

Court of Appeals of Georgia.

Oct. 21, 2011.

Brandon Lewis, Norcross, for appellant.

Tracy Graham–Lawson, Dist. Atty., Billy J. Dixon, Asst. Dist. Atty., for appellee.

DOYLE, Judge.

Marquet Sherman Donald was charged with one count of burglary, three counts of armed robbery, three counts of aggravated assault, four counts of possession of a firearm during the commission of a crime, three counts of false imprisonment, two counts of aggravated assault on a police officer, and one count of theft by taking. A Clayton County jury found him not guilty of the two counts of aggravated assault on a police officer, not guilty of one count of aggravated assault, and guilty of the remaining charges. Donald appeals following the denial of his motion for new trial, arguing that (1) the evidence was insufficient to support his conviction beyond a reasonable doubt; (2) the trial court erred by admitting hearsay evidence; (3) the trial court erred by admitting identification evidence for which there was no foundation; and (4) he received ineffective assistance of counsel. We affirm, for reasons that follow.

When reviewing a challenge to the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld. ¹

So viewed, the record shows that on July 3, 2008, Sherada Thompson, Justin Jones, and Cheryl Alphabet were working the night shift at a fast food restaurant in Clayton County and preparing to close for the night. At approximately 1:30 a.m., Jones exited the restaurant through the rear emergency door, dumped out a bucket of mop water, and went back inside the restaurant without fully latching the door. Thompson heard “a big bang” coming from the back of the restaurant, and when she and Jones went to investigate the sound, they found Alphabet lying on the floor. Standing in the rear of the restaurant was a man wearing a black ski mask, gloves, and sunglasses and holding a gun. The man forced Jones into the restaurant's office and closed the door. Using his cell phone, Jones quickly called his brother, Allen, and told him that the restaurant was being robbed.

Meanwhile, the gunman ordered Thompson and Alphabet to the front of the restaurant, where he ordered Alphabet to retrieve money from the cash registers and put it into trash bags. Next, the gunman forced Thompson and Alphabet into the walk-in cooler and forced Jones into the freezer. After another five or ten minutes, the gunman transferred Thompson and then Alphabet from the cooler into the freezer with Jones, demanding the women's cell phones and commenting that Alphabet had a new phone. The gunman then pointed his weapon at Alphabet's face and demanded the keys to her red Pontiac Sunfire, which was parked outside the restaurant, after which he forced her to exit the freezer. After a few minutes, Thompson heard “tussling and ruffling around,” and Jones heard a slam, Alphabet scream, and then a gunshot. Ten to fifteen minutes later, Thompson and Jones exited the freezer, by which time the police had already arrived.

Meanwhile, when Jones's brothers, Allen and Edward, received the call from Jones regarding the robbery, they sped to the restaurant, which was a short distance from their location. While en route, they called 911 and advised the police about the robbery. When they arrived, they observed a man behind the restaurant sitting in a car with a door open. The brothers asked the man where Jones and Alphabet were, and he responded that the restaurant was closed. When the brothers told the man that Jones had called and reported the robbery, he said, “[H]old on for a minute, the store is closed, they'll be out in short, they'll be out shortly.” As Edward jumped out of the car and approached him, the man “reach[ed] for something, like he was going to pull something out.” Before he was able to retrieve the item, police arrived on the scene, and the man sped away in his car.

When Officer John Ivey arrived at the restaurant, he saw a red Pontiac Sunfire accelerate and exit the parking lot. Ivey saw Allen, Edward, and the other occupants of their car yelling and pointing at the Pontiac, saying “that was the guy.” Police entered the restaurant and found Alphabet, who was struggling for breath and bleeding from gunshot wounds to her head and arm.

Meanwhile, Sergeant John Stephens pursued the Pontiac behind a grocery store, where he observed the driver jump out of the car while it was in motion; the driver had a bag in his hand, which he dropped when the car door knocked him down. The suspect eluded Stephens and ran toward the woods, where he then ran directly in front of Officer Matt Whitton's patrol car. Whitton chased after him on foot until the suspect dropped to the ground in a ditch below the officer. Whitton identified himself as a police officer, advised the suspect that he was under arrest, drew his gun, and approached the suspect. The suspect then grabbed the barrel of the officer's gun, and with Whitton's finger on the trigger, the gun discharged, hitting the officer in the arm. As the two men continued to fight, the suspect attempted to manually chamber another round, but was unsuccessful. Whitton was finally able to wrestle the gun from the suspect, who ran off, and Whitton called for assistance from his patrol car.

Additional police responded to the scene, and a K–9 unit began searching for the suspect. The K–9 dog quickly located a cell phone, a tactical flashlight, and two shirts—a dark one and a lighter one—which appeared to have been removed simultaneously, and another white shirt, which was covered with blood. Police also recovered a white plastic trash bag containing money and a pink bandana behind the grocery store, and they found a gun and gloves in the car abandoned by the suspect. After Donald turned himself in later that day, police took swabs of the “vast amount of dried blood” found on his chest, neck, and fingernails, which blood the crime lab later determined matched Whitton's DNA.

At trial, Thompson testified that during the robbery she told Alphabet that she thought Donald was the perpetrator, based on the shape of his head, which she described as “distinct,” the shape of his eyes, his voice, and the fact that he knew that Alphabet had a new cell phone. Donald had previously worked with Thompson at the restaurant, but was fired after an altercation with a co-worker approximately five days before the robbery; after his termination, Donald told Thompson that he was mad and that he was “trying to do something to [the general manager because] ... he just felt the grounds of him getting fired wasn't right [sic].” Thompson also identified Donald at trial as the assailant.

During his testimony, Jones identified Donald as the perpetrator based on Donald's build and his “little funny shape[d] head, a little egg head.” Jones's brothers, Allen and Edward, identified Donald from a photographic lineup and at trial as the man they encountered outside the restaurant. Finally, Whitton identified Donald in a photographic lineup and at trial as the man he chased and with whom he struggled.

Donald's girlfriend, Heather Shaw, testified that Donald was with her at her house around midnight on the night of the robbery; her house is located within walking distance of the restaurant. Donald left her house and returned the next morning wearing only pants and no shirt. Shaw testified that Donald told her that he shot Alphabet, “but he didn't mean to do it.” Ricky Gousha, Donald's friend from high school, testified that Donald called him at 7:00 the morning after the robbery and asked him to say that Donald was at his house the night of the robbery, but Gousha refused.

At trial, Donald testified that he was fired from the restaurant after he got into an altercation with a male co-worker, during which he pushed the co-worker and Alphabet, who was also working at the time. Donald admitted that he was “angry” following his termination, but denied that he plotted revenge or retaliation. Donald denied committing the robbery, suggesting instead that he “was set up” by another fired employee. Donald testified that his own blood was on his chest and hands when he turned himself in, stating that his girlfriend hit him on his chest and hands the night of the robbery with “a rugged stick” after she became jealous. When asked to explain why the blood matched Whitton's DNA, Donald replied, “that's a phony.” Finally, Donald admitted that the gun the police recovered from the red Pontiac after the robbery looked like a gun that he owned, but explained that he had been storing his gun in a storage shed at the restaurant.

The jury found Donald not guilty of the two counts of aggravated assault against Whitton, not guilty of one count of aggravated assault against Jones, and guilty of the remaining charges. Donald's subsequent motion for new trial was denied, and this appeal followed.

1. Donald argues that the evidence was insufficient to support his convictions. We disagree.

The evidence, including the testimony of Jones, Thompson, Jones's brothers, Shaw, Whitton, and the other police officers, as well as items recovered from the path of Donald's flight from police was sufficient to support his convictions. Donald's challenge to the sufficiency of the evidence is without merit.²

2. Donald contends that the trial court erred by permitting Ivey to testify, over objection, that Thompson told him she...