Thomas v. State

355 Ga.App. 111

843 S.E.2d 1

THOMAS

v.The STATE.

A20A0094

Court of Appeals of Georgia.

May 5, 2020

Thomas Scott Clegg, for Appellant.

Daniel J. Porter, District Attorney, Samuel R. d'Entremont, Marlene S. Zekser, Assistant District Attorneys, for appellee.

Barnes, Presiding Judge.

Following a jury trial, Darren Thomas was convicted in Gwinnett County Superior Court of two counts of aggravated assault and a single count each of armed robbery, kidnapping, possession of a firearm during the commission of a felony, and entering an automobile with intent to commit theft. Thomas now appeals from the denial of his motion for a new trial, arguing that the trial court erred in denying his motion to suppress the victim's out-of-court identification of him as the perpetrator. Additionally, Thomas contends that during the hearing on his motion to suppress, the trial court violated his right against compelled self-incrimination, as guaranteed by the Georgia Constitution. Thomas further asserts that the trial court erred in denying both his motion for a directed verdict on the charge of kidnapping and his motion for a mistrial. For reasons explained more fully below, we find no error and affirm.

"On appeal from a criminal conviction, the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury's guilty verdict." (Citation and punctuation omitted.) Maddox v. State , 346 Ga. App. 674, 675, 816 S.E.2d 796 (2018). So viewed, the record shows that in the early morning hours of October 16, 2016, the victim, a cab driver, drove a passenger to an apartment complex in Gwinnett County. When they arrived at the complex, the passenger needed to retrieve money from his apartment to pay the fare. The cab driver followed the passenger to his apartment, leaving his cab unlocked and with the motor running. As he stood just outside of the passenger's apartment, the driver turned around to check on his cab and saw a man standing next to a now-open door of the vehicle. When the driver approached the man and asked what he was doing, the man responded by pointing a gun at the driver and forcing him to walk back to the passenger's apartment and then into the apartment. Once inside the apartment, the gunman frisked the passenger and demanded money from both the driver and passenger. When the driver responded that they had no money, the gunman hit him in the face with the weapon, took an iPhone from the driver, and left the apartment. Shortly thereafter, the driver returned to his cab and discovered that he was missing approximately $170 in cash, which had been in the cab when he left it.

As the cab driver was driving out of the apartment complex, a car driven by his assailant passed him. The cab driver followed the vehicle and, while doing so, called 911. Eventually, the robber lost control of his vehicle and crashed, at which point he abandoned the vehicle and fled on foot. The cab driver waited at the scene for police, and then reported the circumstances leading to the accident, including the robbery and assault. Inside of the wrecked vehicle, the responding officer located a Samsung mobile phone that the cab driver identified as having been taken from his cab.

A check of the license plate on the assailant's vehicle showed that the car was registered to Thomas. Police impounded the car, and the case was assigned to a robbery detective with the Gwinnett County Police Department. Given that the assailant's car was registered to Thomas, the detective put together a photographic lineup of six pictures, including a mug shot of Thomas the officer pulled from police files. The cab driver was unable to identify anyone from the initial photographic lineup, in which all of the photos were of men with short hair. The detective subsequently interviewed the cab driver and learned that his assailant had dreadlocks. Following that interview, the detective obtained a copy of Thomas's driver's license photo, which showed him with dreadlocks. Police then put together a second six-photographic lineup, featuring Thomas's driver's license picture. From this lineup, the cab driver identified Thomas with 90% certainty as his assailant.

Following the police investigation, Thomas was indicted in May 2017 for the crimes at issue.¹ In September 2017, before the case went to trial, police showed the cab driver a third photographic lineup. This lineup again contained pictures of men with dreadlocks, but all the photographs were in color. Thomas's photograph, which was identical to the photograph in the second lineup, was the only one repeated from the second lineup. Additionally, Thomas's photograph was the only one that appeared in all three lineups.

Prior to trial, Thomas moved to suppress the cab driver's identification of him in the second and third photographic lineups. Additionally, given what he alleged was the impermissibly suggestive nature of the second and third lineups, Thomas asked that the court suppress any in-court identification of him by the cab driver. At the hearing on the motion to suppress, the State introduced the three photographic lineups, as well as testimony explaining how the lineups were conducted. The State also presented the testimony of the cab driver, who stated that he got a clear view of his assailant's face at least four times during the incident: when the driver approached the assailant next to his cab; in the breezeway, just outside the passenger's apartment; inside the apartment, as the assailant frisked the passenger; and inside the apartment, when the assailant faced the driver and struck him with the gun.

The cab driver further testified at the hearing that neither the parking lot nor the living room of the apartment was well-lit, but stated that the breezeway was brightly lit. Thus, when the assailant left the apartment door open, light from the breezeway illuminated the living room. When asked why he could not identify a suspect from the first lineup, the cab driver responded that all of the individuals pictured had short hair, and he therefore knew that none of them was the man who robbed him. He also acknowledged, on cross-examination, that he did not recognize Thomas's facial features in the first lineup. The cab driver further testified that he was able to identify Thomas from the second lineup because of both his hairstyle and his facial features. He identified Thomas with 100% certainty from the third lineup because the color photographs made identification easier.

During the cab driver's testimony at the hearing, the trial court asked Thomas to stand in front of counsel table so the cab driver could observe Thomas's height and build. The trial court overruled defense counsel's objection to this request, stating that requiring the defendant to stand was not the equivalent of requiring a defendant to testify against himself. After Thomas stood, the court asked the cab driver if he recognized Thomas as his assailant, and the cab driver responded affirmatively. When the court asked how he was able to recognize Thomas given that he now had short hair, the cab driver stated that he recognized only Thomas's face.

After the hearing on the motion to suppress, the trial court entered an order granting Thomas's motion in part and denying it in part. Specifically, the court found that the third photographic lineup was impermissibly suggestive because Thomas's hairstyle appeared different from the other suspects pictured, the photograph appeared to be framed differently, and the photograph was the only one to appear in both the second and third lineups. The court concluded, however, that both the identification from the second photographic lineup and the cab driver's in-court identification of Thomas would be allowed. In support of this ruling, the court found that because of lighting and shading, Thomas's facial features in the first lineup were somewhat distorted and the picture therefore did not resemble the photograph of Thomas used in the second lineup. The trial court further found that the cab driver's in-court identification of Thomas had an origin independent of the photographic lineups. The court noted that the cab driver had the opportunity to observe Thomas at close range during the incident and that the cab driver's testimony demonstrated that he was "completely focused on [Thomas]" during the incident.

At trial, the State presented the testimony of the cab driver as to the robbery and subsequent events. The cab driver also confirmed his identification of Thomas in the second photographic lineup and he again identified Thomas in court as his assailant. Additionally, two different police officers testified as to how they identified the assailant's car as belonging to Thomas.

The State also presented evidence that late on the afternoon of the incident, Thomas reported to the Marietta police that his car had been stolen from a hotel parking lot in Marietta. The following day, a man identifying himself as Thomas called the Gwinnett County Police Department to inquire about his car. According to the police officer who answered the call, the man stated that his car had been stolen from Marietta and that some unidentified person told him the car could be recovered from a Gwinnett County impound lot. The Gwinnett County detective investigating the case, however, stated that he did not enter the car into the state database as recovered until "well after" Thomas's phone call to the department. Given this fact, there would be no way for anyone to learn of the allegedly stolen car's location on October 17.

The investigating detective testified that he applied for and obtained a search warrant for Thomas's car. When they executed the search warrant, police found a handgun inside a compartment on the driver's side door, a loaded magazine for that gun, four cell phones, a computer tablet, and two laptop computers. The prosecutor asked the detective if police...