White v. State

350 Ga.App. 218

828 S.E.2d 445

WHITE

v.The STATE.

A19A0504

Court of Appeals of Georgia.

May 23, 2019

Christina Marie Cribbs, for Appellant.

Paul L. Howard Jr., Atlanta, Francis McDonald Wakeford IV, for Appellee.

Brown, Judge.

Reginald White appeals from his convictions of burglary in the first degree and possession of tools for the commission of a crime. He contends that the trial court erred by denying his motion to suppress based upon an impermissibly suggestive show-up identification and failing to make a proper inquiry into his request to represent himself under Faretta v. California , 422 U. S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). For the reasons explained below, we affirm.

The record shows that an eyewitness to the burglary testified in a motion to suppress hearing, as well as at trial. In the motion to suppress hearing, the witness, who had lived in the same gated condominium community as the burglary victim for three years, testified that when he heard a car door slam, he looked outside his upper story window and saw a man getting out of the driver’s side of a bright red Monte Carlo. This car was "not normally there" and it did not have a regular license plate. Instead, it had something "like maybe from a used car dealer ... it was white, and it was yellow and there was some writing on it." The witness found it unusual because it was the middle of the day when the parking lot was usually empty, and he had never seen that car before. He saw a person come up the steps to his building, assumed the person was visiting his neighbor, and then heard some unusual noises.

About ten minutes later, he saw another man get out of the passenger side of the red Monte Carlo and approach another door in a different unit. He watched "for a while" and thought that man is "going to feel really stupid in a few minutes when he realizes that he’s gone to the wrong door." After walking away from the window to do something else, the witness heard "more loud noise," looked out the window again, and saw the passenger walking back across the street with a flat screen television. He watched the man place it in the back seat of the car. He did not immediately call 911 because walking with a television does not necessarily mean it was being stolen.

The witness explained that the Monte Carlo was located approximately 40 to 50 feet away from him during the burglary, that it took place around 10:00 to 10:30 in the morning, that the weather was dry and "sunshiny," and that nothing obstructed his view from the window to the street.¹ He saw the driver coming up the stairs "very briefly" for about 10-15 seconds. With regard to the passenger he testified,

I saw him when he got out of his car and went into the unit downstairs and I saw him leaving with the TV. So I’m thinking he would have been facing me when he came towards the building, so that’s probably about another maybe 15, 20 seconds probably at the most there, and then I saw him when he left and which basically I saw the back of him there. But when he turned to get into the car I was able to see his face again.... Now, I’m a distance away, so I’m not going to – able to say, well, he has a scar under his left eye or anything like that, but, you know, I can see the gentlem[a]n’s basic proportions and notice what he had on and his hair.

He described the passenger carrying the television as having braids in his hair and being heavier than the smaller, more slender driver.² The driver might have also had braids in his hair. With regard to the description he provided to the 911 operator, the witness recalled mentioning braids in the hair, but "didn’t give [the operator] everything. She really didn’t ask for everything because there were two guys."

After talking with a friend who had noticed something strange about the burglary victim’s door that morning, the witness went downstairs and saw that the victim’s door jam was broken and the "door was a bit ajar." He then called 911 and gave a description of what he had seen to the operator. He "basically told them ... that [he] saw ... a burglary that had just taken place. [H]e described the car and [he] gave a little bit of information about the two individuals and explained that what [he] saw them take was the TV." As he talked with another neighbor about what had happened, he received a call back from the police stating "they believe that they found the car that I described" and asked if he could "go be a witness or to identify to see whether or not they’re the same people that I saw."³ A police officer picked him up and drove him to a location approximately five minutes away. The witness testified that when he arrived at the location

I saw the car – obviously I can see that before I could see the person; that’s much larger, which I recognized immediately after confirming the vehicle plates. And there were two gentleman in front of it and some other gentlemen around the back. I know there were two gentlemen in front of it.

And initially I could recognize from their clothing at that time that those were the guys that I saw, but I couldn’t really see them. And I explained that to the officer that I couldn’t really see them, so he drove closer so that I could really get a good look at them.

After getting a closer look from about 15-20 feet away, the witness identified them as "the same two guys that I saw less than an hour [ago], pretty much before that, coming out of that unit." The men were "[w]earing the very same clothes that [h]e just saw them wearing." The witness explained that because the two men were standing in front of the car facing him, he did not see any handcuffs and "had no way of knowing whether they were cuffed or where their hands were," but he "would assume that they were handcuffed." At the time of this identification, the witness "was 100 percent certain" these were the same men he had just seen. In an audio recording of the show-up identification, the witness stated, "Yes, that is them. I specifically remember the guy with the braids."

By the time of the motion to suppress hearing, the witness expressed some uncertainty about being able to identify White in court, explaining that "it’s sort of not a fair question.... [I]t’s been some time since the incident. And at the time that I saw him initially, I wasn’t thinking that I would need to remember every nitty gritty detail about him." The witness also stated that he could not really answer as to what the two men were wearing because there was nothing distinctive about it and too much time had passed. The witness nonetheless testified that "to the best of [his] remembrance, [he saw] that individual here today."

During the trial, the witness testified during direct examination with regard to the show-up that

[t]hey were the guys I recognized in totality. It wasn’t any one specific thing, really. It’s seeing two guys, same proportions. I had just seen them so at that time I knew exactly what they were wearing. In other words, if someone were to ask you all an hour from now what I was wearing, you probably could give them a pretty good description, but if they ask you two weeks from now what I was wearing, you probably wouldn’t remember.... I didn’t pay that close attention. I wasn’t expecting to have to write a fashion column regarding what they were wearing.

During cross-examination, the witness repeated that there was "nothing distinctive to remember about what they were wearing," explaining that they were not wearing jackets or a suit, and with regard to color, he stated he "would probably say maybe a very light whitish t-shirt[ ]," but he was not certain. When pressed further about the body type of both men, the witness stated the passenger was heavier than the driver and that they both had on "loose fitting clothing." When questioned about previously stating both of the men had braids, the witness testified, "I mean, it was unclear. Now, I know the one that I – the gentleman over there. I recognize him. The look that he’s giving me right now, the eyes, something about that. That is the gentleman. Whether he has on clothes or not. He can’t change his eyes. He can change his hair, but he can’t change his eye."

The State presented evidence from the 911 call center showing that the witness called at 10:25 a.m. and stated that he thought "someone ... has just broken into the unit below me" and drove away with a flat screen television in a red Monte Carlo with temporary plates about five minutes before. He reported that "it [was] two black guys and one had braids or something like that." When the operator asked what they were wearing, the witness stated that he did not know. A patrol officer testified that he received a BOLO "that there was a burglar[y] in progress and gave a description of ... the red vehicle with a yellow drive[-]out tag." Immediately afterward, he saw a car matching the description traveling in the opposite direction. After confirming the drive-out tag, he initiated a traffic stop around 10:36 a.m., and detained White and Romell Middlebrooks. The officer testified that he believed both men had cornrows in their hair, and another officer testified unequivocally that White had cornrows or braids in his hair and described him as heavier than Middlebrooks. Around 10:49 a.m., the eyewitness identified the car and the two men. The traffic stop occurred approximately a mile and a half away from the burglary location.

The victim testified that her television, a briefcase, an iPad, and two containers containing cash were missing from her home after the burglary. The police recovered all of her missing property from the red Monte Carlo other than the cash. The majority of the victim’s items were located in the back seat and the television was in the trunk.

1. White argues that the trial court erred by denying his motion to suppress the eyewitness’s show-up identification. As White recognizes in his brief, "[a]lthough a one-on-one show-up is inherently suggestive,...