Cert. applied for.
Armed robbery, etc. Gwinnett Superior Court. Before Judge Turner.
Lynn M. Kleinrock, for appellant.
Daniel J. Porter, District Attorney, Christopher M. Quinn, Lindsay B. Gardner, Assistant District Attorneys, for appellee.
BOGGS, Judge. Barnes, P. J., and Branch, J., concur.
Marcus Amey appeals from his convictions for armed robbery, aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a first offender probationer. He contends that the trial court erred by admitting evidence of a prior attempted robbery and that his trial counsel provided ineffective assistance of counsel. We find merit in Amey's contention that the prior attempted robbery should not have been admitted into evidence, and we therefore reverse.
The record shows that the charges at issue in this appeal arose from the September 26, 2011 robbery and aggravated assault of a woman in an apartment complex parking lot. The prior crime took place on September 29, 2008 and involved the attempted robbery of a woman outside her home.
September 26, 2011 Robbery
The victim testified that when she drove into her apartment complex around 2:00 a.m., she saw a " very noticeable" red car that looked as if it was leaving the apartment complex. After she passed it, she checked her rear view mirror and noticed that it was following her. She parked and waited a couple of minutes " to let the car park or go wherever they're going to go," because she " felt at that moment that something wasn't right." She saw the car park in front of a different building in the apartment complex and heard a car door close before getting out of her car and walking toward her building.
When she looked behind her, she saw a fit, six-foot tall black male, wearing all black with a tight-fitting tank top. She locked eyes with him, " [a]nd that's when he got the
gun and came at me and pointed it to my head." She tried to dial 911, but was unable to do so. The man placed the gun to the back of her head, told her to turn around, and stated, " I know you have money." After the victim denied having any money, he told her to lie on the ground and start counting. While she was counting, he grabbed her Coach purse which contained $10, her wallet, a rim lock, and papers. When she glanced up as he started to walk away, he told her, " Turn around." She heard him get into a car and leave. After she " felt that the car left, [she] called 911." Following her initial report to the police, the victim called back to add that she had determined from online research that the red car she had seen was a Dodge Magnum.
The victim testified that a street light " was working that night, which is angling to where -- toward where the incident happened, so [331 Ga.App. 245] it's visible." She believed that there was more than one person in the red car and that the person who robbed her was the passenger, but she acknowledged that she could not see how many people were in the car. She heard the car running during the entire encounter and it was " an in-and-out type thing." She was not certain how long she interacted with the robber, but guessed it was " anywhere between five and ten minutes."
On September 27, 2011 at 7:19 p.m., a police sergeant stopped a red Dodge Magnum after it made an unsafe lane change and based upon a BOLO for the same make and model. The car was occupied by three women and one man, Amey, who occupied the right rear passenger seat. After giving the driver a warning, the sergeant " sent everybody on their way." While completing paperwork on the traffic stop, the sergeant realized that one of the female passengers had an outstanding arrest warrant.
Based upon his recollection of where the driver lived, he went to a nearby gas station to keep watch for the car. At 8:09 p.m., he saw the red Dodge Magnum approaching with one front headlight out. When he stopped the car again, it was occupied by the same four people sitting in the same location. He placed the female passenger under arrest for the outstanding warrant. After she stated that she wanted to give her personal belongings to Amey, the sergeant asked Amey to step out of the car.
The victim drove past the location of the traffic stop and called 911 to report that the police had stopped a car similar to the one involved in her robbery. A detective investigating the robbery testified that when he called the victim back, she stated that " a large, heavyset black male standing outside of the vehicle ... appeared to be the person that had robbed ... her."  The victim testified that the location where she saw the red Magnum was " [l]iterally across the street from one of the entrances of my apartments." Based upon a conversation with the detective investigating the robbery, the sergeant transported Amey and the vehicle " up to headquarters" while a search warrant was being obtained.
A search of the car revealed a handgun in the rear hatch compartment behind a large speaker box mounted on the backside of the rear passenger seat. At the time of the second traffic stop, a retractable cover used to hide the contents of the hatch compartment was in place; the detective who searched the vehicle testified that it would have been possible for a rear passenger to place the gun in the hatch compartment by reaching " between the [rear] seat and that [331 Ga.App. 246] retractable cover into the back cargo area of the vehicle." No items belonging to the victim were found in the car or in a search of the apartment where Amey was staying.
A detective showed the victim a photographic lineup several hours after she called to report that the police had stopped the red Magnum involved in her robbery. The victim pointed to Amey's photograph and stated, " This one looks closer to the description than any other. Do you know his height?" The detective responded, " Do me a favor, go ahead and circle number 3." At trial, he explained that he asks all witnesses to circle a picture to which they have pointed. The ...