Attempted armed robbery, etc. Douglas Superior Court. Before Judge Emerson.
Mary Erickson, for appellant.
Brian K. Fortner, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.
MILLER, Judge. Branch, J., concurs fully in Division 2 and in judgment only in Division 1.
A jury convicted Jamaal Pinkney of two counts of attempted armed robbery (OCGA § 16-4-1), two counts of false imprisonment (OCGA § 16-5-41 (a)), and one count each of burglary (OCGA § 16-7-1 (b)), interfering with an emergency telephone call (OCGA § 16-10-24.3), and attempted burglary (OCGA § 16-4-1). Pinkney appeals from the denial of his motion for new trial, contending that the trial court erred in (1) denying his motion for a mistrial after defense counsel misstated certain evidence during his opening statement, and (2) admitting into evidence Pinkney's cell phone number and the records of his cell phone calls and text messages. For the reasons that follow, we affirm.
Viewed in the light most favorable to Pinkney's conviction, the record shows that on the evening of December 31, 2011, an elderly woman and her live-in caregiver were watching television at the woman's home in Lithia Springs. Pinkney had occasionally performed odd jobs for the elderly woman and, earlier that month, Pinkney had stopped by the woman's house.
Just after 11:00 p.m. on December 31, the woman and her caregiver heard what sounded like an explosion, and Pinkney, armed with a square, silver gun, burst through the kitchen door, breaking the door and the doorframe. Pinkney was dressed all in
black, with a hooded shirt pulled down over his face and a turtleneck pulled up to his mouth, so that only his eyes were uncovered. Although the women could not see Pinkney's face, the elderly woman asked Pinkney if she knew him from somewhere and recognized Pinkney by his voice and the way he moved. Once the elderly woman discovered that Pinkney was the intruder, she recognized his facial features as well.
[332 Ga.App. 728] After coming into the living room, Pinkney told the elderly woman and her caregiver to sit down, cursed at them, and pointed his gun at them. Pinkney forced the caregiver to sit down on the sofa by pointing his gun directly in her face. Pinkney asked the women where they kept their money and credit cards and dumped out the contents of the women's purses and bags onto the floor. The caregiver tried to dial 911 on her cell phone, but Pinkney took her phone and threw it across the room. At one point, Pinkney told the caregiver to pull up her nightgown and threatened to rape her.
The elderly woman then started holding her chest and saying that she could not breathe. She became pale and sweaty and started shaking, and the caregiver could not feel the woman's pulse. Pinkney then made a phone call, said that the victims did not have anything, and asked to be picked up. Pinkney kicked at the contents of the bags that he had dumped on the floor, unlocked the front door, and walked out of the house. Ultimately, nothing was taken from the house.
After Pinkney left, the caregiver called 911. A police officer responded just before midnight. Police officers observed that a window going into the basement of the woman's home had been broken, a lawn chair had been placed under the window and the door from the basement into the house had been forced open. Based on the victims' statements that the intruder made a phone call, the police officers obtained a court order for records from all the major cell ...