a jury trial regarding ninety separate counts of criminal
activity, Tamario Wise appeals his convictions for a spree of
crimes including murder and armed robbery, contending that
the trial court made certain evidentiary errors and that the
evidence was insufficient to support one count of armed
robbery. For the reasons set forth below, we
appeal, Wise has challenged the sufficiency of the evidence
with regard to only a single count of armed robbery,
involving the theft of a wedding ring.
in the light most favorable to the verdict, the record shows
that, around 9:30 p.m. on the night of November 22, 2010,
Lisa McGraw and her boyfriend, Charles Boyer, returned to
McGraw's apartment complex from a short trip to a store.
They were walking toward her apartment when Boyer returned to
his car to retrieve something he had forgotten. As McGraw
continued toward the apartment, she felt a gun placed to her
head and heard a voice from behind ordering her not to turn
around. McGraw realized that two men were behind her, and
that a third man was with Boyer. The men ordered Boyer and
McGraw to walk to their apartment and to hand over their
keys. McGraw gave the men her purse, and then she and Boyer
tried to run away. McGraw made it safely into her
neighbor's apartment, but Boyer did not. Chris Miller, a
neighbor walking his dog, heard a commotion and saw Boyer
holding a grocery bag and facing three robbers. Miller then
turned away, but he heard three gunshots and ran inside his
apartment to call 911. The three men fled the scene. Boyer
died from gunshot wounds to the torso. His injuries were
consistent with his being in a struggle and trying to block a
gun from shooting at him and then being shot again while
trying to free himself.
three men who attacked McGraw and Boyer were Wise, his
co-defendant Robert Veal, and his co-indictee Raphael Cross.
All three arrived at and left the scene of the murder in a
black Toyota Highlander SUV. Wise and Veal were carrying
guns. Cross testified that he was with Wise and Veal at the
time of the murder, but he stayed behind in the car when the
shooting occurred. After they left the scene, Cross told Veal
and Wise, "Y'all are going down for what y'all
regard to the armed robbery conviction which Wise challenges,
Wise was indicted for the theft of a wedding ring from Angela
Fox in her presence. Hannibal Heredia, who is Fox's
husband, testified that he was doing yard work on November
27, 2010 at his home in the Benteen Park neighborhood of
Atlanta while his wife and his daughter were inside. Two men
drove up, approached Heredia in his yard, assaulted him, and
forced him inside his home. According to Heredia, the
assailants, who were armed, tied up Heredia, his wife, and
his daughter, and they stole the Heredias' jewelry and
wedding rings. In addition, the assailants stole several flat
screen TV's, Heredia's and Fox's cell phones, and
their Audi. The Audi and the cell phone were later recovered
after police tracked Heredia's phone to an address
associated with Fernando Whatley, one of Wise's
co-defendants. Because Whatley later recanted at trial, his
videotaped confession in which he told police that he
participated in this home invasion was played for the jury.
Whatley also told investigators that he was assisting Wise in
the burglary. Whatley gave police specific details of the
crime, including the date, time, items stolen, and the manner
in which the victims were tied up and the materials with
which they were tied. Heredia's own account of the home
invasion matched and corroborated Whatley's statement,
although Heredia, himself, never positively identified any of
did not mention his wife's name in his testimony, and
Fox, herself, did not testify. Detective Velasquez, however,
who was one of the initial responders, testified that, on
November 27, 2010, he went to the Benteen Park home to
investigate. He identified the victims whom he interviewed to
include Angela Fox.
evidence showed that, in reaction to the crime spree, police
put together a task force to find the perpetrators. The
police tracked Boyer's missing cell phone to a black
Toyota Highlander SUV, which had been abandoned at a MARTA
Station. The SUV had been stolen by Wise and another
individual a few days before the Boyer shooting. A cigar butt
testing positive for Wise's DNA was discovered inside the
evidence was sufficient to enable the jurors to find Wise
guilty of the murder of Boyer, the armed robbery of Heredia
and Fox, and the remaining convictions beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct.
2781, 61 L.Ed.2d 560) (1979). Though Wise argues that there
was no evidence that he stole a wedding ring from Fox's
presence because Heredia never identified her by name, there
was testimony from Detective Velasquez placing her at the
scene and identifying her as a victim.
contends that the trial court erred by allowing his
co-defendant's attorney to conduct a one-on-one
identification of Wise during trial. We disagree.
record shows that, while cross-examining Carl Craven, the
victim of an armed robbery by Wise and others, a
co-defendant's attorney began to question Craven about
his assailants and asked if Wise "looked a little bit
like" one of them. Wise immediately objected, and Craven
was subjected to voir dire questioning. Outside the presence
of the jury, Craven testified that he had never previously
been able to identify any of his assailants. Craven did,
however, indicate that he remembered enough about the robbery
that he would be able to testify whether Wise was similar in
height to his assailant. The co-defendant's attorney
stated during voir dire that he did not intend to ask for a
one-on-one identification. Instead, he merely wanted to ask
whether Wise was similar in height to one of the robbers.
Over Wise's objection the trial court allowed this line
of questioning. Thereafter, the jury was brought back into
the courtroom, Wise was asked to stand, and Craven testified
that he was similar in height to his assailant.
now contends that this line of questioning amounts to an
inherently suggestive one-on-one identification of Wise by
the witness. See, e.g., Butler v. State, 290 Ga.
412, 415 (3) (721 S.E.2d 876) (2012) (a one-on-one showup is
inherently suggestive but not necessarily inadmissible).
Wise's arguments, however, are based on precedent that
does not control his situation because Craven neither
participated in a one-on-one showup nor made any
identification of his assailant. To the contrary, Craven
admitted that he could not identify who actually robbed him.
A review of the full transcript shows that this line of
questioning allowed Wise, on cross-examination, to get Craven
to admit that Wise was much taller than 5'4", the
height of the assailant that he had previously reported to
police. In fact, Wise was able to elicit Craven's
admission that he had made a bad approximation of height,
drawing his credibility largely into question. Ultimately,
then, the testimony which Wise now challenges benefitted his
defense. There was neither error nor harm.
contends that the trial court erred by granting neither his
motion for mistrial nor his motion to admonish the prosecutor
after the prosecutor stated that Veal, Wise's
co-defendant, had admitted to a rape that occurred during the
crime spree in which Wise was involved. Wise argues that,
since Veal never testified, the prosecutor's statement
was improper. We disagree.
record shows that, in his opening argument, Veal's
counsel stated that Veal had admitted to the rape of a woman
that happened during a home invasion shortly after
Boyer's murder. The prosecutor's argument was proper,
as he was simply restating the comment made by Veal's own
attorney. Even assuming more than this was required to
support the prosecutor's inference, there was actual
evidence that Veal committed the rape in question. Veal
stipulated to the fact that his DNA matched a rape kit taken
from the victim, and Cross testified that he accompanied Wise
and Veal on the home invasion and that he witnessed Wise and
Veal raping the woman. See Morgan v. State, 267 Ga.
203 (1) (476 S.E.2d 747) (1996) (deductions made during
closing argument may even be absurd as long as the argument
does not introduce facts not in ...