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Hughes v. State

Court of Appeals of Georgia, Fifth Division

March 12, 2018

HUGHES
v.
THE STATE. HARRIS
v.
THE STATE.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          Bethel, Judge.

         Christian Hughes and Blaise Harris were indicted and tried jointly[1] on two counts of armed robbery and three counts of aggravated assault stemming from a late-evening robbery of a pizzeria. They now appeal from their convictions and the denial of their motions for new trial. In Case No. A17A1413, Hughes argues that the State did not present sufficient evidence to support the charges against him and that he received ineffective assistance of counsel because his trial counsel did not move to suppress certain evidence obtained after his arrest. In Case No. A17A1414, Harris also challenges the sufficiency of the evidence presented against him, and he argues that he received ineffective assistance of counsel because his trial counsel did not call a particular witness that could have established an alibi. For the reasons set forth below, we affirm.

         On appeal, a defendant "is no longer presumed innocent and all of the evidence is to be viewed in the light most favorable to the jury verdict." Batten v. State, 295 Ga. 442, 443 (1) (761 S.E.2d 70) (2014) (citation omitted). So viewed, the evidence as presented at trial shows that on the evening of December 11, 2013, shortly before 11:00 pm, two men entered a pizzeria in Gwinnett County. The first man wore a letterman-style jacket, covered his face with a black ski mask, and carried a revolver, while the second man covered his face with a red and gold Iron Man[2] Halloween mask and carried a set of brass knuckles.[3]

         During an altercation with employees, the man wearing the Iron Man mask struck one of the employees with the brass knuckles, resulting in a gash to the victim's head. The same man then took that employee's cell phone. Both assailants then demanded money from a second employee and took money from a cash register. The man wearing the ski mask and the letterman jacket repeatedly asked the employees, "No one wants to die tonight, right?" One of the employees testified that he was in fear of losing his life or being injured during the time he was being held at gun point and threatened by the two assailants. The two assailants left the restaurant with the cash and the cell phone they had taken.

         Another witness, a third employee of the pizzeria, ran out of the restaurant toward nearby businesses to seek assistance. A person he encountered outside called 9-1-1 to report the incident. While outside, the employee observed multiple people getting into a white Dodge vehicle which then drove away. The employee provided a description of the vehicle to police.

         The police dispatch provided the vehicle description to officers in the area around 11:00 pm. Moments later, a police officer stopped a white Dodge Charger in response to the call. The vehicle was only occupied by the driver, but the arresting officer noticed a set of brass knuckles and an Iron Man mask inside the vehicle. The driver of the vehicle was wearing a letterman jacket.

         The driver was taken into custody, and the police drove him to the pizzeria so they could ask witnesses if they had seen him during the incident (the "show up"). On the way to the show up, unsolicited by the officer, the driver asked "Is this where the robbery happened?" and whether the officers had "caught the other two guys." After arriving at the pizzeria for the show up, two employees of the pizzeria that were asked could not identify the driver's face because he had been masked, but they did recognize his clothes as the letterman jacket worn by the assailant who was carrying the gun and covering his face with the ski mask.

         At trial, the State called the driver as a witness. In his trial testimony, the driver stated that he drove Hughes and Harris and dropped them off near the pizzeria. They returned to his car five or ten minutes later, and Harris told him that they had robbed the pizzeria. After driving away from the pizzeria, he dropped off Harris and Hughes at Harris's car, which was parked closeby. The driver stated that he had purchased the Iron Man mask just before the robbery at the direction of Harris and that the brass knuckles belonged to Harris. He also stated that Hughes owned a letterman jacket similar to his and that Hughes was wearing his own jacket the night of the robbery.

         After the driver's arrest, pursuant to a search warrant, police searched the Dodge Charger. The police took fingerprints from the outside of the car, one of which matched Harris's fingerprints. Police also took a black ski mask, an Iron Man Halloween mask, a revolver, and a set of brass knuckles from the vehicle. The black ski mask was submitted to the Georgia Bureau of Investigation ("GBI") for DNA analysis. A GBI analyst testified at trial that the DNA profile taken from the ski mask matched a buccal swab of Hughes taken by the police.[4] Trial testimony regarding analysis of cell phone records[5] showed that calls placed from Harris's phone both before and after the robbery were routed through a cell tower in the vicinity of the pizzeria.

         Following a jury trial, Hughes and Harris were convicted on all counts. Both filed motions for new trial, which were denied following hearings. This appeal followed.

         1. Hughes and Harris first argue that the evidence presented by the State was insufficient to support guilty verdicts on each of the counts against them. We disagree.

         (a) As an initial matter, we note that there was conflicting evidence regarding the identity of Harris and Hughes and their roles in the incident at the pizzeria. Both Harris and Hughes suggested below and on appeal that the testimony of the driver, who the State believed to be their accomplice in committing these acts, was insufficient as a matter of law to sustain their convictions because his testimony was not corroborated by other evidence presented by the State. We disagree.

OCGA § 24-14-8 provides, in relevant part, that
[t]he testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including . . . felony cases where the only witness is an accomplice, the testimony of a single witness shall not be sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness[.]

         "The sufficiency of the corroborating evidence is a matter for the jury, and if the verdict is based upon the slightest evidence of corroboration connecting an accused to a crime, even if it is circumstantial, it is legally sufficient." Reynolds v. State, 267 Ga.App. 148, 151 (3) (598 S.E.2d 868) (2004) (punctuation and footnote omitted). "The corroboration need not be sufficient to warrant a guilty verdict or prove every material element of the crime; it need only tend to connect and identify the defendant with the crime charged." Id. (footnote and punctuation omitted). "The amount of corroborative extraneous evidence necessary to connect the accused with the commission of ...


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