BARNES, P. J., MCMILLIAN and REESE, JJ.
Barnes, Presiding Judge.
his conviction for two counts of armed robbery, hijacking a
motor vehicle, aggravated assault with a deadly weapon, and
two counts of possession of a firearm during the commission
of a felony, Carltavieus Stephens appeals from the denial of
his motion for new trial. On appeal, Stephens contends that
the trial court erred in allowing the State to correct
peremptory strikes it had previously made during jury
selection, and erred in denying his motion to suppress the
information downloaded from his cell phone before obtaining a
search warrant. He also contends that the trial court erred
in failing to merge the two counts of armed robbery. Upon our
review, we affirm Stephens's convictions, but because, as
the State concedes, the trial court erred in failing to merge
the two counts of armed robbery, we vacate the sentence and
remand the case for resentencing.
in the light most favorable to the verdict, See Jackson
v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781,
61 L.Ed.2d 560) (1979), the evidence demonstrates that, near
dusk, on January 29, 2016 the victim was finishing a
contracting job at the home of a commander in the homicide
division of the Atlanta Police Department, and was sitting in
his truck with the dome light as he sent a text message. A
young man, later identified as Stephens, approached the
victim, pointed a gun at his face and told him to crank his
truck. Stephens pulled the victim from the truck into the
driveway, and as the two scuffled; an accomplice joined the
men as they struggled for the gun. The scuffle spilled into
the street, and as the victim pulled away, a third accomplice
got into the truck and drove toward them. The victim ran
across the street and started screaming, and Stephens and the
other accomplice jumped in the bed of the truck. Stephens
continued to point the gun at the victim as they drove away.
According to the victim, the gunman was wearing a blue
windbreaker with reddish-orange sleeves.
neighbor who lived across the street heard the victim scream
and saw the truck leave the scene with two men on the back,
and one of the men was holding a gun. The homeowner later
retrieved video footage of the incident from his and the
neighbor's home surveillance cameras and turned the
videos over to police. In the video, the gunman was wearing a
distinctive blue jacket with orange sleeves. A few days after
the robbery, based on physical similarities with the group of
robbers, the homeowner videotaped four young men walking near
his home. One of the four was wearing the same distinctive
shirt as the gunman captured on his home surveillance video.
At trial, the homeowner identified Stephens as that person.
February 1, 2016, as an officer was responding to calls about
a vehicle break in and suspicious persons, he saw four young
men, one whom he recognized as Stephens from prior
encounters. The officer talked with the group, and then
continued to the vehicle break-in call. The vehicle's
owner provided him with surveillance video of the break-in
and the officer recognized the perpetrators as the four young
men he had just encountered. On February 3, 2016, the armed
robbery victim identified Stephens from a six-person line-up
as the person who had held him at gunpoint during the
robbery. At trial, he also identified Stephens as the gunman
who had robbed him. Police then obtained an arrest warrant
for Stephens, and during his arrest, police recovered a
pistol from his person. The pistol was not identified as the
one used during the robbery, but video of Stephens with the
same gun was retrieved from his cell phone, which was seized
during his arrest. The video was admitted at trial to impeach
Stephen's claim in his custodial statement that he had
found the gun on the day he was arrested.
Stephens first contends that the trial court erred in
permitting the State to correct peremptory strikes made
during jury selection by restarting the entire jury selection
process. He contends that OCGA § 15-12-166 requires that
once a juror is accepted by the State, the juror must be
not transcribed, prior to the start of trial, the trial court
established for the record that
during the actual selection process for the jury, when the
two sides were making their peremptory strikes, we reached a
point at which . . . the State informed [the Court's case
manager], whoops, we made a mistake, we want to undo a strike
we made on one or two jurors earlier and shift things around.
This request was made before anything was finalized. Like I
said, we hadn't finished picking the jury. I hadn't
called out any names and numbers, and the larger panel of 48
were blissfully unaware, or at least unaware of what had
happened. I brought [the prosecutor] and [defense counsel] up
to the bench and got a better understanding of what the
request was and asked [defense counsel] if he had any
concerns, and he ultimately indicated that he objected to it
but agreed to defer articulating that objection until now.
But he did timely object to the State's request to undo a
couple of selections so that they could start out, I think it
was with strike eight again. And I want the record to be as
clear as I am able to make it.
The way I remedied this, over [defense counsel's] timely
objection, was to undo everyone's selection. It
wasn't that the State could simply swap someone out for
their eight strike but [defense counsel] was returned all of
his strikes that he had made, eight, nine. I don't think
he had finished with the alternate yet but [defense counsel]
got all of his strikes back as well. Really all that changed
was we rewound a bit. [Defense counsel] had made his seventh
strike and the State made a different eight strike and then
we went on and finished jury selection.
conclusion of the trial court's summary, Stephens
objected that the reset of certain peremptory strikes had
the State being able to go back and make different selections
not just after I had stated the Defense No. 8, I had also
done Defense 8 and 9, We were getting ready to strike or
select the alternate. My selections were basically the same.
The State was able to - they were able to remove a certain
juror and get a different juror. It's not like it's
something that took place during the process and before it
was passed to me and I had made a selection. They asked [the
court's case manager] to get it back and to do it. We had
that its actions were authorized "under [its] authority
to regulate how the jury selection process unfolds," the
trial court overruled Stephens's objection.
§ 15-12-166 provides that "[i]f a juror is found to
be competent and is not challenged peremptorily by the state,
he shall be put upon the accused. Unless he is challenged
peremptorily by the accused, the juror shall be sworn to try
the case." According to Stephens, he was prejudiced by
the reset of the last peremptory strikes because the State
was provided with an opportunity to revisit jurors previously
identified by the defense as unacceptable. However, Stephens
was not prejudiced by the court's action since he was not
forced to accept an objectionable juror. See Thompkins v.
State, 181 Ga.App. 158, 159 (2) (351 S.E.2d 475) (1986)
("It is well established that the system by which juries
are selected ...