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Stephens v. State

Court of Appeals of Georgia, First Division

June 27, 2018


          BARNES, P. J., MCMILLIAN and REESE, JJ.

          Barnes, Presiding Judge.

         Following 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.

         Viewed 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.

         A 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.

         On 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.[1]

         1. 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 sworn.

         Although 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.

         At the conclusion of the trial court's summary, Stephens objected that the reset of certain peremptory strikes had permitted

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 already finished.

         Concluding that its actions were authorized "under [its] authority to regulate how the jury selection process unfolds," the trial court overruled Stephens's objection.

         OCGA § 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 ...

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