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Sloan v. State

Court of Appeals of Georgia, First Division

June 28, 2019


          BARNES, P. J., MERCIER and BROWN, JJ.

          Brown, Judge.

         Everett Sloan appeals from his convictions of armed robbery, aggravated assault, and boarding a bus with a weapon. He contends that the trial court erred in admitting other act evidence and by joining two indictments involving separate incidents for trial. He also asserts that his trial counsel provided ineffective assistance by failing to use an available peremptory strike to dismiss a juror. For the reasons explained below, we find that the trial court should not have admitted evidence of two prior robberies and reverse his convictions.

         The record shows that the trial court granted the State's motion to try the indictments together, over Sloan's objection. In Case No. 14CR1656, the State indicted Sloan for armed robbery of a person waiting at a MARTA bus stop based upon his alleged conduct on September 2, 2011. In Case No. 14CR1633-5, the State charged Sloan with boarding a MARTA bus with a concealed knife, as well as the armed robbery and aggravated assault of a bus driver based upon his alleged conduct on September 6, 2011. The trial court also admitted evidence of Sloan's previous guilty plea to robberies that took place in 2000 and 2005. The jury found Sloan guilty of the September 6, 2011 charges relating to the bus driver, but was unable to reach a unanimous verdict with regard to the September 2, 2011 charges involving the bus-stop victim.

         The September 2, 2011 Robbery at the Bus Stop.

         The State presented evidence showing that the victim was working at a Church's Chicken on Gresham Road when a man came in around an hour before the store closed stating that he was looking for a job. After learning that they were not hiring, the man persuaded the victim and her manager to give him something to eat for free. He then left when the store closed at 10:00 p.m., and the victim walked for approximately ten minutes to a bus stop after she finished working around 10:45 p.m. As she waited for "[t]he number 9, Tony Valley" bus around 11:00 p.m., the same man approached and waited with her. After asking and learning that the bus was not yet due to arrive, the man held a knife with a silver blade against her stomach and said, "Bitch, give me your bag." When she asked if he was serious because she had just fed him, he repeated the same words verbatim. After she gave him the bag, he told her to run, and she "ran toward Walmart." She called 911, but her phone went dead, and she did not "know if they picked up the address or not." The victim's daughter took her home, and she did not call the police again. The victim explained that she did not do so because she was afraid, apparently because the man knew where she worked, and it could have been worse. Subsequent police investigation did not reveal any record of her 911 call, and the police did not learn about the robbery until 12 days later.

         The September 6, 2011 Robbery of the Bus Driver.

         The victim in this case testified that she was driving her last "in-bound trip" for the "Route 9, Tony Valley" bus when she stopped at a location not far from the Walmart on Gresham Road some time after 11:23 p.m. because a man was waiting for the bus. The man boarded the bus, tapped a Breeze card to pay his fare, and sat down in the third seat, which was closer to the rear door than the front door. He was the last person to tap a Breeze card for her shift, and the only person on the bus. The man made conversation with the bus driver, and she testified that he stated that he attended the Everest Institute and was majoring in heating and air conditioning.[1] At one point in their conversation, he asked if this was the last bus, and she stated only that she thought so, even though she knew that it was the last bus. After some additional conversation, he asked her to stop at the next stop. As he exited the bus, "he stopped at the door and turned and just jumped on [the bus driver]." While he grabbed her by the neck and demanded her purse, she tried to feel for the emergency brake because the bus was rolling. When the bus jerked to a stop, she was able to unhook her seatbelt, stand up, and attempt to escape. As they kicked and punched one another, he kept demanding money, and she kept telling him she did not have a purse. After commenting that the bus driver was strong, the man pulled out a knife and stabbed her in the arm. She testified that when he "goes over to the seat of the bus and he's looking," she hit an emergency button with a microphone every chance she could while screaming for help and hitting the horn of the bus. The man warned "don't make me kill you" and stabbed her a total of three times. At some point, another bus arrived, and the man left. After he left, the bus driver realized her watch was missing along with a "pouch" containing her MARTA identification, driver's license, credit card, and $10 cash.

         The bus driver testified that her bus had a mirror that allowed her to look back at the seated man while she was speaking with him "[e]very now and then . . . [b]ut not long." She testified that she was able to observe him for "[a]bout five[, ] ten, twenty minutes"; she acknowledged that she is trained to focus on the road while driving the bus. She testified that she remembered nothing distinctive about the man's voice, and she was not sure whether he had facial hair.[2] At one point, she was "face-to-face" with him, and she explained that she got her best look at him while she was fighting with him. At trial, she described the knife used by her attacker as a kitchen or steak knife with a black handle.[3]

         The State presented evidence showing that the same Breeze card used by the last passenger to board the MARTA bus was used earlier that day at a train station with closed-circuit video cameras. Images from the train station showed a man wearing a green and black shirt exiting the train at 12:18 p.m., around the same time the Breeze card was used, and the same person again at 5:24 p.m., wearing the same shirt. From these images, a MARTA police officer created a still-image BOLO and sent it to all MARTA personnel. This officer testified that "[t]he uniform at Everest Institute . . . they wear a green and black shirt." In a statement provided to police, the bus driver described the man as wearing a "white shirt." While the Breeze card was used again the day after the assault and robbery of the bus driver, the State did not present surveillance video depicting who used the card on that day, and the officer who reviewed the surveillance video to create the BOLO testified that reviewing footage for the day after the robbery and assault "was not a part of my assignment."

         It is undisputed that there is no video of the passenger boarding the MARTA bus with the same card, and no method for MARTA to determine from its Breeze card records the identity of the person who used the card to board the bus. Sloan presented evidence showing that the Breeze card at issue could only be used for 30 days, and that the same card was used 23 times on September 14, 2011, between 7:22 a.m. and 6:12 p.m., the same day Sloan was arrested and placed in custody around 2:00 p.m.

         The former director of the Everest Institute on Wesley Chapel Road testified that Sloan was enrolled in its "heating ventilation and air conditioning" program and that students in this program wore green and black shirts. When the police came to the school on September 7, 2011, the director identified Sloan as the person in the BOLO created by MARTA police. He provided the police with an orientation picture of Sloan and informed the police that the school sold discounted Breeze cards to its students.

         A MARTA detective created a photographic lineup, and the bus driver identified Sloan as her attacker both in the line-up and at trial. She testified at trial that she was sure she had identified the right person "[b]ecause I will never forget those eyes."[4] The detective who showed the photographic lineup to the bus driver testified that he recorded his interaction with her at the time of the lineup, and the purpose of such a recording is to ensure that an officer does not accidentally influence a witness into picking a particular person. He acknowledged that he knew Sloan was a suspect when he placed his picture in the lineup and that it is a better police practice for an officer not to know who the suspect is in a photographic lineup when showing it to an eyewitness. He was also aware that this was a high-profile case "all over the news." The bus driver testified that the lineup was not recorded, and no recording of the lineup was introduced or played for the jury at trial. All of the men in the photographic lineup had goatees or beards.

         The police attempted to arrest Sloan at his residence, but he was not at home. A search of his home revealed an Everest Institute shirt in the same bedroom as a box of knives with black handles. The State presented no evidence showing that they recovered the Breeze card or any items taken from either of the victims.

         On September 14, 2011, police located Sloan "off of Gresham Road near his home." A marshal saw him crossing the street from the Church's Chicken to a laundromat, and he was taken into custody. After Sloan was already in handcuffs, the bus-stop robbery victim approached "kind of upset stating, 'hey, that guy robbed me.'" She testified at trial that she saw him walking past the Church's Chicken and "took a double look and . . . realized it was him" right before he was arrested. In an interview with a police detective, the bus-stop robbery victim "stated that while she was working, someone came up into the restaurant and said that they thought that the person that robbed her was across the street." During cross-examination, defense counsel established that this person was not present during the robbery.

         The November 7, 2000 Armed Robbery of Church's Chicken on Gresham Road.

         The State presented evidence showing that Sloan and another man robbed the restaurant after 8:00 p.m. by pointing a gun, ordering everyone to the floor, and instructing an employee to open the cash drawer. Both men were wearing black masks over their faces, and it was clear from the moment they entered the store that they intended to commit a robbery. Sloan subsequently pled guilty to robbery, reduced from the armed robbery charged in an indictment against him, and he was sentenced to serve four years in prison.

         The July 19, 2005 Robbery of Family Dollar.

         The State presented evidence showing that Sloan robbed a store while wearing panty hose over his face. As he was exiting the store, he brandished a knife at a customer who was entering the store.

         1. Sloan contends that the trial court erred by joining the two indictments together for trial. We disagree.

         In Dingler v. State, 233 Ga. 462 (211 S.E.2d 752) (1975), the Supreme Court of Georgia adopted the ABA Standards on Joinder of Offenses. Id. at 463. Under these standards,

[t]wo or more offenses may be joined in one charge, with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both: (a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

(Citations and punctuation omitted.) Id. at 463. But, when "multiple offenses have been joined solely on the ground that they are of the same or similar character, the defendant has an absolute right to a severance of the offenses." (Emphases supplied.) Terry v. State, 259 ...

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