APPEAL
FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CR-17-3512]
HONORABLE JOANNA TAYLOR, JUDGE
Laura
Avery, for appellant.
Leslie
Rutledge, Att'y Gen., by: Karen Virginia Wallace,
Ass't Att'y Gen., for appellee.
WAYMOND M. BROWN, JUDGE
A
Washington County jury convicted appellant Freddie Lee Jones
of aggravated robbery and being a felon in possession of a
firearm. Appellant was sentenced as a habitual offender to
forty years' imprisonment for the aggravated-robbery
conviction and five years' imprisonment for being a felon
in possession of a firearm. The sentences were to run
concurrently for an aggregate prison term of forty years.
Appellant appeals his convictions, arguing that the circuit
court erred by denying his pretrial motion to suppress
pretrial identifications of him and by denying his
directed-verdict motion. We affirm.
Appellant
was accused of the aggravated robbery of the Valero gas
station located at the corner of Zion and Crossover Roads in
Fayetteville on October 20, 2017. When the Fayetteville
Police Department (FPD) could not find a suspect, they turned
to Facebook. An edited copy of the surveillance video of the
robbery was posted to FPD's Facebook page around October
30, 2017, to find leads.[1] FPD subsequently received an anonymous
tip naming appellant as the suspect. Appellant was arrested
and charged with aggravated robbery and being a felon in
possession of a firearm. He filed several pretrial motions to
exclude evidence, including the pretrial identifications of
him by two witnesses. A motions hearing took place on May 23,
2018.
Detective
Nick White of the FPD testified that he was the lead
investigator on the Valero robbery case. He stated that he
processed the scene and spoke with the victim, Manish Patel.
He also said that he collected surveillance footage of the
robbery on October 21, 2017, the day after the robbery. He
testified that he did not identify any specific person as a
suspect at that time. He stated that two patrol officers had
canvassed the area and come up with two potential persons of
interest, but they were eventually ruled out. Detective White
stated that FPD's community-oriented policing division
posted the surveillance video to the public on the FPD's
Facebook page. He said that instead of "having the
actual audio from the surveillance footage[, ] we had a scary
music video soundtrack to it." He stated that he did not
get any tips or develop any information about who the suspect
was between the time of the robbery and the time of the
Facebook post. He admitted that he had developed a suspect of
his own but ruled him out based on the presence of tattoos on
the person's wrists that were not present in the
surveillance video. He testified that he received an
anonymous call naming appellant as the suspect after the
video had been posted to Facebook. He stated that the caller
was female and that she gave specific information as to why
she believed appellant was the suspect, where he lived, and
with whom. He said that no one else called in any tips or
information about the robbery. Detective White stated that
the informant left a voicemail for him but called back and
spoke to him directly. He said that he did not have contact
with the informant again until about a week before the
hearing. He testified that the prosecutor told him that the
informant was Haylie West, Natasha Marquez's daughter. He
stated that based on the tip, he asked patrol officers to go
to appellant's residence at 804 South Erika and attempt
to locate either appellant or his girlfriend, Marquez, so
that they could be interviewed. He said that he eventually
interviewed both of them. He said that Marquez was aware that
appellant was the person he was investigating for the
robbery.
Detective
White stated that he spoke with Jarren Brown, appellant's
cousin, following Brown's arrest on unrelated narcotics
charges. He stated that Brown requested to speak to him the
day Brown was arrested and that Brown indicated appellant was
the person on the video. He said that Brown stated that
Marquez had shown him the Facebook post and that it was
"definitely [his] cousin" on the video. Detective
White testified that he and Brown viewed the surveillance
video later, after Brown had already identified appellant as
the person. He stated that Brown identified appellant on the
surveillance video by appellant's stature, appearance,
and voice.
Detective White testified that appellant was initially
arrested on an unrelated warrant. He stated that he
interviewed Marquez, and she gave statements concerning
appellant's involvement in the robbery. He said that
Marquez's statements included intimate details that had
not been released to the public, including the fact that the
victim would not stop eating peanuts. He stated that
appellant was then arrested on the robbery charge. He said
that Marquez denied any involvement at the time and was
released.
On
cross-examination, Detective White stated that he spoke with
Marquez three separate times before she was arrested. He said
during the first interview, Marquez identified appellant as
the robber. In the second interview, Marquez stated that the
victim would not stop eating peanuts, that appellant had to
fire his weapon twice, and that the victim would not give
appellant the money. According to Detective White, in the
third interview, Marquez admitted being the driver on the
night of the robbery and gave information about where she
parked during the commission of the robbery. He said that
Marquez told him that appellant had taken the weapon to
Brown's residence. The narcotics detectives were
subsequently involved and conducted a controlled buy at
Brown's residence. A search warrant was issued, and Brown
was arrested. He stated that Brown denied having the weapon
but stated that appellant had approached him about buying the
weapon. He testified that after Brown heard the voice on the
video, Brown said "without a doubt that it was
[appellant's] voice." Detective White said that
Brown was never charged for the robbery.
Jarren
Brown testified that he was arrested on November 7, 2017, for
simultaneous possession of drugs and firearms. He said that
Detective White asked him about the gun used in the robbery
but that he did not have the gun or anything to do with the
robbery. He stated that he received a copy of the Facebook
post from Marquez and that he initially thought it was a joke
or something. He stated that when Detective White showed him
the Facebook post after his arrest, he told Detective White
that "it kind of looked like [his] cousin," based
on appellant's build and stature.
On
cross-examination, Brown stated that he had known appellant
nearly his entire life. He said that he had spent a lot of
time with appellant and was familiar with the way appellant
carried himself and with his voice. He testified that
appellant approached him trying to sell a black .38 revolver.
He stated that before he watched the video with
appellant's voice on it, he thought it was appellant by
the way the suspect walked. He denied receiving help in his
criminal case from Detective White, stating that if he had
received help, he would have been able to get out of jail
without making bond.
Haylie
West testified that she was familiar with the Facebook post
of the robbery. She said that her aunt, Treva Parker, first
showed her the video and suggested that it was appellant on
the video. She said that she was unaware that the FPD had
posted the video when she first saw it. She stated that she
watched the video at least ten times to make "absolutely
certain that it was [appellant]." She testified that
after the watching the video, she was 100 percent sure it was
appellant. She stated that she talked to her younger sister,
A.K., before calling in the tip. She said that A.K. had lived
in the house with appellant from March until November 2017.
She stated that she knew appellant "fairly well"
and saw him about once a week when she came to see Marquez
and that she had stayed the night a couple of times. She
testified that she "hung out" with appellant
fifteen to twenty times between March and November. She
stated that she was able to identify appellant as the person
in the video based on his walk, hair, height, and work boots.
She said that she initially had concerns about the weight of
the robber until she noticed how small the robber's
wrists were and realized that the robber could have been
wearing extra clothing. West stated that she left a voicemail
for Detective White the night she watched the video and that
she called again the next day after showing the video to her
other sister. She said that one of her sisters had also
recognized the damaged backpack carried by the robber as the
one appellant carried. She testified that when she watched
the unedited video about a week before the hearing, she knew
it was appellant.
On
cross-examination, West testified that she thought appellant
was the robber from the first time she saw the video. She
said that she watched it several times because she wanted to
make sure before calling the police because she did not want
to "accuse someone falsely." She stated that she
asked her sister to watch the video, and her sister
identified appellant as the robber and said that appellant
had that Under Armour backpack that would not zip. She said
that she did not know her mother was in trouble when she gave
the tip, but that she reported appellant as the robber
because it was "the right thing to do." She stated
that after hearing the robber's voice, she was more
confident that it was appellant.
On
redirect, West stated that she used her phone to take a
picture of appellant and put it side by side to the person in
the video the day she spoke to Detective White. She testified
that she was "certain that [her] information was
correct. Taking the photo was more just for [her]." On
recross, she stated that she was sure it was appellant the
first time she saw the video and that she would not have
called the police unless she was absolutely sure.
The
court heard counsels' arguments, and at the conclusion of
the hearing, ruled that the pretrial identifications would
not be excluded.
Appellant's
jury trial began May 23, 2018. Officer Justin George of the
FPD testified that he answered the robbery call on October
20, 2017, at the Valero gas station. He stated that he was
able to watch surveillance video of the robbery while at
Valero that night and that he saw a black male dressed in
black pants, a black plaid shirt with white stripes, tan
boots, and a mask enter the store and commit the robbery. He
said that he gave a description of the suspect but that no
one was found that night.
Manish
Patel testified that he is the owner of the Valero in
question and that he was working the night of October 20,
2017. He stated that a black man came into the store with a
gun and demanded money. He said that the robber asked for
money as he approached the register, fired a shot, reached
over in the register, said something about
"killing" him, hit Patel's cell phone with the
gun, fired another shot, and turned and left the store. He
stated that the robbery was "really quick." He said
that he was eating peanuts as the robber approached the
register. He testified that the robber took approximately
$415 or ...