Jaccaro Cross v. State

                               FOURTH DIVISION
                                DILLARD, P. J.,
                            RICKMAN and PIPKIN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               https://www.gaappeals.us/rules



                                                                  December 19, 2023




In the Court of Appeals of Georgia
 A23A1446. JACCARO CROSS v. THE STATE.

      DILLARD, Presiding Judge.

      Following a jury trial, Jaccaro Cross was convicted of two counts of armed

robbery, two counts of aggravated assault, aggravated battery, battery, simple battery,

and two counts of possession of a firearm during the commission of a felony. On

appeal, Cross argues the trial court erred in (1) allowing his co-defendant—who

pleaded guilty to the foregoing offenses—to identify him in surveillance footage, and

(2) denying his motion to strike a different witness’s identification testimony. For the

following reasons, we affirm.
      Viewed in the light most favorable to the jury’s verdict,1 the record shows that

on February 26, 2019, Janet Martinez was working as a cashier at a restaurant. Around

7:26 p.m., a man—who Martinez recognized as a frequent customer—walked into the

restaurant with his face covered in blood, looking like he had been beaten badly.

Martinez spoke with the man for a few minutes before calling 911. Then, while

speaking with the police, Martinez went outside the restaurant through the back door

and observed another man lying on the pavement visibly injured. During the 911 call,

Martinez relayed the injured man’s report that the first “subject” was an African

American man wearing all black, and he fled the scene toward an apartment complex.

There was also a second subject with unknown clothing who was armed and fled in the

opposite direction.

      Once police arrived, a responding officer located both victims and discovered

that the victim lying outside the restaurant had been shot in the leg. And during the

investigation that ensued, law enforcement obtained surveillance footage from the

restaurant and other nearby businesses, including a gas station. Based on comparing

the surveillance footage from the gas station and restaurant, law enforcement


      1
          See, e.g., Cawthon v. State, 

 (

) (2019).
                                            2
identified two people of interest, and the video showed them enter a dark-colored

Chevrolet Cruze with obvious “cosmetic flaws.” Officers then placed a be-on-the-

lookout call (“BOLO”) for the vehicle. Later that day, the police found the vehicle

and initiated a traffic stop. When they did so, they discovered Kris Morand, a second

individual, and $4,000 in Mexican pesos. Both men were taken to the police station

and interviewed; and during his interview, the police discovered blood on Morand’s

pants.

         Upon further investigation, police discovered that Violet McKenzie owned the

Chevrolet Cruze; and when they searched the vehicle, the police found a firearm

cleaning kit, gun oil, and a bullet that had not been fired. Police also discovered blood

inside the vehicle, which was ultimately determined to match the DNA of one of the

victims. Subsequently, the police discovered body-camera footage taken when

McKenzie was stopped for a traffic violation in her vehicle approximately four months

prior to the events in question. The footage showed Cross—who was living with

McKenzie and Morand at the time—in the car with McKenzie. Text messages

recovered from Morand’s phone included one that read, “Yo, don’t bring that lick[2]

         2
       See State v. Fox, 

 (Minn. 2015) (explaining that “lick” is
often used as slang for “a theft or robbery”); see also Urban Dictionary,
                                            3
me and Bama hit, not even to Bama.” Morand confirmed that he referred to

Cross—who had “A” for the “Alabama Crimson Tide” tattooed on his face—by the

nickname “Bama.”

      Thereafter, Cross and Morand were charged, via joint indictment, with the

offenses previously noted. But Morand pleaded guilty and testified against Cross

during a jury trial. Following trial, Cross was convicted of all charged offenses. Cross

later filed a motion for a new trial (which he amended once), but the trial court denied

it.3 This appeal follows.

      1. Cross first argues the trial court erred in allowing testimony from Morand

identifying him in surveillance footage. We disagree.

      The decision of whether to allow lay opinion testimony under OCGA § 701 (a)

(“Rule 701 (a)”) is a matter within the trial court’s “sound discretion.”4 As a result,




https://www.urbandictionary.com/define.php?term=Lick (Last visited Dec. 18, 2023)
(defining the slang use of “lick” as “[a] successful type of theft which results in an
acceptable, impressive and rewarding payday for the protagonist”).
      3
       It appears from the record that neither party sought a hearing on Cross’s
motion for a new trial.
      4
         Bullard v. State, 

 (4) (

) (2019); accord Goforth
v. State, 

, 839 (2) (

) (2021).
                                           4
we accept the trial court’s findings of fact and credibility determinations “unless they

are clearly erroneous; but where controlling facts are not in dispute, such as those

facts discernible from a videotape, our review is de novo.”5 With these guiding

principles in mind, we turn to Cross’s claims of error.

      Relevant here, Rule 701 (a) provides:

      If the witness is not testifying as an expert, the witness’s testimony in the
      form of opinions or inferences shall be limited to those opinions or
      inferences which are:

             (1) Rationally based on the perception of the witness;

             (2) Helpful to a clear understanding of the witness’s testimony or
             the determination of a fact in issue; and

             (3) Not based on scientific, technical, or other specialized
             knowledge within the scope of Code Section 24-7-702.

And our Supreme Court has explained that when “there is some basis for concluding

that a witness is more likely than the jury to correctly identify a defendant as an

individual depicted in relevant photographs [or video recordings6], then lay opinion


      5
       Russell v. State, 

 (2) (

) (2020) (punctuation
omitted); accord Thomas v. State, 

 (2) (a) (

) (2020).
      6
        See Glenn v. State, 

 (II) (

) (2017) (“[W]e find
no meaningful distinction between lay witness testimony identifying the defendant in
either photographs or in video recordings.”).
                                           5
testimony identifying a defendant in those photographs [or video recordings] is

admissible under Rule 701 (a).”7 So, while a number of factors may determine if a

witness is “better suited to identify the defendant, perhaps the most critical factor to

this determination is the witness’s level of familiarity with the defendant’s

appearance.”8


      7
         Bullard, 

 (4); accord Goforth, 360 Ga. App. at 839 (2); see U.S.
v. Knowles, 

 (III) (A) (11th Cir. 2018) (“We have held that lay
witness identification testimony may be helpful to the jury only if there is some basis
to conclude that the witness is more likely to correctly identify the defendant from the
surveillance video than is the jury.”); U.S. v. Pierce, 

 (11th Cir. 1998)
(agreeing with most circuits that “lay opinion identification testimony may be helpful
to the jury where . . . there is some basis for concluding that the witness is more likely
to correctly identify the defendant from the photograph than is the jury” (punctuation
omitted)); Ronald L. Carlson & Michael Scott Carlson, CARLSON ON EVIDENCE
336 (8th ed. 2023) (“Numerous [federal] decisions support the right of a lay witness
who knows the defendant to identify him on a video of a bank robbery or a
convenience store break-in.”); Ronald L. Carlson, Edward J. Imwinkelried, Julie
Seaman, and The Late Erica Beecher-Monas, EVIDENCE: TEACHING
MATERIALS FOR AN AGE OF SCIENCE AND STATUTES 623 (8th Ed. 2018)
(noting that, while there is a “heated debate” among courts regarding whether to
permit a lay person to identify a defendant in photographs and video recordings, most
courts have permitted such testimony depending on the level of familiarity the witness
has with the defendant’s appearance).
      8
        Bullard, 

 (4) (punctuation omitted); accord Goforth, 360 Ga.
App. at 839 (2); see Knowles, 

 (III) (A) (explaining, as to admissibility
of lay witness identification testimony under Federal Rule of Evidence 701 (a),
“[p]erhaps most critical to this determination is the witness’ level of familiarity with
the defendant’s appearance” (punctuation omitted)).
                                            6
       Here, Cross argues the trial court abused its discretion in permitting Morand

to identify him in the restaurant’s surveillance footage of the armed robbery because

it failed to make a “threshold finding that the images were not clear and that he

possessed such unique knowledge so that he was the only one to lend clarity to the

images depicted that the jury might otherwise have.” But Rule 701 (a)’s criteria for

the admission of lay witness identification testimony is clear and makes no mention

of any required “threshold findings.” And Cross has not provided any other legal

authority suggesting the trial court must find that images are unclear or blurry or

Morand was the “only witness” in a better position than the jury to identify him in the

surveillance footage.9

       Cross further suggests that, under Rule 701 (a), a lay witness can never identify

a defendant in a video unless the images are blurry or otherwise difficult to interpret

and the defendant has some unique physical characteristic. Again, Morand cites no

legal authority to support this assertion. In any event, the trial court did find that “the


       9
         To support his assertion that these threshold findings are required, Cross cites
only to Glenn v. State, 

 (

) (2019). And while he lists several
factors the trial court considered in that case when admitting identification testimony,
Glenn does not require a trial court to make any particular finding in every case. See
id. at 554-55 (3).
                                             7
video does not clearly depict the individuals[,] [or] their faces . . . ,]” and our

independent review of the video supports this factual finding. Additionally, the person

seen in the video had “long dreads” similar to Cross, and he concedes that a unique

hairstyle is a physical characteristic that can weigh in favor of the admission of lay

witness identification testimony.

      Importantly, rather than setting forth specific factors that must be present for

admission of identification testimony under Rule 701 (a), the Supreme Court of

Georgia has held that such lay witness testimony is admissible so long as there is “some

basis for concluding that a witness is more likely than the jury to correctly identify a

defendant as an individual depicted in [a video recording], then lay opinion testimony

identifying a defendant in those [video recordings] is admissible under Rule 701 (a).”10

And again, our Supreme Court has rightly emphasized that “the most critical factor

to this determination is the witness’s level of familiarity with the defendant’s

appearance.”11 Here, Morand committed the crime with Cross, pleaded guilty, and



      10
         Bullard, 

 (4) (emphasis supplied); accord Goforth, 360 Ga. App.
at 839 (2).
      11
        Bullard, 

 (4) (punctuation omitted) (emphasis supplied); accord
Goforth, 360 Ga. App. at 839 (2).
                                           8
then testified against him at trial. The two men were friends and lived together with

McKenzie (Morand’s girlfriend) and her children for four or five months immediately

prior to the armed robbery. Suffice it to say, Morand was quite familiar with Cross’s

appearance, and we cannot say the trial court abused its discretion in allowing Morand

to identify Cross in the surveillance video.12

      Nevertheless, Cross argues (as he did below) that, even if the trial court

correctly applied Rule 701 (a), Morand is “still a single witness corroborating what no

other witness or piece of evidence without Morand corroborating himself could

confirm.” And Cross correctly notes that OCGA § 24-4-8 provides:


      12
          See Bullard, 

 (4) (holding that trial court did not abuse its
discretion in allowing officer to testify as to defendant’s identity in photographs,
under OCGA § 24-7-701 (a), given that officer had known defendant for several
years); Glenn, 

 (II) (finding that witnesses, who had known defendant
prior to the crime, were in a better position to correctly identify defendant in the video
than the jurors and, thus, such testimony was admissible under OCGA § 24-7-701
(a)); Goforth, 360 Ga. App. at 839-40 (2) (holding the trial court had some basis for
concluding that a confidential informant and detective were in a better position than
the jury to correctly identify defendant in photographs and videos when the CI had
interacted with the defendant during several drug transactions and had known him for
a “long time” and was familiar with him from working on the instant case); see also
Pierce, 

 (noting that “familiarity derived from a witness’s close
relationship to, or substantial and sustained contact with, the defendant weighs heavily
in favor of admitting the witness’s identification testimony . . .” (punctuation
omitted) (emphasis supplied)).
                                            9
      The testimony of a single witness is generally sufficient to establish a
      fact. However, in certain cases, including prosecutions for treason,
      prosecutions for perjury, and 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, except in prosecutions
      for treason.13


In this case, there were corroborating circumstances. Specifically, as discussed in

Division 2 infra, the trial court did not abuse its discretion in admitting McKenzie’s

identification of the two suspects getting into a Chevrolet Cruze in surveillance

footage from a gas station near the crime scene as Morand and Cross.14 Additionally,

text messages sent by Morand discussed committing a crime with “Bama,” which was

his nickname for Cross. And while the evidence might not be the strongest in the


      13
           (Emphasis supplied).
      14
         As explained in Division 2 infra, Cross does not identify the video he refers
to in challenging McKenzie’s testimony other than stating it was surveillance footage
from a Marathon gas station. But it appears from the record she identified him in a
video fleeing the crime scene from that gas station with Morand. Of course, “[t]he
burden is upon the party alleging error to show it affirmatively in the record.” Bennett
v. Quick, 

 (

) (2010) (punctuation omitted). So, if
we have missed something in the record or misconstrued an argument, “the
responsibility rests with appellant’s counsel.” Pneumo Abex, LLC v. Long, 

, 18 n.3 (

) (2020) (punctuation omitted).
                                          10
absence of Morand’s identification of Cross, if the verdict is “founded on slight

evidence of corroboration connecting a defendant with the crime, the verdict is legally

sufficient.”15

      2. Next, Cross contends the trial court erred in denying his motion to strike

McKenzie’s testimony identifying him in the gas station’s surveillance videos. Again,

we disagree.

      As an initial matter, neither Cross nor the State identifies the video footage in

the record pertinent to this claim. And while the trial transcript suggests it is

contained in State Exhibit 55, that exhibit includes several different video clips. Under

such circumstances, this Court is unable to confirm the trial court’s determination

regarding the quality of the video or anything else about the video that might have

made McKenzie’s testimony helpful to the jury. Simply put, Cross has failed to show

this alleged error affirmatively in the record.16


      15
         Gilmore v. State, 

 (1) (d) (

) (2012)
(punctuation omitted); see Stanbury v. State, 

 (

) (2016)
(“[I]n felony cases where the only witness is an accomplice, the testimony of a single
witness is not sufficient to establish a fact and must be supported by the testimony of
another witness or by corroborating circumstances.” (punctuation omitted)).
      16
         See Zellars v. State, 

 (1) (

) (2012) (“A party
alleging error carries the burden of showing it affirmatively by the record, and when
                                           11
      Regardless, McKenzie—who was Morand’s fiancé—also lived with Cross for

several months immediately prior to the attack. And as his roommate, she would

certainly be familiar with his appearance. Moreover, like Morand, McKenzie

identified Cross by his unique hairstyle. So, given these circumstances, we cannot say

the trial court abused its discretion by denying Cross’s motion to strike McKenzie’s

identification testimony.17

      For all these reasons, we affirm Cross’s convictions.

      Judgment affirmed. Rickman and Pipkin, JJ., concur.




that burden is not met, the judgment is assumed to be correct and will be affirmed.”
(punctuation omitted)); City of Warner Robins v. Baker, 

 (1) (a)
(

) (2002) (“When the error is shown only in the appellant’s brief and not
by the record, we must assume that the trial court’s rulings were correct.”).
      17
           See supra note 12.
                                          12