Cross v. State
309 Ga. 705
Ga.2020Background
- In January 2002 Debra Hymer was killed; Brandon Cross (appellant) and Jessica Cates (co‑conspirator) lived at Hymer’s house and were implicated. Cates later pled guilty to conspiracy; she invoked the Fifth and did not testify at Cross’s 2003 trial.
- Cates told her friend Ivester that Cross and Cates killed Hymer; Ivester anonymously reported those statements to police, prompting investigation.
- Recorded phone calls and interviews (some later missing from the record) captured Cross and Cates discussing the crime, investigators, and a false alibi; physical evidence (blood, mop, shoes, body in a mineshaft) and autopsy supported homicide by strangulation or blunt force trauma.
- At trial the State admitted Cates’s hearsay statements to Ivester as co‑conspirator statements, autopsy post‑incision photos, and a crime‑scene video; Cross was convicted of malice murder and related offenses and sentenced to life plus consecutive terms.
- On appeal Cross raised: (1) denial of ability to impeach Cates’s hearsay statements with her other inconsistent statements and plea bargain; (2) failure to instruct jury on burden for co‑conspirator hearsay; (3) erroneous admission of autopsy photos and crime‑scene video; and (4) that the record was incomplete because exhibits were missing and a post‑trial affidavit (cellmate recantation) was not considered.
Issues
| Issue | Cross's Argument | State's Argument | Held |
|---|---|---|---|
| Admitting other inconsistent hearsay / plea bargain to impeach Cates’s hearsay to Ivester | Cross: should have been allowed to impeach Cates’s Ivester statements with her later inconsistent investigator statements and plea deal | State: Cross never argued impeachment theory at trial; claim is forfeited | Forfeited — Cross failed to preserve the impeachment theory at trial; no review |
| Jury instruction on burden for co‑conspirator hearsay | Cross: court should have charged jury on proof required for admitting co‑conspirator statements | State: no timely objection at trial; pre‑2007 rule bars plain‑error review of unpreserved instruction claims | Forfeited — no objection at trial; claim not considered on appeal |
| Admission of post‑incision autopsy photos | Cross: photos gruesome/post‑incision and should have been excluded | State: photos necessary to show internal head/neck injuries obscured by decomposition; relevant and probative | Admissible — trial court did not abuse discretion; photos allowed where autopsy reveals material facts |
| Admission of crime‑scene/video recording | Cross: video cumulative of photos and prejudicial (gruesome, zooms) | State: video relevant to body condition, location of evidence, and concealment; duplicative evidence not per se inadmissible | Admissible — trial court acted within discretion; video properly showed condition/location of body and evidence |
| Completeness of record; missing exhibits; cellmate affidavit | Cross: missing audio/video and omitted post‑trial cellmate affidavit (recantation) deny meaningful appellate review | State: trial judge reconstructed record per OCGA, substitutes and transcripts were tendered and unobjected to; affidavit was filed after notice of appeal and not properly before trial court | Record sufficient — reconstruction complied with statutory procedure; substituted exhibits accepted; cellmate affidavit not part of record and not considered |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes standard for sufficiency of the evidence)
- Johnson v. State, 292 Ga. 22 (merger/vacatur of certain felony murder counts)
- Brown v. State, 250 Ga. 862 (post‑incision autopsy photos admissible when necessary to show material facts revealed by autopsy)
- Brown v. State, 295 Ga. 804 (preservation requirement for arguing exclusion of hearsay under a particular theory)
- Esprit v. State, 305 Ga. 429 (prior inconsistent statements of non‑testifying hearsay declarant limited to impeachment and require limiting instruction)
- Spears v. State, 296 Ga. 598 (admission of autopsy photos reviewed for abuse of discretion)
- Bunnell v. State, 292 Ga. 253 (photographs and trial‑court discretion)
- Klinect v. State, 269 Ga. 570 (photographs showing condition/location of body admissible)
- Wellons v. State, 266 Ga. 77 (crime‑scene video admissible to show location of body and relationship to evidence)
- Bamberg v. State, 308 Ga. 340 (record reconstruction; acceptance of substitute exhibits when trial judge and parties justify them)