Decapite v. State
312 Ga. App. 832
Ga. Ct. App.2011Background
- Decapite was convicted by a Houston County jury of armed robbery, four counts of burglary, four counts of theft by taking, and one count of criminal attempt to commit burglary.
- Evidence tied Decapite to a series of attempted break-ins or robberies between September 6 and October 7, 2007 at a hotel and four local restaurants.
- Co-defendants testified and implicated Decapite; Damore testified that Decapite and Jason White intended to enter restaurants and used Damore to distract managers.
- Police recovered safes, a cash drawer, and bank bags at Decapite’s trailer during a later search; Decapite fled to Virginia and was eventually arrested.
- Decapite raised ineffective assistance claims, arguing trial counsel failed to object to preliminary jury instructions, failed to challenge admission of certain evidence, and failed to preserve issues related to a search warrant affidavit and a co-defendant’s videotaped statement.
- The appellate court affirmed on all grounds, finding no reversible error and ruling that the evidence against Decapite was overwhelming.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance from not objecting to preliminary instructions | Decapite claims omissions in burden of proof, reasonable doubt, and presumption of innocence pretrial prejudiced him. | Decapite's trial counsel was deficient for not objecting to improper preliminary charges. | No reversible error; corrective at closing sufficed; no prejudice shown. |
| Admission of extrinsic crimes evidence without Williams hearing | State failed Williams hearing and admission violated rules. | Evidence (cards from safes) connected Decapite to crimes; no Williams hearing required. | Admission proper; no ineffective assistance. |
| Admission and publication of search warrant and affidavit | Hearsay in affidavit improper; continuing witness rule violated by publication to jury. | Pretermitted objection; publication could prejudice trial. | Harmless error; overwhelming evidence supported conviction. |
| Admission of co-defendant Arnold's videotaped statement | Prior consistent statement bolstered credibility via hearsay. | Cumulative and improper bolstering; prejudice possible. | No prejudice; substantial other evidence tied Decapite to crimes. |
Key Cases Cited
- Clark v. State, 141 Ga. App. 257 (1977) (pre-evidentiary jury charges not mandatory; must be correct if given)
- Griffith v. State, 264 Ga. 326 (1994) (OCGA 5-5-24(b) comprehensive instruction required toward end of trial)
- OCGA § 5-5-24(b) discussion in Little v. State, 230 Ga. App. 803 (1998) (instructions at close of evidence govern; pre-evidence charges not required)
- Williams v. State, 261 Ga. 640 (1991) (necessity of Williams hearing for similar-acts evidence)
- Scott v. State, 248 Ga. App. 542 (2001) (weight of evidence goes to admissibility, not necessarily separate hearing)
- Tanner v. State, 259 Ga. App. 94 (2003) (continuing witness rule restricts publishing writings to jury; reliance on cumulative testimony)
- Parnell v. State, 280 Ga. App. 665 (2006) (harmless error standard when proper evidence supports guilt)
- Razor v. State, 259 Ga. App. 196 (2003) (consideration of strength of remaining evidence in harmless error analysis)
- Kent v. State, 245 Ga. App. 531 (2000) (limitations on admissible statements; harmless where other proof exists)
- Fuller v. State, 277 Ga. 505 (2004) (ineffective assistance analysis requires showing prejudice)