300 Ga. 593
Ga.2017Background
- Tamario Wise was tried for a spree of crimes (90-count indictment) including malice murder, armed robbery, rape, kidnapping, and related offenses; jury convicted him of malice murder and multiple other counts; sentence included life without parole plus additional consecutive sentences.
- The murder victim, Charles Boyer, was shot during an armed robbery outside an apartment; Wise, co-defendant Robert Veal, and co-indictee Raphael Cross arrived and left in a black Toyota Highlander; Cross testified he stayed in the car during the shooting.
- An armed home invasion of Hannibal and Angela Heredia’s home occurred five days later; victims were tied up and jewelry (including Angela’s wedding ring), electronics, phones, and an Audi were stolen; the Audi and phones were later tracked to an address tied to co-defendant Fernando Whatley.
- Whatley gave a videotaped confession implicating himself and stating he assisted Wise; his statement provided specific corroborating details and was played at trial after Whatley recanted; Heredia’s testimony corroborated Whatley’s account though he did not positively identify his assailants by name.
- Forensic and investigatory links included: Boyer’s missing phone traced to the abandoned black Highlander (stolen by Wise earlier), and a cigar butt in the SUV tested positive for Wise’s DNA; MetroPCS records were introduced to show cell-tower pings for a phone associated with Wise.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for armed robbery count (theft of Angela Fox’s wedding ring) | Wise: conviction unsupported because Angela Fox was never identified by name at trial; Heredia didn’t name his wife | State: Detective Velasquez identified Angela Fox as a victim at the scene; Whatley’s confession and Heredia’s account corroborate the theft | Conviction upheld; evidence sufficient to support the count under Jackson v. Virginia standard |
| One-on-one identification conducted by co-defendant’s counsel | Wise: the courtroom questioning amounted to an impermissibly suggestive one-on-one showup | State: witness (Craven) never identified assailant and counsel only asked about similarity in height; voir dire limited the inquiry | No error; questioning did not produce an identification and in fact aided Wise’s defense by undermining witness credibility |
| Prosecutor’s remark that Veal admitted to a rape during closing | Wise: improper comment about co-defendant’s admission when co-defendant did not testify violated rules against introducing non-testimonial admissions | State: prosecutor was repeating defense counsel’s opening; plus independent evidence (Veal’s DNA match and Cross’s testimony) supported the assertion | No error; comment restated defense counsel’s statement and was supported by evidence; jury admonition sufficed |
| Admissibility of cell phone tower records (Melendez-Diaz challenge) | Wise: cell-site records inadmissible under Melendez-Diaz Confrontation Clause principles because presumptively testimonial out-of-court statements | State: records were compiled by MetroPCS custodian (Bosillo), who testified and was cross-examined about methods and tower locations | No error; Melendez-Diaz inapplicable because the records’ custodian testified at trial and was subject to cross-examination |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence review)
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (Confrontation Clause concerns about absent forensic affiants)
- Crawford v. Washington, 541 U.S. 36 (testimonial statements and Confrontation Clause framework)
- Butler v. State, 290 Ga. 412 (discussing suggestiveness of one-on-one showups)
- Morgan v. State, 267 Ga. 203 (permissible scope of argument—deductions in closing may be drawn from evidence)