Bamberg v. StateBamberg v. State
After a 2009 jury trial, Damon Bamberg and his mother, Sonya Bamberg, were convicted of murder and other offenses arising out of the shooting death of Damon‘s ex-wife, Allison Nicole “Nikki” Bamberg.1 They appeal, asserting error in the reconstruction of a missing transcript of the first day of trial and in the denial of their
1. Construed in the light most favorable to the jury‘s verdicts, the evidence presented at trial showed that Damon and Nikki Bamberg had a contentious and violent marriage that ended in divorce.2 At the time of the events at issue here, the parties were separated, and Nikki was living in an apartment in Hazlehurst, in Jeff Davis County. Witnesses testified that, on several occasions, Damon was violent with both Nikki and his first wife. Nikki‘s friend and co-worker testified that Sonya told Nikki in the friend‘s presence, “I will see you dead before I let you have those boys,” referring to Damon and Nikki‘s two children. Two witnesses
On January 18, 2008, four days after the divorce became final, Nikki drove to a convenience store in Uvalda, in Montgomery County, to deliver the couple‘s two children for visitation. Damon and Sonya were in a distinctive car, a 1972 Chevrolet Chevelle with a skull and crossbones front license plate.3 Investigators from the Jeff Davis County Sheriff‘s Office and the GBI testified that the
Between 6:08 and 6:10 p.m., a motorist driving southbound on Highway 221 was just entering Jeff Davis County from Montgomery County when he saw a 1972 Chevrolet Chevelle with an unusual skull and crossbones front tag travelling northbound on Highway 221 at “at least” 80 to 90 miles per hour, with two adults in the front seat. As the motorist passed the substation south of the bridge, he saw a car with its dome light on and a leg sticking out of the open
Damon initially told a GBI investigator that, at the meeting at the convenience store, Nikki fought with him over the children‘s medication and injured his hand, and he went into the convenience store to get ice for his hand. Then, he said, he and his mother drove straight to the Montgomery County Sheriff‘s Office to report that Nikki had assaulted him, while Nikki drove off in the opposite direction, toward Hazlehurst.4 But while Damon was confined in the Jeff Davis County jail, he told another inmate, Don Ellis, that he and his mother had stopped to pick up the children at the store; that his wife had fussed at him, grabbed the diaper bag, and twisted his arm; that she left in her car and he and his mother pursued her, with his mother driving; that his wife “wouldn‘t pull over so he . . . shot at the car” and she then pulled over; that he walked up to the car and she was trying to crawl out the passenger side, so he shot
After Sonya was arrested and confined in the Jeff Davis County jail, she became friendly with inmate Burtis Taylor, who was due to be released. Shortly before Taylor‘s release, Sonya drew a map and instructed Taylor to retrieve a pistol from Damon‘s brother, as well as some magazines and casings that had been hidden in a chicken pen behind her house in Mount Vernon, to conceal them on another person‘s property, and then to inform law enforcement so that the other person would be blamed for the murder.
Acting on the information that some gun parts were buried behind Sonya‘s house, investigators from the Jeff Davis County Sheriff‘s Office and the GBI searched the area and found several magazines and other gun parts consistent with a Hi-Point brand .45 ACP pistol, as well as a box of Winchester brand .45 ACP caliber cartridges and bullets. Ejected shells found at the scene of Nikki‘s death, ejected shells found approximately four tenths of a mile down
(a) Damon challenges the sufficiency of the evidence to support his convictions, pointing to an apparent discrepancy between the timeline of events testified to by Jeff Davis County and GBI investigators and notations made in a handwritten log kept by a former Montgomery County Sheriff‘s Office dispatcher, whom the Bambergs called as a witness. Damon contends that because the evidence against him was “akin to” circumstantial evidence, the State therefore was required to exclude every reasonable hypothesis other than his guilt; and that as shown by the relevant times of entries in the handwritten log, he could not have committed the murder because the log showed that he was at the Montgomery
Both
Moreover, to the extent that Damon‘s convictions did depend upon circumstantial evidence, “this evidence need not exclude every conceivable inference or hypothesis; it must rule out only those that are reasonable. And it is principally for the jury to determine whether an alternative hypothesis is reasonable.” (Citations and punctuation omitted.) Id. Here, while the entries in the handwritten
it was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence. Likewise, it was for the jury to decide whether the defense theory that [an unknown assailant] was the killer was reasonable and not excluded by the other evidence. . . .
(Citations and punctuation omitted.) Wilson v. State, 295 Ga. 84, 85 (1) (b) (757 SE2d 825) (2014), disapproved on other grounds in State v. Orr, 305 Ga. 729, 735 n.5 (827 SE2d 892) (2019). Based upon this evidence, the jury was not required to find that Damon‘s hypothesis
(b) Sonya does not challenge the sufficiency of the evidence to support her convictions. However, as is this Court‘s practice in murder cases, we have reviewed the record to determine the legal sufficiency of the evidence. We conclude that the evidence presented at trial and summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Sonya was guilty of the crimes for which she was convicted. See Jackson v. Virginia, 443 U.S. at 319 (III) (B).
2. Both Damon and Sonya contend that the loss and subsequent reconstruction of the transcript of the first day of trial denied them their right to appeal. We conclude that the trial court followed the correct procedure for reconstructing the transcript under
The Bambergs’ joint trial took place over four days in August and September 2009, and a total of 38 witnesses testified. After the filing of the Bambergs’ initial motions for new trial, there was substantial delay in obtaining the transcript for various reasons, including continuances and two transfers of the case to new trial judges. After the transcript was delivered, the parties discovered that, due to an equipment malfunction, most of the first day‘s testimony had not been transcribed, and the Bambergs moved for a new trial on that basis. After the hearing on the motion for new trial was continued several times, and after an expert unsuccessfully attempted to recover data from the defective tapes, the State requested a hearing to reconstruct the missing testimony. The Bambergs objected and insisted upon a new trial.
On July 10, 2017, the trial court held a hearing and entered a detailed order setting out the procedure for reconstructing the record, relying upon
At the hearing, the State [m]ay subpoena and call all [f]ive witnesses from the first day of the trial. Additionally, the trial attorneys for both Defendants and the assistant district attorney who tried the case, and others present for the original trial, may be present in court to hear the testimony of the [f]ive witnesses and those individuals shall be called as witnesses after the [f]ive trial witnesses have testified to determine if they believe the testimony at the hearings was substantively the same testimony that was heard during the first day of the trial. After the [f]ive trial witnesses have testified and the trial counsel have testified as outlined above, this Court will determine if there is a dispute about whether the testimony is substantively the same testimony that was heard at the trial and [thereafter] rule on the State‘s Motion to Supplement the Record on Appeal.
The trial court also noted that “[t]he [f]ive witnesses whose testimony was lost, the judge who presided over the trial, the court reporter, and all trial attorneys are all alive and available to testify.”5
Despite the detailed guidelines provided by the trial court‘s order, the Bambergs called no witnesses, and neither the Bambergs’ trial counsel nor the original trial judge attended or testified. The Bambergs’ new attorneys (“appellate counsel“) very briefly cross-examined the State‘s witnesses but continued to insist that a new trial was the only remedy and that the State had the sole responsibility to perfect the record for appeal. The trial judge acknowledged that as a successor judge, he could have no recollection of the trial, but he found that the testimony at the hearing was substantively the same as that heard during the first day of trial and adequately supplemented the existing record. Relying upon Mosley and Glass v. State, 289 Ga. 542 (712 SE2d 851) (2011), the trial court held: “The transcript of the November 6, 2017 hearing having been filed; the Court hereby adopts this testimony and finds that the testimony supplementing the record was sufficient. The record is now complete.”
Subsections (f) and (g) of
(f) Where any party contends that the transcript or record does not truly or fully disclose what transpired in the trial court and the parties are unable to agree thereon, the trial court shall set the matter down for a hearing with notice to both parties and resolve the difference so as
to make the record conform to the truth. If anything material to either party is omitted from the record on appeal or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, on a proper suggestion or of its own initiative, may direct that the omission or misstatement shall be corrected and, if necessary, that a supplemental record shall be certified and transmitted by the clerk of the trial court. The trial court or the appellate court may at any time order the clerk of the trial court to send up any original papers or exhibits in the case, to be returned after final disposition of the appeal. (g) Where a trial is not reported as referred to in subsections (b) and (c) of this Code section or where for any other reason the transcript of the proceedings is not obtainable and a transcript of evidence and proceedings is prepared from recollection, the agreement of the parties thereto or their counsel, entered thereon, shall entitle such transcript to be filed as a part of the record in the same manner and with the same binding effect as a transcript filed by the court reporter as referred to in subsection (e) of this Code section. In case of the inability of the parties to agree as to the correctness of such transcript, the decision of the trial judge thereon shall be final and not subject to review; and, if the trial judge is unable to recall what transpired, the judge shall enter an order stating that fact.
These subsections, construed together, provide for the reconstruction of a missing transcript of the proceedings whether or not the parties agree as to the contents. And while “the correctness of such transcript,” as determined by the trial judge, is “final and
In Johnson, all of the court reporter‘s materials and tapes were destroyed in a house fire, and the entire transcript of a six-day trial was lost. We observed that the procedure used in Mosley, “calling witnesses who testified or other individuals who were present for the trial,” was an acceptable method of re-creating part of a lost trial transcript. 302 Ga. at 194 (3) (b). However, “[s]uch measures were not taken to re-create the transcript” in Johnson. Instead, the State apparently failed to interview and did not call any witnesses or observers, and appellant‘s counsel received no assistance from trial counsel, who died before the hearing. This “lackluster information-gathering process” produced only a brief narrative account of a six-day trial. 302 Ga. at 195 (3) (b). We concluded that because the entire
Here, in accordance with
In addition to testimony from all of the fact witnesses from the original trial, one of the original prosecutors confirmed that the witnesses testified consistently with their original trial testimony. Finally, the Clerk of Court identified her contemporaneous notes of the witnesses and their testimony as originally given at the trial. See, e.g., Leeks v. State, 296 Ga. 515, 517 (2) (769 SE2d 296) (2015).
The Bambergs only reluctantly and minimally participated in the reconstruction of the record. They did not present testimony from their trial counsel or the original trial judge, by affidavit or otherwise; they called no witnesses, and appellate counsels’ participation was minimal, limited to brief cross-examinations of the witnesses presented by the State. As the hearing began, the trial court asked the Bambergs’ appellate counsel who would be present to observe on the Bambergs’ behalf and to testify whether the witnesses’ new testimony was consistent with their trial testimony, in accordance with the trial court‘s order. Appellate counsel
On appeal, the Bambergs continue to insist that they had no obligation to participate and no burden to meet in the process of reconstructing the record, and that the transcript is still incomplete, as it does not include any objections, bench conferences, or rulings that may have occurred. Their contention that they may decline to participate without consequence, however, is incorrect. In Glass, this Court observed:
OCGA § 17-8-5 (a) requires the trial judge to ensure that the testimony in all felony trials is taken down. This code section clearly states that, in the event of a felony conviction, it is the duty of the state, at its own expense and through the agency of the presiding judge, to request the court reporter to transcribe the reported testimony. . . .However, . . . the State‘s duty to request the court reporter to transcribe the reported testimony in a felony conviction has no time limit and thus cannot relieve an appellant from a felony conviction of his statutory duty to cause the transcript to be prepared and filed as provided by
Code Section 5-6-41 . . . . Thus, where the transcript does not fully disclose what transpired in the trial court, the burden is on the complaining party to have the record completed pursuant toOCGA § 5-6-41 .
Once the State provided the testimony of all the original
3. Next, the Bambergs assert that the trial court erred in declining to reopen the evidence on their motions for new trial. “It is well settled that the decision to reopen evidence is a matter that rests within the sound discretion of the trial court.” (Citations omitted.) Walton v. State, 303 Ga. 11, 16 (4) (810 SE2d 134) (2018); see also Danenberg v. State, 291 Ga. 439, 443 (5) (729 SE2d 315) (2012).
After the hearing on the Bambergs’ motions for new trial, their appellate counsel filed motions to reopen the evidence. In Damon‘s motion, his appellate counsel declared that appellate counsel “decided to watch some of the news stories about the case just for entertainment purposes” and was “shocked” to discover a television
In little more than a single page of argument, Damon asserts that the “transcription” shows that the State violated Massiah v. United States, 377 U. S. 201 (84 SCt 1199, 12 LE2d 246) (1964), Bruton v. United States, 391 U. S. 123 (88 SCt 1620, 20 LE2d 476) (1968), Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963), Giglio v. United States, 405 U. S. 150 (92 SCt 763, 31 LE2d 104) (1972), Napue v. Illinois, 360 U. S. 264 (79 SCt 1173, 3 LE2d 1217) (1959), and Smith v. Zant, 250 Ga. 645 (301 SE2d 32) (1983). Sonya, in a somewhat lengthier argument, contends that the “transcription” establishes a “prima facie case” that the witness was acting on behalf of the government to elicit a confession from Sonya in violation of Massiah, and that the State might have failed to disclose this agency in violation of Brady and Giglio.
But we need not consider those questions, because the
4. Citing Crawford v. Washington, 541 U. S. 36 (124 SCt 1354, 158 LE2d 177) (2004), and Bruton v. United States, 391 U. S. 123 (88 SCt 1620, 20 LE2d 476) (1968), Damon asserts that the admission of Burtis Taylor‘s testimony that Sonya told Taylor that “she was in the vehicle when Damon actually done the shooting” violated his right to confrontation. However, when Taylor testified to Sonya‘s statement at trial, which took place in 2009 under the former Evidence Code, Damon did not object. Damon therefore failed to preserve this claim for review. See Grissom v. State, 296 Ga. 406, 411 (2) (768 SE2d 494) (2015). Cf. McKinney v. State, 307 Ga. 129, 133 (2) n.3 (834 SE2d 741) (2019) (holding that under new Evidence Code, failure to make Confrontation Clause objection at trial precludes ordinary appellate review, but plain error review is available).
5. Sonya lists nine different statements or rulings made by the trial court during trial and contends, for the first time on appeal, that these comments, taken as a whole, “could have been construed by the jury as an expression of opinion on the evidence and on the credibility of the State‘s witnesses, as well as a comment on the credibility of the defense witnesses.” Citing only a single decision of the Georgia Court of Appeals applying former
However, in relying upon Haymer, Sonya has overlooked the 2015 amendment to
Here, Sonya failed to object at trial to any of the statements now complained of, so a plain error analysis applies.
To establish plain error, Appellant must point to a legal error that was not affirmatively waived, was clear and obvious beyond reasonable dispute, affected his substantial rights, and seriously affected the fairness, integrity, or public reputation of judicial proceedings.
Hightower v. State, 304 Ga. 755, 759 (2) (b) (822 SE2d 273) (2018).
Sonya‘s brief simply asserts that the individual statements or rulings by the trial court violated former
a trial judge may propound questions to a witness to develop the truth of the case, to clarify testimony, to comment on pertinent evidentiary rules and to exercise its discretion when controlling the conduct of counsel or witnesses in order to enforce its duty to ensure a fair trial to both sides.
(Citation and punctuation omitted.) Benton v. State, 301 Ga. 100, 102 (3) (799 SE2d 743) (2017). “[A]nd the extent of such an examination is a matter for the trial court‘s discretion.” (Citation omitted.) Finley v. State, 286 Ga. 47, 51 (9) (a) (685 SE2d 258) (2009). Sonya has failed to demonstrate that the specified statements and rulings constituted errors that were “clear and obvious beyond reasonable dispute.” She therefore has failed to demonstrate plain error.13
Judgments affirmed. All the Justices concur.
Murder. Jeff Davis Superior Court. Before Judge Guy.
Rodney S. Zell, for appellant (case no. S19A1052).
Clare L. Nolan, for appellant (case no. S19A1054).
Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Thomas E. Buscemi, Jan Kennedy, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Mark S. Lindemann, Assistant Attorney General, for appellee.