BROWN v. THE STATE
A15A0328
Court of Appeals of Georgia
JUNE 29, 2015
774 SE2d 708
ELLINGTON, Presiding Judge.
(Punctuation and footnote omitted.) Helton v. State, 268 Ga. App. 430, 432 (2) (602 SE2d 198) (2004). If Lee could complain that the State failed to comply with the order granting the motion to suppress, he cannot show prejudice because the other evidence of his identity was overwhelming. See Snider v. State, 200 Ga. App. 12, 13 (1) (406 SE2d 542) (1991) (If testimony as to the identification of the defendant at the showup should not have been allowed, any error was harmless in the context of the remaining identification testimony.). Accordingly, Lee shows no grounds for reversal.
Judgment affirmed. Dillard and McFadden, JJ., concur.
DECIDED JUNE 29, 2015.
Jennifer A. Trieshmann, for appellant.
Paul L. Howard, Jr., District Attorney, Lori L. Canfield, Assistant District Attorney, for appellee.
ELLINGTON, Presiding Judge.
A Walton County jury found Isaac Brown guilty of aggravated assault,
Viewed in the light most favorable to the jury‘s verdict,1 the record shows that, on November 14, 2011, Brown and his brother, Abraham, assaulted Mario Fambrough. Fambrough testified that he was standing outside his uncle‘s home with a friend, talking on his cell phone, when the Brown brothers walked up to him. Both Fambrough and his friend, Jarvaris Brake, testified that the brothers pulled out handguns and pointed them at Fambrough. Brake fled inside the house while the brothers pistol-whipped Fambrough until he surrendered his wallet.2 Fambrough‘s uncle testified that he saw two men beating his nephew but that he did not see their faces. As a result of the assault, Fambrough suffered facial lacerations and a swollen eye. Brown, who elected to testify in his defense, contended that he and Fambrough had gotten into a fight over a drug deal and that he had been unarmed.
After Fambrough had been treated for his injuries, the responding police officers took him into custody on an outstanding warrant for a probation violation. The police put Fambrough in a holding cell that was also occupied by Brown‘s other brother, David, who had been arrested the day before and was not involved in the assault. Fambrough complained to David about what David‘s brothers had done to him. Fambrough testified that, after he had been released from jail, David called him from the jail and told him that his mother would pay him to tell the police that his brothers were not involved in the assault. A recording of that conversation was admitted in evidence and played for the jury.
The State also presented the testimony of Antonio Phillips, a person who had been incarcerated in the same cell block in the Walton County jail with Brown while Brown was awaiting trial. Phillips testified that he knew Fambrough and the Brown brothers. He said that Fambrough had once hit him with a brick, and that Brown was aware that he and Fambrough had fought. He testified that Brown had approached him while they were in jail and had spoken with him briefly about Brown‘s upcoming trial, telling Phillips that his lawyer would be contacting him. A few weeks later, a trustee handed Phillips a letter addressed to “Young Gun,” which is Phillips’ nickname. The trustee said the letter was from “Trip,” which is Brown‘s nickname. The trustee also pointed toward Brown, who was standing a short distance away. A corrections officer took the letter from Phillips before he could finish reading it. In his unsigned letter, Brown urged Phillips to testify that he had witnessed an altercation and to testify that Brown and his brother had been unarmed. The letter contained all the details Phillips would need to fabricate his eyewitness testimony: the date and time of the incident, the location, the names of all those present, and how the altercation had allegedly occurred. In the letter, Brown pleaded: “I need your help bad. . . . [The prosecution is] talking [a]bout a 30 do 18 [sentence]. . . . I‘ll see if my lawyer will come see you soon[.]”
1. Brown contends the trial court erred in admitting the recorded telephone call between David and Fambrough, arguing that David‘s statements about his mother‘s offer to pay Fambrough to tell the police that his brothers were not involved in the assault constituted inadmissible hearsay. The transcript shows that Brown made a general hearsay objection to the recording, which the court summarily overruled. Because the statements were nonhearsay, we find no error in the court‘s ruling on the objection.
Whether an out-of-court statement is hearsay depends on whether it is offered for its truth or merely for the fact that it was made. Where the alleged fact is only so if the substance of the statement is the truth, the statement constitutes hearsay. On the other hand, where the alleged fact may be so regardless of whether the statement is true or false, the statement is not hearsay.
(Citation omitted; emphasis supplied.) United States v. Webster, 649 F2d 346, 349 (III) (5th Cir. 1981).4 See also Graham v. State, 331 Ga. App. 36, 39 (2) (769 SE2d 753) (2015) (” [T]estimony did not constitute hearsay because the state did not offer the words for the truth of their content.“) (citation and punctuation omitted).
In this case, the statements are not hearsay because the State offered them for a purpose that did not require the jury to assume that the substance of the statements was true. Here, the evidentiary “facts” that the State offered the statement to prove are that David had conveyed to Fambrough an offer to buy his testimony and that Fambrough had rejected it. Those facts do not depend on whether David was telling the truth about whether he or his mother would actually pay Fambrough to give testimony favorable to Brown. Rather, David‘s statements were significant because they had been made and because they were likely to have had an effect on the hearer, Fambrough. The jury could infer from the conversation that Fambrough was a more credible witness for having rejected the offer. Because the evidentiary value of the statements did not rest upon
whether the declarant was being truthful or honest, the trial court did not err in overruling Brown‘s general objection to the statements on hearsay grounds. See Graham v. State, 331 Ga. App. at 39 (2) (testimony concerning an out-of-court statement was not offered for its truth, but to explain its effect on those who heard the statement and their subsequent conduct, and was, therefore, admissible as nonhearsay). See also United States v. Hanson, 994 F2d 403, 406 (7th Cir. 1993) (“An out of court statement that is offered to show its effect on the hearer‘s state of mind is not hearsay.“) (citations omitted).
2. Brown contends that his trial counsel was ineffective for failing to object on hearsay grounds to Phillips’ testimony that, when the prison trustee handed him the letter, the trustee pointed to Brown and said that the letter was from Brown. He argues that the trustee‘s gesture and statement were the only evidence establishing that the letter was from Brown and that, had counsel interposed a hearsay objection, the letter would not have been authenticated and admitted in evidence.
In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel‘s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel‘s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)[.] The criminal defendant must overcome the strong presumption that trial counsel‘s conduct falls within the broad range of reasonable professional conduct.
(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). See also Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009) (In analyzing
Pretermitting whether the trustee‘s statement and gesture identifying Brown as the letter‘s author constituted hearsay to which trial counsel should have interposed an objection, Brown can show no harm as a result of the failure to object because the letter was sufficiently authenticated by other admissible evidence.
The State was required to properly authenticate Brown‘s letter as a condition precedent to its admissibility.
Even absent Phillips’ testimony as to the trustee‘s statements and gestures indicating that the letter was from Brown, the State presented sufficient evidence establishing a prima facie case from which the jury could infer that the letter was from him. It is apparent from the contents of the letter—which included names, places, dates, times, and other details of the incident—that only someone with great familiarity with the incident could have written it. The letter was written in the first person and implored Phillips to help “us,” “the triplets,” which was the nickname for Brown and his brothers. That the author was Brown could be inferred from those details, as well as the statements: “[The prosecution is] talking [a]bout a 30 do 18 [sentence]. . . . I‘ll see if my lawyer will come see you soon[.]” Brown had spoken to Phillips concerning his upcoming trial and told him that his lawyer would be contacting him soon, and those prior conversations were consistent with the statements in the letter. Also, when Phillips received the letter from the trustee, Brown was standing a short distance away, looking at Phillips. Brown was the only one of the three brothers incarcerated in Phillips’ cell block. Given this evidence, Brown has failed to establish that a hearsay objection would have resulted in the letter being excluded on the ground of insufficient authentication. See United States v. Mentor, 570 Fed.Appx. 894, 897 (II) (11th Cir. 2014) (A letter was held to be sufficiently authenticated when the witness testified that the defendant, her ex-boyfriend, was the only person who would be sending her a letter, and the contents indicated that it was from him. It contained references to her, her brother, her best friend, and other key details leading her to identify the defendant as the author.); see also Foster v. State, 294 Ga. 383, 385 (3) (754 SE2d 33) (2014) (“Under all of [the facts adduced], it is very unlikely that anyone other than [Foster] had written the letter. Accordingly, the circumstances were sufficient to make a prima facie showing of authenticity.“) (punctuation omitted); Williams v. State, 280 Ga. at 587 (2) (“Johnson testified that Williams threw the note at him while Johnson was near Williams’ cell, and that the note was
Under the circumstances present in this case, even if Phillips’ testimony concerning the trustee‘s statement and gesture indicating that Brown had written the letter constituted inadmissible hearsay, the erroneous admission of those statements was harmless when the jury would have been able to infer that Brown had written it from the sufficiently authenticated and admissible letter itself. Because the alleged hearsay was cumulative of other evidence of the letter‘s authorship, it was without material effect on the verdict. See Skinner v. State, 318 Ga. App. 217, 219 (1) (733 SE2d 506) (2012) (admission of hearsay evidence harmless where it was cumulative of admissible evidence); Moody v. State, 277 Ga. 676, 680 (4) (594 SE2d 350) (2004) (accord). And “the failure to object to evidence which is merely cumulative of other admissible evidence does not amount to ineffective assistance of counsel.” (Punctuation and footnote omitted.) Ashmid v. State, 316 Ga. App. 550, 558 (3) (b) (730 SE2d 37) (2012). Consequently, the trial court did not err in denying Brown‘s motion for a new trial on ineffective assistance of trial counsel grounds.
Judgment affirmed. Dillard and McFadden, JJ., concur.
DECIDED JUNE 29, 2015.
S. Cindy Wang, for appellant.
Layla H. Zon, District Attorney, W. Cliff Howard, Assistant District Attorney, for appellee.