Appellant D’Andre Theophlouis Carter was convicted of malice murder and associated crimes in connection with the shooting death of Dequavious Reed.
Viewing the evidence in a light most favorable to the verdicts, the evidence presented belоw established as follows. On July 11, 2013, Reed was discovered dead on the floor of his residence, with his pants pulled down and his shirt pulled up to his neck; he had been shot twice. Jayvias Lott, who had been arrested for armed robbery and other assorted crimes unrelated to the murder, had heard details concerning the crime and agreed to wеar a secret recording device in order to obtain a statement from Carter. As agreed, Lott later recorded a conversation he had with Carter and a third party, Kavozeia Walker. In the recorded conversation, Carter recounts the events of Reed’s murder, explaining that: he and his two brothers, Ciaron and C. J., went to Rеed’s residence under the pretense of purchasing drugs; after pretending to leave, the trio reversed course, and Ciaron shot the victim twice; Carter watched Reed die; the trio rifled through Reed’s pockets, searched his residence, and stole marijuana and several hundred dollars; and, the murder weapon was thrown into а nearby pond.
At trial, Lott testified regarding his conversation with Carter, and the recorded conversation was played for the jury Finally, the State presented evidence that a firearm, later identified as the murder weapon, was discovered in a local pond.
1. The evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Carter was guilty of the crimes of which he was convicted. See Jackson v. Virginia,
2. Though Lott testified at trial, Walker did not, and Carter asserts that the trial court erred in admitting Walker’s portion of the recorded conversation. Specifically, Carter argues that Walker’s portion of the conversation was irrelevant under OCGA § 24-4-402, that it was inadmissible hearsay under OCGA § 24-8-801, and that the admission of Walker’s portion оf the conversation violated Carter’s right to confrontation. We find no error.
The recording in question reflects that Walker entered the conversation shortly after Carter and Lott began to speak, and some of the more meaningful exchanges between the three men include the following:
WALKER: What are y’all taking about?
CARTER: . . . Quay. Yeah.
WALKER: What? Let me tell you about this s***. That m*****f***** there just haVe got everything in this b**** pockets, bro. In his pockets. They didn’t even go through the house.
CARTER: Cuz, you tripping, bro.
WALKER: They ain’t even go through the house.
CARTER: That’s what we did. But I knew what the f*** I was doing. Because if we would have stayed a little bit longer, we would have got caught.
WALKER: True. True. True.
LOTT: What y’all got?
CARTER: S***. I got money and dope.
LOTT: How much money?
WALKER: Two hundred.
CARTER: H*** no. You a d*** liar. I got that by myself. Me and Ciaron had three hundred, and C. J. had about two hundred.
WALKER: I seen them. I was sitting on the porch. I seen Dre coming up the roаd. He done whipped that bit behind Tip’s house. I say, “oh, they done did it” — Ciaron say, “I shot his a**.” I said “b**** stop b*lls****ing.” That bit got blood all on him, I said, man that n***** was tripping, cuz.
CARTER: I didn’t see it. I didn’t even know.
LOTT: What did you do, hold him or something?
CARTER: No, I went in his pockets. I was the one who went in his pockets.
LOTT: When he was alive?
WALKER: When he was dying. Because he was . . .
CARTER: No. I watched it.
WALKER: C. J. said he was dead before he hit the floor.
CARTER: No, man, C. J. wasn’t even in the f***ing house.
LOTT: Oh man. Come on. What I’m saying when he was trying to buck, what the h***, y’all — cuz panic or something?
CARTER: No, bro. I told lil bro.
WALKER: It was planned.
CARTER: Hunh?
WALKER: It was planned.
CARTER: It was planned.
The recording and transcript were admitted over cоunsel’s objection, and the jury was instructed that they were not to consider Walker’s statements as evidence of Carter’s guilt. We now review the trial court’s ruling on the admissibility of this evidence for abuse of discretion. See Adkins v. State,
(a) Relevancy and Its Limits
“All relevant evidence [is] admissible.” OCGA § 24-4-402. Under OCGA § 24-4-401, “relevant evidence” is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without
Without citation to anything more than the rеlevancy statutes, Carter argues that the State has failed to demonstrate that Walker’s portion of the recorded conversation was relevant. At most, Carter suggests that, because the jury was instructed to “ignore” Walker’s portion of the conversation, his statements were necessarily irrelevant; however, this argument is both prеmised on an incorrect assessment of the trial court’s instruction and illogical. Though the trial court instructed the jury not to consider Walker’s portion of the conversation “as evidence of guilt of the accused” or “for the truth of the matter asserted,” the jury was not instructed to ignore Walker’s statements. Likewise, simply because the jury was instructed not to consider the substance of Walker’s statements it does not follow that his portion was irrelevant; Walker’s comments were necessary to provide context and clarity to Carter’s responses, and the conversation as a whole was very relevant to the primary issue before the jury, namely Carter’s guilt.
Neverthеless, “[rjelevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” OCGA § 24-4-403. As we have noted before, the primary purpose behind Rule 403 is to “exclud(e) matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.” (Citation and punctuation omitted.) Hood v. State,
Carter asserts, without exposition, that Walker’s statements in the recorded conversation “were unfairly prejudicial, confusing and misleading.” However, “[sjimply because the evidence is damaging or prejudicial to a defendant’s case does not mean . . . that the evidence should be excluded.” United States v. Terzado-Madruga, 897 F2d 1099, 1119 (11th Cir. 1990). Under Rule 403, the extraordinary remedy of exclusiоn requires that the danger of unfair prejudice, confusion, or misleading the jury substantially outweigh the probative nature of the evidence. Walker’s portion of the conversation, however, is not of such scant evidentiary value that it would be so outweighed, and it certainly was not introduced solely for its unfair prejudicial impact. Accordingly, the trial сourt acted within its discretion to conclude that Walker’s portion of the recorded conversation was relevant.
(b) Hearsay and Confrontation Clause
Carter also argues, again citing to little meaningful authority, that Walker’s portion of the conversation was inadmissible hearsay and that the admission of Walker’s portion of the conversation ran afoul of thе Confrontation Clause. We disagree.
“ ‘Hearsay’ means a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” OCGA § 24-8-801 (c). Thus, an out-of-court statement is not hearsay if it is offered for some purpose other than to prove the truth of the matter asserted. United States v. Parry, 649 F2d 292, 295 (5th Cir. 1981). Here, Walker’s portion of the conversation was not offered to prove the truth of the matter asserted. Instead, the State adduced Walker’s statements to provide the jury with a complete, coherent conversation and to give context to Carter’s inculpatory statements; the import of Walkеr’s portion of the conversation is not derived from its substance or accuracy but, instead, from Carter’s responses thereto.
Finally, with respect to Carter’s confrontation clause argument, even if we were to assume that Walker’s recorded statements are testimonial, an assumption that is highly questionable, see, e.g., Davis v. Washington,
3. During trial, the trial court also admitted a 45-second recorded telephone call that was initiated by Carter while he wаs in pretrial detention; the recorded telephone call captured Carter’s voice and laughter, and it was admitted under the business-record exception to the hearsay rule through the testimony of Lt. Walter James, an assistant jail commander. On appeal, Carter argues, inter alia, that the recording was inadmissible hearsay that does not fall within the business-record exception, that Lt. James’ testimony concerning Carter’s calling card was inadmissible, and that the State failed to authenticate the recorded call under OCGA §§ 24-9-901 and 24-9-923. There is no reversible error.
Carter first argues that the telephone recording is inadmissible hearsay and that it does not fall within thе business-record exception to the hearsay rule. See OCGA § 24-8-803 (6). As Carter himself acknowledges on appeal, however, the recording was admitted “to allow the jury to compare the laughter and voice on the telephone recording with the Lott recording,” and, thus, it was not offered to prove the truth of the matter asserted. Accordingly, the recorded teleрhone conversation is not hearsay, see, e.g., OCGA § 24-8-801 (c), and, as such, it is immaterial whether the conversation falls within the business-record exception. Consequently, Carter’s argument that the recording was inadmissible hearsay is without merit.
Carter’s remaining arguments — that Lt. James’ testimony concerning the calling card was inadmissible and that the State failed to authenticate the recorded telephone call under OCGA §§ 24-9-901 and 24-9-923 — are being asserted for the first time on appeal, and, thus, are not preserved for appellate review.
In State v. Kelly,
First, there must be an error or defect — sоme sort of “[deviation from a legal rule” — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary casе means he must demonstrate that it “affected the outcome of the [trial] court proceedings.” Fourth and finally, if the above three prongs are satisfied, the [appellate court] has the discretion to remedy the error — discretion which ought to be exercised only if the error “ ‘seriously affect[s] the fairness, integrity or public reputatiоn of judicial proceedings.’ ”
(Citations omitted; emphasis in original.) Kelly,
Even if we were to presume that Carter satisfied the first and second prongs of the Kelly test, there is no plain error here because he has failed to meet his burden under the third prong. It is undisputed that the brief recording includes nothing more than a portion of a random conversation which was adduced by the State to allow the jury to compare the voice and laugh on the telephone call with the voice and laugh in the recorded conversation with Lott; nothing on the recording directly inculpated Carter, and trial counsel acknоwledged below that there was nothing objectionable concerning the content of the recording. Further, the recorded telephone conversation was not the only evidence connecting Carter with the recorded conversation with Lott. The jury heard testimony that the robbery-turned-murder was committedby Carter and his brothers; thе speaker in the recorded conversation with Lott makes numerous references to his brothers, calling them by name. Though the recorded telephone conversation helped the State connect Carter with the recorded conversation with Lott, a review of the record as a whole indicates that any errоr here did not affect the outcome of the proceedings. Kelly, supra.
Judgment affirmed.
Notes
In November 2013, a Coffee County grand jury indicted Carter and his twо brothers on the charges of malice murder, felony murder predicated on burglary, felony murder predicated on armed robbery, armed robbery, and first-degree burglary. Carter was tried alone, and, following a trial conducted May 12-13, 2015, a jury returned a guilty verdict on all counts. Carter was sentenced to life imprisonment without the possibility of pаrole for malice murder, 20 years’ imprisonment for armed robbery, and a consecutive 20-year sentence for burglary, for a total sentence of life without parole plus 40 years; the remaining counts were vacated by operation of law. Carter filed a motion for new trial on May 20, 2015, which was amended on March 14, 2016. Following a hearing, the trial court denied the amended motion on July 21, 2016; Carter subsequently filed a timely notice of appeal. This case was docketed to the April 2017 term and was thereafter submitted for decision on the briefs.
This Court has already reviewed and affirmed Ciaron Carter’s convictions and sentences. See Carter v. State,
We note that Walker’s statement indicating that Ciaron had admitted to shooting Reed was a fact independently established at trial and emphasized by the defendant.
See also United States v. Taylor,
Our conclusion that the recorded telephone conversation was not hearsay renders moot Carter’s argument that the State failed to “lay a propеr foundation” to show that the recording was a business record under OCGA § 24-8-803 (6).
While trial counsel argued below both that Lt. J ames was not the custodian of the phone records and that the recorded telephone conversation was inadmissible, trial counsel made no argument with respect to Lt. James testifying concerning the calling card numbers. Likewise, counsel never argued that the State failed to authenticate the recorded telephone conversations pursuant to OCGA §§ 24-9-901 and 24-9-923. Though counsel twice stated that he did not “think the State [could] lay a proper foundation,” the lack of specificity in that argument generally fails to preserve the argument fоr revie w, see Tolver v. State,