COLZIE v. THE STATE
S11A0425
Supreme Court of Georgia
DECIDED APRIL 18, 2011
(710 SE2d 115)
CARLEY, Presiding Justice.
4. As noted above, see footnote 1, supra, the jury‘s guilty verdict on the offensе of felony murder predicated upon burglary with intent to commit a felony (Count 3) was vacated by operation of law, see Malcolm v. State, 263 Ga. 369 (4) (434 SE2d 479) (1993), and the guilty verdict on the underlying felony of burglary with intent to commit a felony (Count 6) was factually merged by the trial court, as it was authorized to do. See id. at 374 (5). Accordingly, appellant cannot show that he was harmed by the asserted error in the trial court‘s instructions to the jury as to burglary with intent to commit a felony. See Mezick v. State, 291 Ga. App. 257 (3) (661 SE2d 635) (2008) (defendant cannot show harm from error in instruction regarding offense the trial court at sentencing merged into another conviction).
Judgment affirmed. All the Justices concur.
DECIDED APRIL 18, 2011.
Cromwell & Hibbert, Henry A. Hibbert, for appellant.
Paul L. Howard, Jr., District Attorney, Paige R. Whitaker, Arthur C. Walton, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, David A. Zisook, Assistant Attorney General, for appellee.
S11A0425. COLZIE v. THE STATE.
(710 SE2d 115)
CARLEY, Presiding Justice.
After a jury trial, Matthew Cоlzie was found guilty of the malice murder of Torrence Brown, attempted armed robbery, and possession of a firearm during the commission of a felony. The trial court entered judgments of conviction on those guilty verdicts and sentenced Colzie to life imprisоnment for murder, a concurrent term of five years for attempted armed robbery, and a consecutive five-year term for the weapons charge. A motion for new trial was denied, and Colzie appeals pursuant to the grant of an out-of-time аppeal.*
Colzie attacks the credibility of Johnson and of another witness, and also argues that there was no forensics evidence such as DNA, fingerprints, or gunshot residue and that the murder weaрon was not recovered.
“We do not determine the credibility of eyewitness identification testimony. Rather ‘the determination of a witness’ credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury.’ ” (Cit.)
OCGA § 24-4-8 provides that “(t)hе testimony of a single witness is generally sufficient to establish a fact.” [Cit.]
Reeves v. State, 288 Ga. 545, 546 (1) (705 SE2d 159) (2011). Moreover, Johnson‘s testimony was corroborated by other evidence, including certain cell phone records and testimony indicating that he remained in his vehicle during commission of the crimes.
Colzie further argues that, whether or not his guilt was proved beyond a reasonable doubt, the evidence was sufficiently close to warrant the trial court to exercise its discretion in granting a new trial. However, “[t]he appellate courts do not have the same discretion to order new trials as is granted to trial courts in
“Whether an appellant is asking this court to review a lower court‘s refusal to grant a new trial or its refusal to grant a motion for directed verdict, this court can only review the case under the standard espoused in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict. (Cit.)” [Cit.]
2. Colzie contends that the trial court erred by permitting the lead detective to testify to the contents of out-of-court statements given to him by four State‘s witnesses.
With respect to three of the witnesses, Colzie raised оnly a hearsay objection.
The superior court overruled the hearsay objection, because the persons who had made the out-of-court statements were witnesses in the case who remained available for cross-examination. On appeal, [Colzie] argues that the [detective‘s] testimony improperly bolstered the credibility of the witnesses who made the out-of-court statements. [Cit.] . . . [H]owever, . . . where a party objects to evidence only on grounds of hearsay, an objectiоn on the ground of improper bolstering has been waived. [Cit.]
Moore v. State, 280 Ga. App. 894, 897 (4) (635 SE2d 253) (2006). See also Talley v. State, 269 Ga. App. 712, 714 (4) (605 SE2d 108) (2004).
Johnson was the other witness whose out-of-court statements were admitted through the detective‘s testimony and which Colzie claims constituted improper bolstering because they were not admissible аs prior consistent statements. However, when the prosecutor asked the detective what he learned from his interview with Johnson, defense counsel objected not only on hearsay grounds, but also on the ground of improper bolstering. Thus, it is clear that thе issue which Colzie raises on appeal has not been waived. Compare Moore v. State, supra; Talley v. State, supra.
After the trial court overruled the defense objection, the detective repeated Johnson‘s out-of-court statements, effectively summarizing much of Johnson‘s earlier testimony. The State argues that the prior statements were properly admitted because Johnson‘s credibility had been attacked. ” ’ “(A) witness‘s veracity is placed in issue so as to permit the introduction of a prior consistent statement only if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination.” (Cits.)’ [Cit.]” Moon v. State, 288 Ga. 508, 511 (4) (705 SE2d 649) (2011). On cross-examination, Johnson was asked whether he had told defense
A review of the transcript shows . . . that the import of the cross-examination of [Johnson] was that portions of his testimony on direct were inconsistent with what he had told defense cоunsel in an earlier interview. Thus, the suggestion was that . . . [Johnson‘s] inculpatory trial testimony lacked veracity and had been fabricated since his interview with [Colzie‘s] attorney.
Blackmon v. State, 272 Ga. 858, 859 (2) (536 SE2d 148) (2000). See also Hall v. State, 287 Ga. 755, 758 (3) (699 SE2d 321) (2010); Dorsey v. State, 252 Ga. App. 33, 34 (1) (555 SE2d 498) (2001). Therefore, the cross-examination of Johnson constituted the requisite attack on his veracity. ” ‘To be admissible to refute the allegation of recent fabrication, improper influence, or improper motive, the prior statement must “predate the alleged fabrication, influence, or motive.“’ [Cit.]” Mister v. State, 286 Ga. 303, 306 (4) (687 SE2d 471) (2009). In this case, the alleged recent fabrication occurred within the week preceding trial, which clearly was after Johnson made the prior consistent statements to the detective. See Davis v. State, 303 Ga. App. 799, 802 (5) (694 SE2d 381) (2010). Accordingly, the trial court did not err in allowing the detective to testify regarding those statеments. Hall v. State, supra; Blackmon v. State, supra; Davis v. State, supra.
3. Colzie urges that the trial court erred by excluding the testimony of his investigator that Johnson had pending felony charges.
“A witness cannot be impeached by instances of specific misconduct unless that misconduct has resulted in the conviction of a crime. . . .” McClure v. State, 278 Ga. 411, 413 (3) (603 SE2d 224) (2004); see also
OCGA § 24-9-84.1 (a) (1), (3) (authorizing impeachment of a witness with evidence of any crime involving dishonesty or false statement, or a felony); [cit.]
Noellien v. State, 298 Ga. App. 47, 49-50 (3) (a) (i) (679 SE2d 75) (2009). A criminal defendant does have ” ‘the right to cross-examine a witness concerning pending criminal charges against the witness for purposes of exposing a witness’ motivation in testifying, e.g., bias, partiality, or agreement between the government and the witness. (Cits.)’ ” Mays v. State, 279 Ga. 372, 373 (2) (613 SE2d 612) (2005). However, defense counsel never attempted to cross-examine Johnson in this manner.
In order to prevail on a claim of ineffective assistance of counsel, a convicted defendant must show that counsel performed deficiently and that the deficient performance prejudiced the defendant such that a reasonable probability exists that, but for counsel‘s errors, the outcome of the trial would have been different. [Cit.]
Allen v. State, 286 Ga. 392, 398 (5) (687 SE2d 799) (2010). See also Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Upon appellate review of that claim, “we accept the trial court‘s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. [Cits.]” Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000). Trial counsel testified at the hearing on the motion for new trial that Johnsоn had pending misdemeanor charges and a dead-docketed felony charge but that she did not know the proper way to impeach him therewith. However,
[w]here the defendant cannot show evidence of a deal or any hope of a deal between the witness and the State, the trial court does not err in prohibiting the defendant from impeaching the witness with impermissible character evidence. [Cit.] In this specific case, even if we assume that the dead-docketed charge[] against [Johnson was] still “pending” at the time of [Colzie‘s] trial, there was still no evidence of any deal or potential deal between [Johnson] and the State in exchange for his testimony against [Colzie].
Sapp v. State, 263 Ga. App. 122, 123-124 (587 SE2d 267) (2003). Thus, no evidence was presented on motion for new trial to show thаt the trial court would have allowed “cross-examination regarding this subject. Consequently, neither deficient performance by counsel nor prejudice to [Colzie] has been shown.” Parks v. State, 240 Ga. App. 45, 47 (2) (a) (522 SE2d 532) (1999).
4. Colzie also enumerates as error the trial court‘s failure to give а jury charge on the reliability of eyewitness identification.
At the charge conference, the trial court declined to give Colzie‘s requested charge on eyewitness identification and stated that it would give the pattern charge. However, the pаttern charge was omitted inadvertently. After the trial court finished charging the jury, Colzie did not object to that omission, and instead objected only
Moreover, we find no reversible error, much less any “plain error” pursuant to
Judgments affirmed. All the Justices concur, except Nahmias, J., who concurs specially.
NAHMIAS, Justice, concurring specially.
For the reasons given in my special concurrence in Collier v. State, 288 Ga. 756 (707 SE2d 102) (2011), I believe that
DECIDED APRIL 18, 2011.
Cromwell & Hibbert, Henry A. Hibbert, for appellant.