Deal v. StateDeal v. State
David Eric Deal was convicted of kidnapping with bodily injury, aggravated battery and aggravated assault. He enumerates 15 errors on appeal.
This case arose during the victim’s early morning jog when Deal *80 ran up to her. As she activated her hand-held alarm, he grabbed her and struck her on top of her head with a length of rebar pipe. He continued beating her on her head, shoulders, chest and arms, striking at least 50 blows. Eventually, she fell, аnd he dragged her into some nearby woods where he started beating her again. The attack lasted approximately 15 minutes, at which point the man fled, leaving the victim bleeding and dazed.
Shortly after her release from the hospital, a police investigator presented the victim with a six-person photographic lineup. The victim immediately picked Deal’s brother, Kevin. After the investigator obtained an arrest warrant, he learned that Kevin was in a mental institution and that Deal, who lived in the vicinity of the attack, bore a marked family resemblance to Kevin. When Deal gave inconsistent stories about his actions at the time of the attаck, the investigator conducted a live lineup. The victim identified Deal. Held:
1. Deal enumerates as error the trial court’s denial of his motion to suppress evidence of the photographic lineups, presumably as impermissibly suggestive.
1
The dispositive question in resolving this issue is whether the procedure used resulted “ ‘in a very substantial likelihood of irreparable misidentification.’”
Montgomery v. State,
The record rеfutes Deal’s contention that he was taken into custody prior to the lineup on a pretextual arrest. The investigator testified that when he contacted Deal’s probation officer he learned she wаs about to secure a warrant on Deal for failure to report and requested that she advise him when she did.
2. Deal contends the trial court erred in denying his motion in limine seeking to suppress testimony of an inmate witness рresumably on the ground that his Sixth Amendment rights were violated *81 because the inmate, Warren Rhodes, was acting as an agent for the State when he elicited inculpatory statements from Deal. Deal sought to suppress his purported statement to Rhodes that he initiated the early morning attack with a pipe intending to drag the victim into the woods and rape her.
The record shows that Rhodes made the initial contact with the assistant distriсt attorney in charge of this case. At that time, he already had the information at issue. Rhodes testified that law enforcement had no knowledge of his talks with Deal and in no way instigated his actions. These facts refute Dеal’s argument.
Burgan v. State,
3. Deal maintains the trial court erred in admitting Rhodes’ testimony because it was perjured and self-serving. He bases this contention on another inmate’s testimony indicating that he saw Rhodes take some paperwork with Deal’s name on it from Deal’s locker. The other inmate, Conan Spence, testified that he then asked Rhodes if he was working on a lawsuit and Rhodes answered, “[N]o, ain’t a lawsuit, just some legal work . . . I’m hoping . . . will get me out of jail.” Notwithstanding Deal’s inference to the contrary, there is absolutely no evidence that the State knowingly used false testimony to obtain Deal’s conviction. Compare
Smith v. Zant,
4. The trial court did not abuse its discretion by denying Deal’s motion for continuance and/or change of venue based on purportedly prejudicial pretrial publicity.
Nor did the jury selection process show actual prejudice.
Moore,
5. Deal claims the jury was not fair and impartial because two members attended grade, middle, and high school with a defense witness, Amy Sheperd. These jurors did not respond when asked on voir dire whether they knew her. At the motion for new trial hearing, however, Deal presented Sheperd’s affidavit which stated that she knew the jurors. In light of Deal’s failure to present any evidence that the jurors at issue knew Sheрerd, notwithstanding her purported acquaintance with them, he failed to establish juror misconduct or any concomitant harm from the error alleged.
McLamb v. State,
6. Deal claims the trial court erred by refusing to ask the jury about its pоssible exposure to news accounts of the trial broadcast on the second day of trial. In declining, the court presumed that the jury had complied with its previous instruction to refrain from listening to trial coverage because Deal presented no evidence that this mandate had been violated. While the better practice in these circumstances would have been to question the jury about its media exposurе, reversal is not required. See, e.g.,
Guess v. State,
7. The trial court did not abuse its discretion in denying Deal’s motion for mistrial based upon prosecutorial overreaching and bad faith by attempting to prejudice the jury through the news media.
Edwards,
8. The trial court did not abuse its discretion in denying Deal’s motion for mistrial based upon the victim’s statement, made while identifying Deal, that he had “grown a mustachе since he’s been in jail.” See
Dorsey v. State,
9. The trial court did not abuse its discretion in allowing the State to use an old aerial photograph of the area surrounding the crime scene as demonstrativé evidence, particularly when the trial court gave cautionary instructions to the jury.
Harvey v. State,
10. Deal argues that the triаl court erred in permitting the State’s witness to draw power lines on the above-mentioned aerial photograph because there was insufficient evidence as to their correctness. Because Deal failed to challenge the accuracy of the lines in the trial court, we need not reach this issue.
McClain,
11. Deal mаintains the trial court erred in admitting a graphic and prejudicial photograph of the initial wound to the top of the victim’s head. Because the photograph was relevant to testimony regarding the nature аnd location of the victim’s injuries, we must reject this argument.
Sorrells,
12. Deal maintains the trial court erred in admitting a length of rebar found near the crime scene with what appeared to be blood and hair on it. We disagree.
Trial courts have broad discretion in the admission of evidence.
Parker v. State,
13. This same reasoning applies to Deal’s contention that the trial court erred in admitting a photograph of the above-mentioned rebar.
Parker,
14. Deal claims the trial court erred in denying his motion for directed verdict of acquittal. Because the appellate brief offers no grounds, argument, or citation of authority in support of this assertion, the enumeration is deemed abandonеd. Court of Appeals Rule 27 (c) (2).
15. Deal contends that his aggravated battery sentence merged with the sentence for kidnapping with bodily injury. The facts do not support this assertion. There was sufficient evidence for the jury to find that the aggravated battery was complete before Deal committed kidnapping with bodily injury. The aggravated battery concluded when Deal delivered the initial blow to the top of the victim’s head, a wound so seriously disfiguring that Deal objected to the admission of photographs depicting it.
Judgment affirmed.
Notes
This enumeration and several others do not clearly state the legal grounds of error. They simply state facts and then list cases without incorporating any legal argument. See Court of Appeals Rule 27 (c) (2).