Dempsey v. StateDempsey v. State
- Reporters:
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- Before:
- Carley
Milеs Victor Dempsey was tried before a jury and found guilty of the malice murder of Jennifer Causey, an alternative count of felony murder, aggravated assault, and armed
1. Construed in support of the verdicts, the evidence shows that the victim, while working the night shift as a hotеl desk clerk, was talking on the telephone with her friend Crystal Tucker Lee when the hotel’s maintenance man, who had been angry and had cursed at the victim the previous morning, twice interrupted to request supplies. Since it was late, the women thought that the requests were odd. The victim told Ms. Lee that the man’s name was “Miles,” that she felt nervous and scarеd, and that Ms. Lee should call 911 if something should happen to her. A few minutes later, the victim said that the man was back again, and then called the name ‘Miles” in a manner which exprеssed shock. Ms. Lee heard the telephone drop and what sounded like a baseball bat hitting a desk three or four times. When the victim did not respond, Ms. Lee called 911, and the call was transferred to the correct jurisdiction. The police arrived at the hotel one minute later, discovered the victim dead with openings in her skull, found Dempsey in his roоm, and arrested him. A pair of jeans taken from the room had a blood stain which was from the victim, according to subsequent DNA testing. The hotel’s cash drawer was empty, and money was missing. The finder of fact could infer that Dempsey had very recently hidden some money which police officers found under ivy at a fence on the premises. Both the money and a nearby shirt of Dempsey’s were dry, even though it had rained earlier that same evening and the fence and the ivy were wet. The jury was authorized to find that Dempsey was guilty of maliсe murder and armed robbery beyond a reasonable doubt and to the exclusion of every reasonable hypothesis save that of guilt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Turan v. State, 274 Ga. 725 (1) (559 SE2d 463) (2002).
2. Dempsey contends that the trial сourt denied him a fair trial by improperly limiting his cross-examination of State witnesses in several instances.
(a) Defense counsel attempted to ask Ms. Lee whether Dempsеy’s late-night requests for cleaning supplies would be unusual if a toilet overflowed. The trial court did not abuse its discretion in finding that such cross-examination regarding the likelihood of Dempsey’s need for supplies called for speculation. See Taylor v. State, 272 Ga. 744, 747 (2) (534 SE2d 67) (2000). Moreover, the trial court permitted Dempsey’s attorney to raise the question on closing argument, and Dempsey has not shown or argued that the jury was any less capable than Ms. Lee of evaluating the requests for supplies. See McKenzie v. State, 248 Ga. 294, 297 (12) (282 SE2d 95) (1981).
(b) A detective testified without objection on direct examination that, during his investigation, he did not uncover any evidence that anyone other than Dempsey was involved in the crimes. On cross-examination, defense сounsel asked the detective whether the fact that not all of the money was recovered would indicate that the crimes could have been committed by more thаn one person, or by someone other than Dempsey. “This theory is speculative, and we find no abuse of discretion in the trial court’s refusal to allow [the] cross-examinаtion. . . . [Cit.]” Smith v. State, 270 Ga. 68, 71 (7) (508 SE2d 145) (1998). See also Walker v. State, 264 Ga. 79, 81 (4) (440 SE2d 637) (1994).
(c) Defense counsel also asked a police sergeant whether he would have done anything
Accordingly, we dо not find any error in the trial court’s restrictions on speculative cross-examination.
3. Dempsey requested that the trial court conduct an in camera inspection оf the personnel files of law enforcement officers involved in the case, for evidence of perjurious or other dishonest conduct which would reflect adversely on their credibility. The trial court received the documents under seal, found that they were not relevant to the issues in the case, and placed them back under seal. Dеmpsey enumerates as error the denial of access to the personnel files and requests this Court to review them, but concedes that he cannot specifically refer to any error since he did not have the opportunity to review the files.
“ ‘This Court will not review an in camera inspection conducted by the trial court based on speculation that there might be additional material which should have been found and produced for the defense. [Cit.]’ ”Mika v. State, 256 Ga. App. 546, 552 (7) (568 SE2d 818) (2002).
“If the trial court performs an in camera inspectiоn and denies the defendant access to certain information, on appeal the appellant has the burden of showing both the materiality and the favorable nature of the evidence sought. (Cit.) Mere speculation that the items the appellant wishes to review possibly contain exculpatory information does not satisfy this burden. (Cit.)”
Head v. Stripling, 277 Ga. 403, 407 (1) (590 SE2d 122) (2003). “ ‘The trial court’s discretionary ruling after an in camera inspection that all exculpatory material, if any, has been produced establishes that as a fact absent a countershowing. [Cit.]’ ” Mika v. State, supra.
Dempsey did not show that any specific report contained in the personnel files casts doubt upon any officer’s credibility. McMichen v. State, 265 Ga. 598, 611 (24) (458 SE2d 833) (1995); Taylor v. State, 182 Ga. App. 494, 496 (1) (356 SE2d 216) (1987). “His general assertion that something in the file[s] might be exculpatory is insufficient to show error. [Cit.]” Pollard v. State, 260 Ga. App. 540, 545 (4) (580 SE2d 337) (2003). Since Dempsey has not met his burden of showing that the personnel files were not the subject of a fishing expedition, but were relevant to his guilt, innocence or appropriate penalty, we find no error in the trial court’s denial of access to those files. McMichen v. State, supra; Taylor v. State, supra.
4. Dempsey further contends thаt both sentences were erroneous because the recidivist provision prohibiting parole,
Although armed robbery is treated as a capital offense for certain purposes, a long and consistent line of authority holds that, for the purpose of recidivist sentencing, armed robbery is not considered a capital felony.
Dixon
v.
State,
267 Ga. App. 479, 480 (1) (600 SE2d 415) (2004);
Cook v. State,
255 Ga. App. 405, 406 (565 SE2d 487) (2002);
Getty v. State,
207 Ga. App. 736 (429 SE2d 100) (1993);
Harper v. State,
203 Ga. App. 775, 777 (417 SE2d 435) (1992);
Davis v. State,
159 Ga. App. 356, 361 (4) (b) (283 SE2d 286) (1981). Therеfore, Dempsey’s sentence for armed robbery “was governed by
However, the State correctly concedes that the sentence of life imprisonment without parole for murder is void, since none of the prior offenses on which the recidivist
Judgments of conviction affirmed; sentences vacated in part and case remanded with direction.
All the Justices concur.
Notes
The crimes occurred on March 13, 2001, and the grand jury returned its indictment on January 25, 2002. The jury found Dempsey guilty on August 23, 2002 and, on September 11, 2002, the trial court entered the judgments of conviction and sentences. On September 12, 2002, Dempsey filed the motion for new trial, which was amended on December 10, 2003 and denied on January 6, 2004. Dempsey filed a notice of appeal on February 2, 2004. The case was docketed in this Court on February 22, 2005 and submitted for decision on April 18, 2005.