740 S.E.2d 609 | Ga. | 2013
Appellant Jamón Jackson was convicted and sentenced to life in prison plus 20 years for fatally shooting his girlfriend Ashley Cierra White and burning her body inside her vehicle to conceal her death.
On Friday, August 12, 2005, police discovered a burned out car with human remains in Fulton County. The authorities ran the vehicle’s license plate number and discovered that the tag was registered to the victim. That evening, a policeman went to the
The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). While the evidence was sufficient to authorize appellant’s conviction for tampering with evidence, appellant committed misdemeanor tampering rather than felony tampering because he tampered with evidence in his own case. DeLeon v. State, 289 Ga. 782 (1) (716 SE2d 173) (2011); White v. State, 287 Ga. 713 (1) (d) (699 SE2d 291) (2010). Accordingly, the ten-year sentence imposed on appellant for tampering is vacated and the case is remanded for imposition of a sentence for misdemeanor tampering. Id.
[c]riminal homicide shall be considered as having been committed in the county in which the cause of death was inflicted.... If a dead body is discovered in this state and it cannot be readily determined in what county the cause of death was inflicted, it shall be considered that the cause of death was inflicted in the county in which the dead body was discovered.
Amaker, who witnessed the fatal shooting of the victim, did not know the location where appellant shot the victim; however, a College Park police officer testified that the burning car in which the victim’s body was found was located in Fulton County. The State met its burden of proving beyond a reasonable doubt that venue properly was in Fulton County. Lanham v. State, supra, 291 Ga. at 626.
3. Appellant alleges the trial court erred when it allowed a videotape of appellant’s non-custodial statement to be played to the jury.
4. Appellant alleges the trial court erred when it denied his motion for mistrial when a portion of the videotape of appellant’s non-custodial statement revealed to the jury appellant’s prior criminal conduct. According to statements made by the trial court judge in the trial transcript, there was a brief mention made on the videotape of a “possible” prior drug arrest concerning appellant. At the mention of the drug arrest, the trial court immediately ordered the prosecutor to stop playing the videotape, sustained defense counsel’s objection, and gave a curative instruction to the jury to disregard any mention of “any other criminal offense” by appellant. The trial court then denied appellant’s motion for mistrial. Appellant contends the mishap improperly introduced evidence of appellant’s character and constitutes reversible error. We disagree. The decision to grant a mistrial is within the discretion of the trial court and will not be disturbed on appeal unless there is a showing that a mistrial is essential to the preservation of the right to a fair trial. Rafi v. State, 289 Ga. 716 (4) (715 SE2d 113) (2011). Here, the trial court’s immediate curative instruction and cessation of the playing of the videotape preserved appellant’s right to a fair trial. See id. at 720; Hammond v. State, 260 Ga. 591 (3) (398 SE2d 168) (1990). Accordingly, appellant was not denied a fair trial, and the trial court did not abuse its discretion when it denied appellant’s motion for a mistrial. Id.
5. Appellant alleges the trial court erred when it allowed the admission of purported inadmissible hearsay testimony over objection. This allegation is without merit. Detective Dimasi testified during his direct examination that Bennie Grissom told police during the investigation that appellant confessed to Bennie that he had killed the victim. Appellant contends Detective Dimasi’s testimony constitutes inadmissible hearsay. This testimony, however, does not constitute inadmissible hearsay because Bennie testified in court under oath subject to cross-examination during which his veracity was challenged. Woodard v. State, 269 Ga. 317, 320 (496 SE2d 896)
6. Appellant contends the trial court erred when it allowed, over appellant’s objection, the State to question Detective Dimasi as to whether appellant was the only person to confess to the victim’s death. This enumeration of error is without merit. The record shows that Bennie Grissom testified at trial that appellant confessed to him that he had killed the victim. During the course of Bennie’s direct examination, the word “confession” was used pervasively to describe appellant’s disclosure to Bennie without any objection by defense counsel. Later in the trial, the following transpired when Detective Dimasi testified:
• On redirect, the prosecutor asked Detective Dimasi how many people he had encountered who had confessed during his years of service as a police officer and defense counsel objected to the use of the word “confession” rather than the word “statement” and argued that Detective Dimasi had not received any confession. The prosecutor rephrased the question and asked, “When you spoke with Bennie Grissom, did Bennie Grissom indicate to you . . . that the Defendant confessed to him?” Detective Dimasi answered this question in the affirmative and appellant did not object.
• The trial court then allowed the prosecutor to ask the following question over appellant’s hearsay objection: “In*691 this particular case did the defendant... confess to Beqnnie Grissom that he killed [the victim]” and Detective Dimasi responded in the affirmative.
• Finally, the trial court allowed the prosecutor on redirect to ask Detective Dimasi whether Amaker, Michael and Joseph Grissom, or anyone else involved in the investigation had confessed to killing the victim and Detective Dimasi responded in the negative. Defense counsel objected to this line of questioning by taking issue with the use of the word “confession” rather than the words “conclusion” or “statement.”
On appeal, appellant urges that this entire line of questioning was hearsay and/or constituted improper bolstering of Bennie Grissom’s testimony. Again, there was no hearsay violation because Bennie Grissom testified at trial. Woodard v. State, 269 Ga. at 320; Hayes, supra, 268 Ga. 809 (4); Cuzzort, supra, 254 Ga. 745. Appellant also failed to make any bolstering objection and so that issue is waived. Durham, supra, 292 Ga. 239 (2). Accordingly, this enumeration of error cannot be sustained.
Judgment affirmed in part and vacated in part, and case remanded for resentencing.
The victim was killed on August 10,2005. On October 21,2005, the Fulton County grand jury returned a true bill of indictment charging appellant with malice murder, felony murder, arson in the first degree, aggravated assault with a deadly weapon, possession of a firearm during the commission of a felony, concealing the death of another, and tampering with evidence. A jury trial was held from March 10 to March 18, 2008, at the end of which the jury returned a verdict of guilty on all charges. On March 21, 2008, the trial court sentenced appellant to life in prison for malice murder, ten years to be served consecutively for arson in the first degree, five years to be served concurrently (with the count of arson in the first degree) for possession of a firearm during the commission of a felony, and ten years each for concealing the death of another and for tampering with evidence to be served concurrent to each other but consecutively to the malice murder charge. The aggravated assault charge merged as a matter of fact into the malice murder charge and the felony murder charge was vacated as a matter of law. On April 2,2008, appellant moved for a new trial and filed amended motions for a new trial on April 6, 2011, and on May 20, 2011. The trial court conducted a hearing on the motion for new trial as amended on June 28, 2011, and denied the motion on October 4, 2011. The trial court
Lead detective Steven Dimasi testified that a missing person’s report, pictures, posters, news releases, and sound bites were issued as the investigation was ongoing because there was a public interest in the case and the human remains in the vehicle had still not been conclusively identified.
The videotape is not in the appellate record. We have discerned the contents of the videotape from the trial transcript and the parties’ briefs.
On appeal, appellant does not challenge the trial court’s denial of his motion to suppress the videotape on grounds related to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).
On cross-examination, defense counsel challenged Bennie Grissom’s veracity inasmuch as her questions implied that Bennie had an improper motive for his testimony, namely diverting suspicion for the victim’s death from his sons Michael and Joseph.
Because this case was tried before the implementation of Georgia’s new Evidence Code (effective for trials commencing on or after January 1, 2013), this Court is not required to conduct a plain error review of appellant’s bolstering claim. Id.