750 S.E.2d 347 | Ga. | 2013
Appellant Gregory Johnson was convicted after a jury trial for the malice murder of Carol Kaye Lewis and other related crimes.
1. Based on the evidence presented at trial, the jury was authorized to conclude that appellant entered the bookstore owned and operated by the victim and waited until she was alone. He then fatally stabbed the victim, took several distinctive rings from her fingers and cash from the cash register, and left her body in the back of the store. Appellant, who was seen after the crimes wearing the victim’s rings, told one witness he had rings to trade for crack cocaine and that the rings, which he “removed from a lady,” came off easily “because of the blood.” Just prior to her death, the victim spoke on the telephone with her husband, Harold Lewis, and mentioned that the “creepy guy” had been in the store for several hours and she wished he would leave. Lewis, who occasionally worked in the bookstore, was familiar with the person to whom his wife referred and encouraged his wife to step outside until the man left. Less than an hour after the call ended, the victim’s son arrived at the store and discovered his mother’s body. A few days after the murder, Lewis told police he remembered the name of the person he and his wife referred to as the “creepy guy,” Gregory Johnson, and he identified appellant in a photographic lineup.
Construed in the light most favorable to the verdicts, we find the evidence was sufficient to enable 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 SCt 2781, 61 LE2d 560) (1979).
2. Appellant contends the trial court erred by admitting Lewis’ testimony about his conversation with the victim just prior to the crimes. Although at trial appellant argued admission of this testimony would violate his rights under the Confrontation Clause, he asserts on appeal that it constitutes inadmissible hearsay. See Crawford v. Washington, 541 U. S. 36, 68 (124 SCt 1354, 158 LE2d 177)
Even assuming trial counsel had objected on hearsay grounds, we find no error. Hearsay statements may be admissible under the necessity exception of former OCGA § 24-3-1 (b)
The first and second prerequisites are satisfied in this case because the victim is deceased and her statements regarding who was present in the bookstore immediately prior to her death are relevant and more probative than other evidence that could be offered. As to the third prerequisite, particularized guarantees of trustworthiness, the State presented evidence that Lewis and the victim had been married and living together for 37 years, during which time they raised three sons. The evidence showed they remained close, they spoke on a regular basis while the victim was at work, and they talked daily, sometimes several times per day, about who was in the bookstore and how much business had been done. In addition, Lewis was concerned about his wife’s activities, telling her when he learned she was in the store alone with the “creepy guy” to step outside. Lewis also was familiar with the individual to whom his wife was referring because they had talked about him previously using the same terms and Lewis had seen him in the store and waited on him on prior occasions. While the spousal relationship between Lewis and the victim alone might not have been sufficient to establish the requisite indicia of reliability, we find their familial relationship considered together with other evidence of the closeness of their relationship was sufficient. See Bulloch v. State, 293 Ga. 179 (3) (744 SE2d 763) (2013). Compare McWilliams v. State, 271 Ga. 655 (2) (521 SE2d 824) (1999) (mere fact that victim and witness were sisters was insufficient to
3. Both Phyllis Kown, a customer of the bookstore, and Tometta Banks, a part-time bookstore employee, were allowed to testify at trial about statements made by the victim pertaining to a customer who caused her to feel uncomfortable and who she said she wished would not come in. Banks further testified that the victim on a previous occasion had stated “something about him gives me the creeps.” Neither of these witnesses was able to identify appellant as the customer to whom the victim referred. Appellant argues on appeal that evidence of the victim’s statements constitutes hearsay evidence which should not have been admitted at trial.
Assuming for purposes of appeal that the victim’s statements to Kown and Banks constituted inadmissible hearsay, we find any error in the admission of this evidence to be harmless. As discussed above, Lewis testified that his wife told him the “creepy guy” was in the store and he made her feel uncomfortable, and Lewis identified appellant by name and photograph as the person about whom they were speaking. Therefore, even assuming the victim was referring to appellant in her statements to Kown and Banks, their testimony was merely cumulative of Lewis’ properly admitted testimony, and we find it highly probable that its admission did not affect the outcome of the proceedings. See McNaughton v. State, 290 Ga. 894 (3) (b) (725 SE2d 590) (2012).
4. Several days after the crimes, police gathered together for the purpose of creating a sketch of the suspect several individuals, including Lewis, who stated they previously had seen the individual believed to have been alone with the victim just prior to her death. The group assisted the sketch artist, but due in part to their varying descriptions, no usable sketch was completed. Police then created a photographic lineup comprised of two six-person photographic arrays for the group to view, including a photograph of appellant. No individual at that time identified appellant as the suspect, but three days later, Lewis was shown the arrays again, at his request, and he identified appellant. Lewis then requested to see just a photograph of appellant and confirmed his identification. Appellant asserts that the collaboration of the group attempting to create an accurate sketch and to later identify a suspect from the photographic arrays impermissibly affected Lewis’ recollection when he returned to review the arrays a second time. In addition, he argues there was a substantial likelihood of irreparable misidentification once Lewis was shown the single photograph of appellant.
An unduly suggestive procedure is one which leads the witness to the virtually inevitable identification of the defendant as the perpetrator, and is equivalent to the authorities telling the witness, “This is our suspect.” Where the identification procedure is not unduly suggestive, it is not necessary to consider whether there was a substantial likelihood of irreparable misidentification.
(Citations and punctuation omitted.) Williams v. State, 286 Ga. 884, 888 (692 SE2d 374) (2010). The record establishes that the first time the arrays were shown, witnesses quietly reviewed the photographs without making any comment. In fact, there is no evidence of any discussion amongst the witnesses or between witnesses and police concerning the lineup, the crimes, or the individual police were trying to identify. They were not told a suspect was in the lineup, in part because no suspect had yet been identified. Moreover, the lineup shown on both occasions was identical, and there is no suggestion by appellant or in the record that any photograph was emphasized over another at either viewing. See Williams v. State, 290 Ga. 533 (2) (a) (722 SE2d 847) (2012). Accordingly, we find nothing about the identification procedures used in this case that required suppression of evidence related to Lewis’ identification of appellant. As correctly recognized by the trial court, the weight to be given Lewis’ delayed identification of appellant was for the jury to decide. See Perry v. New Hampshire, _U. S._ (132 SCt 716, 725, 181 LE2d 694) (2012).
5. Over appellant’s objection, the trial court allowed the State to present similar transaction evidence related to appellant’s prior conviction for an aggravated assault against a woman as she rested in her vehicle outside her place of employment. In order for similar transaction evidence to be admissible, the State must demonstrate that: (1) evidence of the independent offense or act is being offered not to raise an improper inference as to the accused’s character but for an appropriate purpose; (2) the evidence is sufficient to establish that the defendant committed the independent offense or act; and (3) there is a sufficient connection or similarity between the independent offense or act and the crime charged such that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991). In evaluating the trial court’s ruling, we accept its factual findings unless clearly erroneous and review its decision to admit the similar transaction evidence under the abuse of discretion standard. Reed v. State, 291 Ga. 10 (3) (727 SE2d 112) (2012).
6. Appellant further argues that admission of statements made by the now-deceased victim of the previous assault violated his rights under the Confrontation Clause. See Crawford, supra. We disagree. The Confrontation Clause prohibits the admission of statements only if the statements were testimonial. Davis v. Washington, 547 U. S. 813, 821-822 (126 SCt 2266, 165 LE2d 224) (2006); Glover v. State, 285 Ga. 461, 462 (678 SE2d 476) (2009). “ ‘Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.’ ” Thomas v. State, 284 Ga. 540, 543 (2) (668 SE2d 711) (2008), quoting Davis, supra, 547 U. S. at 822. Here, the challenged statements were made by the victim of the prior crime to a law enforcement officer minutes after the crime to meet an ongoing emergency; therefore, they were not testimonial, and their admission was not prohibited by the Confrontation Clause. See Milford v. State, 291 Ga. 347 (2) (729 SE2d 352) (2012).
(a) Trial counsel’s failure to object on hearsay grounds to Lewis’ testimony at trial cannot constitute deficient performance because, as determined above, this evidence was properly admitted. “[T]he failure to make a meritless objection will not provide support for finding trial counsel ineffective.” Nations v. State, 290 Ga. 39, 44 (4) (d) (717 SE2d 634) (2011).
(b) Appellant also argues that counsel was ineffective when he failed to object to the testimony of Tyrone Carter. Carter, who was incarcerated at the county jail at the same time as appellant, testified without objection that he received a handwritten note purportedly signed by appellant and instructing him (Carter) not to tell anyone he bought the rings from appellant. During the hearing on the motion for new trial, trial counsel testified he considered objecting to Carter’s testimony but decided not to because Carter already had been thoroughly discredited by his own statements, including his admission that he had previously provided a contradictory version of events. In addition, on cross-examination, Carter admitted that he was not familiar with appellant’s handwriting, that the note had been given to him by a jail trustee, and that he could not say whether appellant wrote the note. We find counsel’s decision not to object to Carter’s testimony and to instead cross-examine Carter about his prior inconsistent statement and lack of personal knowledge about the author or origin of the note was a matter of trial strategy and was not so patently unreasonable that no competent lawyer would have made
Judgment affirmed.
The crimes were committed on November 1, 2002. Appellant was indicted by a Bartow County grand jury on August 8, 2003, and charged with malice murder, two counts of felony murder, armed robbery, and three counts of theft by receiving. The State filed its notice to seek the death penalty on December 29, 2003. After a trial on October 17-31, 2006, the jury found
This Code section has been repealed and replaced by OCGA § 24-8-807, the residual exception to the hearsay rule. Ga. L. 2011, p. 99, § 2.
We note that Georgia’s new Evidence Code, effective January 1, 2013, provides that [e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
OCGA § 24-4-404 (b).