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,
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,
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,
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,
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.
We disagree that the photographic lineup was unduly suggestive.
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,
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,
The trial court admitted evidence of the prior incident to show appellant’s bent of mind based on the similarities in the crimes. Specifically, the trial court found similarities based on the personal characteristics of the victims and the fact that in both cases appellant used a knife to assault a woman at her place of employment after waiting for the victim to become vulnerable and alone or isolated from others during either the early morning or early evening, generally at times of low light. In addition, in both instances he took personal possessions of minor value. Based on these findings, the trial court determined there was sufficient evidence that appellant committed the prior crime, the
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,
7. Appellant asserts in his final enumeration of error that he was denied effective assistance at trial because counsel failed to object on hearsay grounds to Lewis’ testimony about his telephone conversation with the victim and failed to object to testimony about a prison note. In order to prevail on his claim of ineffective assistance, appellant must show both that counsel’s performance was deficient and that the deficiency prejudiced him so that there is a reasonable likelihood that, but for the deficiency, the outcome of his trial would have been different. Strickland v. Washington,
(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,
(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
Judgment affirmed.
Notes
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 appellant guilty of all charges except a single count of theft by receiving which was nolle prossed by the State. After the sentencing phase of trial, the jury found the existence of four statutory aggravating circumstances and recommended a sentence of life without parole. On November 21, 2006, the trial court followed the jury’s recommendation and sentenced appellant to life without parole for malice murder, a consecutive term of life in prison for armed robbery, a consecutive 12-month term in prison for theft by receiving and a consecutive ten-year sentence for a second theft by receiving conviction. The remaining counts merged or were vacated by operation of law. Malcolm v. State,
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).