Aрpellants Atu Lewis (Lewis) and Jacque Dominique Clark (Clark) were convicted of murder and related crimes stemming from a home invasion that took place in Clayton County.
The underlying facts show that on the morning of June 21, 2007, Lewis, Clark, Marcel Brower, and Hilarie Ford acted on a plan to steal drugs and money from the victim Troy Marine. Brower testified at trial
After entering the house, the men encountered the victim’s three children (two boys who were eleven and ten years old and a five-year-old girl) in an upstairs bedroom, and Brower moved the children downstairs, making them lie down on the floor with pillows over their heads. Clark watched over the kids. The victim was oblivious to the circumstances of his children because Ford had the music playing loudly in the victim’s bedroom and because the bedroom door was locked. Brower took the victim’s younger son by gunpoint, brought-him upstairs to where Lewis was standing, and they made the boy knock on the bedroom door until the victim opened it. When the victim opened the door and saw the men with guns and his son, he immediately started throwing punches, knocking Lewis into the wall. In response, Lewis shot the victim. After the shooting, the victim’s oldest son testified that the three men fled the house through the front door. A next-door neighbor testified that she saw three men exiting the victim’s house and two of them enter a vehicle, while the other man ran up the street. Brower confirmed that he and Lewis drove away in the vehicle, picking up Clark who had run up the street on foot. Ford, who had been left behind at the victim’s house, called Clark who instructed her to wipe away fingerprints at the scene. After driving for a time and letting Clark out of the car, Brower and Lewis circled back and picked up Ford in a different subdivision. When they picked her up, Ford had with her a pound of marijuana from the victim’s house which Brower later took to sell. Clark’s roommate testified that Clark called him that sаme day and said he had just killed somebody and asked the roommate for a ride.
After the perpetrators left the house, the victim’s children ran across the street to a neighbor’s house and called police. At the scene, the police recovered a 9mm shell casing. They also obtained latent palm and finger prints from the scene аnd the car used during the crime. The palm and finger prints were eventually found to match the known palm and finger prints of Brower and Lewis. Blood evidence recovered from the car matched Lewis’s DNAand was consistent with Brower’s testimony that Lewis injured his hand when he broke the window to enter the victim’s house. Several witnesses, including Brower, testified that at the time
The medical examiner testified that the shooter was within four feet of the victim when he was shot and the bullet pierced the victim’s heart, diaphragm, and livеr causing his death.
Case No. S13A0225
1. Lewis claims the evidence was insufficient to convict him for malice murder and the other charges for which he was convicted based on the fact that the State’s key witness was Brower, an accomplice to the crime. See OCGA § 24-4-8 (2012).
2. Lewis alleges the trial court errеd when it allowed the admission of testimony which he contends improperly placed his character into evidence and erred when it failed to grant a mistrial baséd on the State’s violation of discovery rules in regard to the information elicited from the testimony. At trial, Brower testified Lewis told him that Lewis and Clark had a conversation about killing Ford, purportеdly to prevent her from telling police about the shooting. Lewis argues he was unaware of Brower’s statement about the alleged conversation because the State failed to produce it during discovery. The transcript shows prosecutors learned of this alleged conversation between Lewis and Clark when they interviewed Brower during their trial preparation a few weeks prior to trial. Rather than precluding Brower’s testimony or granting a mistrial, the trial court allowed counsel for Lewis and Clark to interview Brower about the alleged conversation between Lewis and Clark. After interviewing Brower, counsel did not posit any further objections concerning the testimony.
(a) The testimony at issue was admissible even if it incidentally placed Lewis’s character into evidence. “Any statement or conduct of a person, indicating a consciousness of guilt, where such person is, at the time or thereafter, charged with or suspected of crime, is admissible against him upon his trial for committing it.”
(b) Lewis contends he was entitled to a mistrial because the State failed to provide Brower’s statement about Lewis’s and Clark’s alleged conversation during discovery. See OCGA § 17-16-6.
3. Lewis contends the record is incomplete because the charge conference between the attorneys аnd the trial court was not transcribed. Any omission from the record is a matter for the trial court. See OCGA § 5-6-41 (f). Since it appears Lewis did not pursue this matter with the trial court, the issue is not before this Court for review.
Case No. S13A0226
4. Clark claims the evidence was insufficient to convict him on the basis that Brower’s testimony was uncorroborated. This enumeration of error lacks merit beсause there was slight evidence corroborating Brower’s testimony that Clark participated in the crimes leading to the victim’s death. See Moore v. State, supra,
5. Clark contends a picture of Lewis’s hand taken by the lead detective in the case should not have been admitted because it had writing on it by the lead detective. This enumeration of error is not properly before this Court for review because Clark did not object to the admission of the evidence. See Castillo v. State,
6. During the prosecutor’s opening statement, he used a power-point presentation that included two photographs of the victim’s house. Clark objected to the use of the photographs because they had not yet
Judgments affirmed.
Notes
The crimes took place on June 21, 2007. On February 14, 2008, a Clayton County grand jury returned аn indictment against appellants along with two other co-defendants on charges of malice murder, three counts of felony murder, six counts of aggravated assault, four counts of burglary, one count of armed robbery, three counts of kidnapping, three counts of false imprisonment, three counts of cruelty to children in the first degree, and four cоunts of possession of a weapon during the commission of a crime. From June 16,2010, to June 25,2010, appellants Lewis and Clark were tried together before a jury. One count of aggravated assault and one count of burglary were resolved nolle prosequi on the eve of trial. The jury found appellant Lewis guilty on all remaining counts. The jury acquitted apрellant Clark of malice murder, but found him guilty on all remaining counts.
On June 29,2010, the trial court sentenced appellant Lewis as follows: life without parole for malice murder; life with parole for armed robbery to be served concurrently to the sentence for malice murder; twenty years for burglary to be served concurrently to the sentence for maliсe murder; twenty years for each of three counts of cruelty to children to be served concurrently to the sentence for malice murder; twenty years for each of three counts of aggravated assault to be served concurrently as to each other and consecutively as to the sentence for malice murder; life with parole for each of three counts of kidnapping to be served concurrently as to each other and consecutively as to the sentence for malice murder; five years for one count of possession of a weapon during the commission of a crime to be served consecutively to the sentence for malice murder; and five years for each of three counts of possession of a weapon during the commission of a crime to be served concurrently as to each other and consecutively as to the sentences for kidnapping. The remaining counts for which Lewis was convicted were merged and/or vacated as a matter of law. Lewis movеd for a new trial on July 9,2010, and amended the motion on July 19,2010, December 29,2010, and January 10, 2012. The trial court held a hearing on January 10, 2012, and denied the motion for new trial on April 25, 2012. Lewis filed a notice of appeal on May 4, 2012. Lewis’s appeal was docketed to this Court’s January 2013 term for a decision to be made on the briefs.
On June 29,2010, the trial court sentenced appellant Clark as follows: life with parole for felony murder; life with parole for armed robbery to be served concurrently to the sentence for felony murder; twenty years for each of two counts of aggravated assault to be served concurrently to the sentence for armed robbery; life with parole for each of three cоunts of kidnapping to be served concurrently as to each other and consecutively as to the sentence for felony murder; twenty years for each of three counts of cruelty to children to be served concurrently to the sentences for kidnapping; five years for one count of possession of a weapon during the commissiоn of a crime to be served consecutively to the sentence for felony murder; and five years for each of three counts of possession of a weapon during the commission of a crime to be served concurrently as to each other and consecutively as to the sentences for kidnapping. The remaining counts for which Clark was convicted were merged and/or vacated as a matter of law. Clark filed a motion for new trial on July 8,2010, and amended it on February 25, 2011, and on January 10, 2012. The trial court denied the motion on April 25, 2012. Clark filed his notice of appeal on May 3, 2012. Clark’s appeal was docketed to this Court’s January 2013 term for a decision to be made on the briefs.
At the timе of the trial, Brower stated he intended to plead guilty to the crimes for which he was indicted, but had not yet entered his plea.
OCGA § 24-4-8 (2012) was repealed onJanuary 1,2013, coinciding with the effective date of Georgia’s new Evidence Code, and replaced by OCGA § 24-14-8 with only slight revision. Since the trial in this case occurred prior to January 1, 2013, OCGA § 24-4-8 (2012) was still applicable at the time.
OCGA § 17-16-6 provides in relevant part:
If at any time during the course of the proceedings it is brought to the attention of the court that the state has failed to comply with the requirements of this article, the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. . . .