Appellant John Philpot and two others were charged with murder and other offenses arising out of the drive-by shooting death of Lisa Odell Mosby, along with the firing of gunshots toward Troy Mitchell, Anthony Floyd, and King Brown. The three co-defendants were jointly tried, and appellant and co-defendant Ernest Glass were convicted of all charges. Co-defendant Lizzie Philpot, appellant’s younger sister, was found not guilty Appellant challenges the sufficiency of the evidence, asserts that the trial court erred when it denied his motion to sever his trial from that of his co-defendants, and contends the trial court erred in failing to exclude his custodial statement, claiming it was made involuntarily with the hope of benefit. Having reviewed the record and considered appellant’s arguments, we affirm the judgment of conviction.
1. We first address appellant’s challenge to the sufficiency of the evidence. The State presented evidence that the shooting incident arose out of an on-going dispute between Lizzie and Mitchell over the paternity and support of Lizzie’s child, as well as a
Again at trial, Mitchell and Floyd identified appellant as the driver of the car involved in the shooting, and it was undisputed that appellant owned that car. Appellant was well known to these witnesses. Evidence of the on-going dispute between Mitchell and Lizzie provided a motive for appellant’s and Glass’s conduct. Further, appellant made inculpatory statements in the custodial statement he gave to authorities. At trial, appellant presented evidence by which he sought to impeach the credibility of Mitchell’s and Floyd’s testimony, and he argued to the jury that the evidence supported the conclusion that the fatal bullet was fired by Floyd, who fired back at appellant’s car. Co-defendant Glass made some of these same assertions in his appeal, but we concluded the evidence was sufficient to authorize Glass’s convictions. See Glass v. State,
2. Just as co-defendant Glass did in his appeal, appellant asserts the trial court abused its discretion in denying his motion to sever his trial from that of his co-defendants. As this Court ruled in Glass’s appeal, we reject this argument and find that “[t]he familial and personal inter-relationships of the three defendants and one of the victims were not so confusing as to warrant separate trials given that the relationships went to motive for the shootings and would have been admissible had the co-defendants been tried separately” Glass, supra,
Appellant asserts the additional argument that failure to sever his trial from Glass’s trial required the redaction of portions of his custodial statement due to Bruton
3. With respect to appellant’s custodial statement, the State presented evidence that appellant made this statement after he was arrested and informed that he was suspected of murder, and after he executed a written waiver of his Miranda rights. Appellant filed a motion to suppress his signed written statement as well as testimony regarding the statement, and the motion was heard immediately before the trial commenced. Appellant’s interrogation was not recorded, but Detective O’Neil, who conducted the in-custody interview, testified at the pre-trial hearing that appellant’s statement was committed to a four-page writing, which appellant reviewed and signed. Certain portions were redacted, as noted above, including statements about an unrelated crime and statements incriminating Glass. When asked on direct examination whether he had made a promise to Philpot that created some hope of benefit for making the statement, the officer answered, “Absolutely not.” The officer also denied threatening Phil-pot in any way to make the statement. On cross-examination, Phil-pot’s counsel asked the officer if he instructed Philpot that he would arrest his sister Lizzie unless Philpot told him what needed to be told, and the officer denied making such a statement. In response to counsel’s question, the officer also testified that while he was familiar with the saying “first man talking is the first man walking,” he had no idea if he had used that phrase with appellant, but further stated it was not a phrase he commonly used. Appellant offered no testimony at the motion to suppress hearing and, consequently, the officer’s testimony was undisputed. The trial court found appellant’s statements were given freely and voluntarily, that they were made after he was advised of his rights, and that he understood his rights at the time he gave the statement. Appellant further objected to admission of the redacted statement on the ground that its admission would not provide the jury with the complete statement appellant offered to the detectives and could be taken out of context. F or this reason, appellant again argued that the solution was to sever the co-defendants’ trials, but the trial court again denied that request.
At trial, appellant’s redacted statement was read into the record without further objection, and it contained certain incriminating statements. Although no evidence was presented concerning the type of bullet that caused the victim’s fatal wound because it exited her body and was not available for inspection, evidence was presented that a 9mm bullet and several 9mm shell casings were found at the scene. Appellant’s redacted statement included the fact that on the night
The State then called as witnesses both Detectives O’Neil and Quinn. Detective O’Neil denied he ever told appellant that if he did not change his account he was going to lock up his sister and denied making the statement that “first man talking is the first man walking.” Detective Quinn confirmed O’Neil’s testimony that Quinn did not interview appellant but supplied O’Neil with certain questions to cover in the interview. Quinn further testified he never made the alleged statements in question to appellant and that he never heard O’Neil or any other detective make those statements to appellant. He testified he would have remembered the rhyme “because it’s kind of corny”
In his motion for new trial, appellant asserted the trial court erred in failing to exclude evidence of his custodial statement on the ground it was not made voluntarily, as required by former OCGA § 24-3-50,
Pursuant to Georgia’s former (and current) Evidence Code: “To make a confession admissible, it shall have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury” Former OCGA § 24-3-50. See also Brooks v. Florida,
That portion of appellant’s motion for new trial that raised again the admissibility of appellant’s custodial statement was, in effect, a motion to reconsider the motion to suppress, and it is within the trial court’s discretion to consider anew a motion to suppress that was previously denied. See State v. Marcus,
Judgment affirmed.
Notes
The crimes occurred on February 10, 2003. On May 30, 2003, a Fulton County grand jury returned an eleven-count indictment charging appellant and his co-indictees with malice murder; two counts of felony murder (aggravated assault of Mosby and aggravated assault of all four victims); four counts of aggravated assault with a deadly weapon; and four counts of possession of a firearm during the commission of a felony. Appellant and his co-indictees faced a jury trial conducted between November 27 and December 12, 2006. The jury returned a verdict of guilty on all counts. The aggravated assault guilty verdicts with respect to victim Mosby merged with the felony murder convictions, and the felony murder convictions were vacated as a matter of law. The trial court sentenced appellant to life imprisonment for malice murder; three five-year sentences for the aggravated assault guilty verdict with respect to each of the remaining three victims, to be served concurrently with the life sentence; and concurrent five-year sentences to be served consecutively to the term of life imprisonment for each of the four convictions for possession of a firearm during the commission of a felony. Appellant filed a timely motion for new trial. After withdrawal of trial counsel and an order appointing appellate counsel, appellant filed amendments to his initial motion for new trial. After conducting a hearing, the trial court denied appellant’s motion for new trial by order dated December 19, 2013. Appellant filed a timely notice of appeal, and this case was docketed to the April 2016 term of court for a decision to be made on the briefs.
Bruton v. United States,
Although it does not appear in the record, appellant asserts his full and unredacted statement included other details, including the fact that Glass was driving the vehicle on the first pass by the scene, that appellant got into the driver’s seat to make the second pass, and that on both passes, Glass was the shooter. Appellant asserts that in the full statement he explained that he followed Glass’s orders because Glass threatened him and he was in fear of Glass since appellant had previously sworn out a warrant for Glass’s arrest when Glass struck him in the mouth with a pistol. The record reflects, however, that appellant testified on direct or cross-examination about many of these details he claims were redacted from his written statement.
Under Georgia’s new Evidence Code, this rule is codified at OCGA § 24-8-824.
See State v. Ray,
The motion for new trial (or motion for reconsideration of the denial of appellant’s motion to suppress his custodial statement) was timely made and later amended, and therefore this case does not present the issue of a motion for reconsideration that was not timely made within the same term of court. See Moon v. State,