Appellant Orlando Smith was convicted of felony murder and related offenses in connection with the May 2010 shooting death of Demetra Smith.
1. Viewed in a light most favorable to the jury’s verdict, the evidence adduced at trial established that, three months prior to her death, Demetra Smith married Appellant. The two had a volatile history that included verbal and physical assaults. At trial, the State introduced evidence of numerous
On May 24, 2010, at approximately 6:30 p.m., the Smiths were seen at their shared apartment. At 1:40 a.m. on May 25, law enforcement responded to a home security alarm at the Smiths’ residence. Appellant was not at the apartment as he had, admittedly, left for his daughter’s house by that time. Upon their arrival, the police saw no signs of forced entry into the Smiths’ apartment; consequently, they did not enter the residence.
Appellant and his daughter returned to the apartment later in the morning on May 25. When they entered, they found Demetra unresponsive with a single gunshot wound to the back of her head. During their investigation, law enforcement found two bloody wedding rings on the kitchen sink next to a wash rag that was also covered in blood. Appellant told police that he had been with his daughter since 5:00 p.m. on May 24. At first, Appellant’s daughter corroborated this story However, she eventually admitted that she had lied, telling officers that Appellant arrived at her house around 2:00 a.m. on May 25. Phone records introduced at trial confirmed that Appellant was at or near his apartment between 5:00 p.m. on May 24 and 1:30 a.m. on May 25.
Upon his arrival at his daughter’s home, Appellant took a shower, changed his clothes, and was generally acting nervous. Appellant requested that his daughter tell anyone who asked that he had been with her since 5:00 p.m. the prior evening. According to Appellant’s daughter, her father had her throw a bag of clothes out the car window on their way back to the Smiths’ residence. She led police to the bag of clothing and identified the clothes inside as the same that her father was wearing when he first arrived at her house. Testing of this clothing revealed both the presence of gun powder and of Demetra’s DNA.
Ballistics testing revealed that Demetra was shot at close range with either a Beretta or a Taurus pistol. Though Demetra owned a .40 caliber Taurus pistol, no weapon was located at the crime scene, and her pistol was never recovered. At trial, the State introduced photographs that were taken six months prior to Demetra’s death showing Appellant holding a pistol that matched the description of his wife’s gun. The parties stipulated that Appellant was a convicted felon at the time of his wife’s murder.
We conclude that this evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Appellant was guilty of the crimes for which he was convicted. Jackson v. Virginia,
2. Next, Appellant argues that the trial court erred by admitting the bloody wedding rings and the photographs of him holding a gun because, he claims, they were seized pursuant to a deficient search warrant in violation of his Fourth Amendment rights.
In order for Appellant to have preserved this issue for review, he had to have obtained a ruling from the trial court on his motion to suppress. See Higuera-Hernandez v. State,
3. Prior to trial, the court instructed the parties and witnesses not to reference Appellant’s alleged drug dealing. During the State’s case-in-chief, the following exchange occurred while lay witness Ali Hassan was on direct examination:
Q: What did [the victim] say — why was she not happy?
A: I don’t know what — they have some kind of dispute on the relationship and the work . . . and I heard about him doing, [Appellant] doing the drugs, selling the drugs.
Appellant objected and moved for a mistrial, arguing that the State improperly introduced evidence of his bad character without the defense first opening the door to allow such evidence. The trial court denied the motion and instructed the jury as follows:
All right. Ladies and gentlemen, right before you left, something happened. This witness blurted out a statement about drugs and the defendant. There is no evidence whatsoever in this case about any of that. This came out of the total blue, and, you know, it is very detrimental to the defendant to have that said. But there is no evidence in this case whatsoever about the defendant being involved in drugs, dealing drugs, and I don’t know where that came from. I just sort of felt like I got hit by a baseball bat when I heard that because it was inappropriate, totally inappropriate, and I’m instructing you that there is no evidence in this case about the defendant and drugs; and I’m instructing you to disregard that statement entirely so we can proceed with this trial. And if you can’t set that aside, I need for you to raise your hand right now. That is not part of this case. Should not be considered in any way part of this case. Is there anybody that can’t follow that instruction? Okay There is no response.
Appellant alleges that the trial court’s failure to grant his motion for mistrial was erroneous. We disagree.
As a general rule,
[a] trial court’s denial of a motion for mistrial based on the improper admission of bad character evidence is reviewed for abuse of discretion by examining factors and circumstances, including the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.
(Citation and punctuation omitted.) Graves v. State,
As an initial matter, because Appellant failed to renew his motion for mistrial after the trial court denied it and then took other corrective action, this argument is waived. Graves,
4. Finally, the trial court did not err in admitting hearsay statements pursuant to the necessity exception. At a pre-trial hearing, the State adduced evidence from six lay witnesses —Ali Hassan, Alphonso Ross, Kristian Harbor, Mildred Smith, Fran Cooper, and Tilishia Johnson — regarding numerous prior statements made by the victim concerning her violent and tumultuous relationship with Appellant. The trial court ruled the hearsay testimony admissible, which Appellant contends was error.
Our old Evidence Code provided
three basic requirements for the admission of hearsay under the necessity exception: (1) the declarant of the statement is “unavailable,” (2) the declarant’s statement “is relevant to a material fact and . . . more probative on that material fact than other evidence that may be procured and offered,” and (3) the statement exhibits specific indicia of reliability
(Citations and punctuation omitted.) Mills v. State,
“A married person’s complaints about that person’s spouse, made to one with whom the married person is conducting an adulterous affair, are subject to the possibility of exaggeration if not outright falsehood.” Carr v. State,
Even if the trial court did err in admitting the testimony of Hassan and Ross, the error was harmless due to the strength of the other evidence presented. It is therefore highly improbable that the alleged error contributed to the verdict. See Mills,
We are also not swayed by Appellant’s concern that the witnesses provided inconsistent testimony regarding the victim’s allegations of physical and verbal abuse, thus rendering the hearsay inadmissible. Appellant has cherry-picked excerpts of witness testimony from the record in an attempt to establish their alleged inconsistencies; however, the test for trustworthiness considers the totality of the circumstances under which the statements were made. Gibson v. State,
Reviewing the record as a whole, the record shows the victim made these statements to her close friends and confidants, and that the statements were consistent in her overall message that Appellant was violent, abusive, and controlling, and that she had planned to leave him prior to her death. Appellant’s choice snippets of the record are inconsequential to our analysis. See Yancey v. State,
Judgment affirmed.
Notes
In August 2010, a Fulton County grand jury indicted Appellant for malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), felony murder predicated on possession of a firearm by a convicted felon (Count 3), aggravated assault (Count 4), possession of a firearm during the commission of a crime (Count 5), and possession of a firearm by a convicted felon (Count 6). Following a trial held from October 17-21, 2011, a jury acquitted Appellant of malice murder and aggravated assault, but found him guilty of all remaining counts. The trial court initially sentenced Appellant to life in prison on both felony murder counts and five years consecutive for both weapons charges.
Appellant filed a motion for new trial on November 18,2011, which was amended through new counsel on August 4, 2015, and March 22, 2016. Initially, the trial court denied the motion as amended in an order dated April 25, 2016. However, the trial court subsequently determined that Appellant’s sentence was improper and granted Appellant’s motion for new trial in part. On September 13, 2016, the trial court amended Appellant’s sentence to life for felony murder predicated on possession of a firearm by a convicted felon (Count 3) and five years consecutive for possession of a firearm during the commission of a crime (Count 5). The remaining charges were either merged or vacated by operation of law. Appellant timely filed a notice of appeal to this Court. The case was docketed to the August 2017 term of this Court, and oral argument was heard on October 3, 2017.