At the Red Bam Pool Hall, a fight broke out between Douglas Villegas and several members of a gang. He fired a gun, wounding three and killing another. Villegas is an El Salvadorian national, but the arresting officers did not inform him that, under the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261,
1. The evidence is sufficient to authorize a rational trier of fact to find proof of Villegas’ guilt of the murder and the various other offenses beyond a reasonable doubt.
Jackson v. Virginia,
2. Appellant contends that the trial court erred in failing to sever for separate trial the charge of possession of a firearm by a convicted felon. The original indictment did not specifically allege that offense as the predicate felony in the alternative felony murder count, but the subsequent re-indictment did contain that allegation. Thus, that crime clearly was material to the more serious charge of felony murder.
Ford v. State,
Villegas urges that a contrary holding is required because only the re-indictment alleged possession of a firearm by a convicted felon as the underlying felony in the felony murder count. However, he had no right to be tried on the original indictment, and the State was authorized to re-indict him.
Casillas v. State,
3. During the course of the investigation, a confidential informant provided the police with information about Villegas, including the fact that he was no longer a member of an Atlanta gang. The defense moved unsuccessfully to compel the State to reveal the identity of this individual, contending that it wished to call him to testify to appellant’s status as a former gang member.
Because the confidential informant appears to be a mere tipster who had neither seen nor participated in the events, disclosure was not required.
Branch v. State,
4. Appellant filed a pre-trial motion to suppress his in-custody statement, contending that it was the product of an unlawful arrest. The trial court denied the motion, and he enumerates that ruling as error.
Villegas’ comments to the officers were exculpatory, since he claimed that the shootings were justified as acts of self-defense. As the statement was not inculpatory, the denial of the motion to suppress, even if error, was not harmful. See
Strickland v. State,
5. Villegas also urges that the trial court should have suppressed evidence discovered in a search of his car and home. However, he cites nothing produced by those searches which was harmful to his defense. Because there was no dispute that he fired the gun, the decisive question was whether he was justified in doing so. Because the officers found no evidence on that controlling issue in either the automobile or the house, the denial of appellant’s motion to suppress, if error, was harmless at most.
Muff v. State,
6. Villegas urges that the arresting officers’ failure to advise him of his right to contact the El Salvadorian consulate was a violation of the Vienna Convention requiring dismissal of the indictment and suppression of his statement. As a general rule, however, international treaties do not create individual rights which are privately enforceable in court proceedings. See
United States v. Li,
it is clear that nothing in the text requires suppression of evidence or dismissal of the indictment for violations. . . . *827 [Cit.] Because by its terms the Vienna Convention does not require application of the exclusionary rule or the more drastic remedy of dismissal of the indictment, we cannot impose such judicially created remedies absent a violation of a constitutional right. . . . We find that the rights, if any, created by the Vienna Convention do not rise to the level of a constitutional right protected by the judicially created remedies sought by [Villegas].
United States v. Page,
The record also indicates that Villegas declined to contact the consulate even after he was advised of his right under the treaty to do so. Thus, he did not show that any alleged violation of the Vienna Convention had a prejudicial effect on his trial.
Breard v. Greene,
7. Gerónimo Ayala, who was one of the aggravated assault victims and also the brother of the homicide victim, was unavailable for trial. Relying on the “necessity” hearsay exception, the defense sought to elicit testimony from Jeff Smith about statements allegedly made to him by Ayala. According to Smith, Ayala admitted that he pointed a gun at Villegas and that Villegas was, therefore, acting in self-defense when he fired his weapon. Concluding that the statements Smith attributed to Ayala lacked a particularized guarantee of trustworthiness, the trial court excluded the hearsay testimony. Villegas enumerates that evidentiary ruling as error.
The alleged admissions were made some months after the events, at a time when Smith and Ayala were both inmates. Smith had prior convictions for forgery and providing false information. The statements he attributed to Ayala were not corroborated by any other witness and were not made in the course of an official investigation. Under these circumstances, the trial court was authorized to exclude the hearsay testimony based upon its lack of trustworthiness. See
Cook v. State,
8. After the trial, Ayala returned to Georgia and, by way of affidavit, denied that he pointed a gun at appellant and that he ever stated to Smith that he had. Villegas cited this affidavit as newly discovered evidence requiring the grant of the motion for new trial, but the trial court found no merit in this ground.
The facts surrounding the events, as related by Ayala in his affi
*828
davit, were not exculpatory and were cumulative of the testimony of numerous other witnesses that only Villegas was armed. Since the evidence is cumulative and would not support a different verdict, it does not authorize the grant of a new trial.
Tanner v. State,
Judgments affirmed.
Notes
The crimes occurred on June 1,1998. The grand jury returned the indictment of Ville-gas on September 1, 1998 and the reindictment on January 12, 1999. The jury found him guilty on March 23, 1999 and, the next day, the trial court entered the judgments of conviction and sentences. Villegas filed a motion for new trial on April 21,1999, and the trial court denied that motion on September 13, 2000. He filed a notice of appeal on October 11, 2000, and the case was docketed in this court on January 4, 2001. The appeal was orally argued on March 19, 2001.