Thompson v. State
Thompson v. State
Opinion of the Court
Appellant Damarius Thompson challenges his convictions for malice murder and other crimes in connection with the shooting death of Joshua Richey. Appellant, who is representing himself on appeal, enumerates a variety of claims. Our review of the record, however, reveals no reversible error, so we affirm.
*6501. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. On March 10, 2015, Richey and his friend Jason Shelton were working a construction job near a Kroger grocery store on Ponce De Leon Avenue in Atlanta. Richey had parked his pickup truck in the Kroger parking lot, and Shelton did the same with his truck. Around 2:00 p.m., Richey and Shelton were sitting at their work site about 75 feet away from their trucks when Shelton saw a man tinkering with the passenger door handle of his truck and another man wearing yellow sitting in Richey's truck. He and Richey ran towards the parking lot, and Richey slapped the driver's side window of his truck with his hand. The man in Richey's truck shot a bullet through the closed door, hitting Richey in the chest; got out of the truck and into a two-door black BMW sedan with tinted windows and a red and white temporary license plate that was parked between the trucks; and fled with the other man driving. Richey died from his gunshot wound moments later. The bullet that killed him was fired by a gun consistent with the .357 Glock pistol that he kept in the middle console of his truck; a box of .357 bullets was found in the truck. A .357 shell casing was also found at the scene, but Richey's gun was not found.
The police obtained a video recording of the shooting from one of Kroger's surveillance cameras, and the recording was broadcast on the local news. The next day, Shenia Gaither saw the surveillance video on the news and told the police that she recognized the BMW, which her roommate Theresa Gurley had purchased the day before the murder. When the police went to Gurley's home, they found a BMW parked in her driveway that matched the getaway car seen in the surveillance video. A detective interviewed Gurley, who said that on the day of the shooting, she lent the BMW to her friend "Mean." Gurley later identified "Mean" as Appellant in a photo lineup. In the backseat of the BMW, the police found a Powerade bottle that testing later showed had Appellant's fingerprints and DNA on it. The police also found Appellant's fingerprint on the driver's side door of Richey's truck.
During a later interview with the police, Gaither said that on the day after the shooting, she saw Gurley and "Mean"-whom she also identified as Appellant in a photo lineup-burning yellow clothing in Gurley's garage and wiping down the BMW. The police had noticed burn marks and soot in the garage and had smelled a "fresh burn" and bleach. Gaither also said when she told Appellant that she had seen him in the surveillance video, he told her that he shot Richey because "[Richey] got too close."
The police arrested Appellant on March 26, 2015. Cell phone records showed that his phone was near the Kroger at the time of the shooting and near Gurley's house on the day after the murder. The State also presented evidence that Appellant previously had been convicted for illegally entering an automobile in a retail parking lot. Appellant did not testify at trial, where he represented himself after the jury was selected. The surveillance video, which was played for the jury, does not clearly show the assailant, and Appellant's primary defense was that he was not the shooter depicted on the recording.
2. Appellant contends that the evidence presented at trial was legally insufficient to support his convictions for malice murder, armed robbery, felony murder based on entering an automobile, and tampering with evidence, and that the trial court erred in denying his motion for a directed verdict of acquittal as to those charges and felony *651murder based on armed robbery.
" '[E]vidence that the defendant acted where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart' " is sufficient to establish the malice required for a malice murder conviction. Moran v. State,
3. Appellant claims that his convictions are void because the record does not show that his indictment was returned in open court. In Georgia, a grand jury indictment must be returned in open court, and the failure to do so is per se injurious to the defendant. See State v. Brown,
At the hearing, a supervisor in the Fulton County Superior Court Clerk's Office testified that under the court's procedure, true bills of indictment are presented to the presiding judge in open court and no true bill is given a case number unless that procedure has been followed. Appellant's indictment shows the handwritten word "true" in front of the word "bill," the handwritten date, the grand jury foreperson's signature, and the stamped date the indictment was filed in the superior court; his case then received a case number from the clerk's office. The trial court found from this evidence, which Appellant did not dispute, that his indictment was in fact returned in open court. His claim therefore fails. See Chelsey v. State,
4. Appellant also contends that he was not properly arraigned. He asserted this claim in two motions in arrest of judgment, which were both filed in the trial court on July 12, 2016. The court correctly dismissed those motions as untimely. Under OCGA § 17-9-61 (b), a motion in arrest of judgment "must be made during the term at which the judgment was obtained." Appellant's convictions were entered on May 10, 2016, during *652the trial court's May 2016 term, which ended on July 3. See OCGA § 15-6-3 (3) (Fulton County terms of court). One of Appellant's motions was postmarked on July 1, but that does not help him, because both motions were filed with the clerk of court after the May term had ended and were therefore untimely. See Roberts v. Cooper,
5. One of the jurors for Appellant's trial notified the court during voir dire that she knew the State's witness Theresa Gurley, who was one of her physical therapy patients. The juror then told the court that she was "creep[ed] out" by the possibility that Appellant would know where she worked based on her answers to the voir dire questions. Appellant now asserts that his trial counsel (who represented him until the end of jury selection) provided ineffective assistance in failing to challenge the juror for cause. To prevail on this claim, Appellant must show that his counsel's performance was professionally deficient and that, but for the deficiency, there is a reasonable probability that the outcome of his trial would have been more favorable to him. See Strickland v. Washington,
At the motion for new trial hearing, trial counsel testified that he consulted with Appellant during jury selection and that Appellant had not wanted to strike this juror. See Taylor v. State,
6. When Gurley testified at trial, many of her responses were inconsistent with what she had told the police about Appellant during her recorded interview; she also claimed that she did not recall a number of incriminating statements about Appellant that she made during the interview. The State then presented evidence of Gurley's prior inconsistent statements through the testimony of the detective who had interviewed her and by playing relevant portions of the recording.
Given Gurley's inconsistent testimony at trial and her convenient memory lapses about the portions of her conversation with the police that implicated Appellant, her earlier statements were not hearsay but rather were properly admitted as prior inconsistent statements. See OCGA §§ 24-8-801 (d) (1) (A), 24-6-613 (b). See also *653Brewner v. State,
Because Appellant did not object at trial to the evidence of Gurley's prior statements on any ground other than hearsay, on appeal we review his additional claims only for plain error. See OCGA § 24-1-103 (d) ; Lupoe v. State,
7. After the State played the portions of the recording of Gurley's interview that contained her prior inconsistent statements, Appellant sought to play the entire recording for the jury, but the prosecutor objected on the ground of hearsay. The trial court told Appellant that he could introduce only the segments of the recording that would make complete the portions that had already been played, and Appellant was then permitted to play an excerpt in which Gurley told the police at the beginning of the interview that she was on medication and did not know what was going on. Appellant did not object to the trial court's ruling, but he now contends that the court violated the so-called "rule of completeness," see OCGA §§ 24-1-106, 24-8-822,
"The Rule of Completeness prevents parties from misleading the jury by presenting portions of statements out of context, but it 'does not make admissible parts of a statement that are irrelevant to ... the parts of the statement introduced into evidence by the opposing party.' " Jackson v. State,
8. Appellant contends that the admission of the recording of Gurley's interview with the detective and the detective's testimony about the interview violated his Fifth and Sixth Amendment rights. Appellant did not object on these grounds at trial, and he has not supported this enumeration on appeal with any argument. We therefore decline *654to consider it. See Supreme Court Rule 22 ; Holmes v. State,
9. During Appellant's cross-examination of the detective, he asked her whether the surveillance recording of the shooting showed "the shooter" getting into the victim's truck and touching the outside door handle. The detective responded, "I saw you get into ... the truck" and "you actually touched right there near the handle at the bottom and I couldn't tell if you had a screwdriver in your hand or what was in your hand, but I have to admit you were very good at it, you got into that truck within four seconds." Appellant claims that this testimony improperly invaded the province of the jury because the detective gave her opinion about the ultimate issue of Appellant's guilt. Once again, Appellant failed to object to this testimony, and we therefore review his claim only for plain error. See OCGA § 24-1-103 (d).
The detective's answers to Appellant's questions may have been too clever by half, but they did not violate the ultimate issue rule in the new Evidence Code, see OCGA § 24-7-704,
"[A]though it may have been improper for [the detective] to share [her] subjective belief [that Appellant was the shooter seen on the surveillance recording] with the jury explicitly, any rational juror would have guessed that [the detective] believed as much without being told. As we have explained before, '[s]uch comments upon the patently obvious generally pose little, if any, danger of prejudice.' "
Tanner v. State,
10. During Appellant's cross-examination of Shenia Gaither, he asked several goading questions about her drug use and the reward money she received for her tip that led to his arrest. Gaither became emotional and said repeatedly, over the trial court's reprimands, "Y'all done killed somebody" and "Y'all going to hell." When the court's attempts to stop the testimony proved unsuccessful, the court asked the jury to leave the courtroom. After the jury exited, Appellant moved for a mistrial, which the court denied. When the jury returned, the court gave a lengthy curative instruction directing the jurors to disregard everything they heard during Gaither's outburst.
" 'Measures to be taken as a result of demonstrations and outbursts which occur during the course of a trial are matters within the trial court's discretion unless a new trial is necessary to [e]nsure a fair trial.' " Green v. State,
11. Finally, Appellant contends that the trial court violated OCGA § 17-8-57 by expressing its opinion about venue and whether Richey was shot. Near the beginning of voir dire, the court told the jury, "The allegations in this case arise from a shooting that occurred in the parking lot outside of Kroger grocery store. It's the Kroger on Ponce De Leon Avenue near Ponce City Market that used to be City Hall East and the [Sears] Building next to the Beltline." Although Appellant did not object to this statement, he argues that the court lowered the State's burden to prove essential elements of his malice murder charge by telling the jury that a shooting occurred and where it occurred. Citing Rouse v. State,
The trial court framed its statement in terms of "allegations" and never mentioned the venue for the charges (Fulton County). But even putting that aside, Appellant has *656not shown that the court's statement orienting the prospective jurors to the case had any effect on the outcome of his trial. The State presented ample and undisputed evidence that Richey was shot, including the surveillance recording showing the shooting and expert testimony from a medical examiner. The prosecutor also elicited undisputed testimony from several witnesses that the crimes of which Appellant was convicted occurred in Fulton County. If anything, the court's statement aided Appellant, as the court's identification of the area where the shooting took place led to two prospective jurors being struck for cause on Appellant's motion because they said they frequented that neighborhood, knew about the murder and desired a conviction, and did not believe that they could be impartial. Accordingly, Appellant has not shown plain error. See Harris v. State,
Judgment affirmed.
All the Justices concur.
The victim was killed on March 10, 2015. On June 16, 2015, a Fulton County grand jury indicted Appellant and Shontavious Chestnut for felony murder predicated on entering an automobile, entering an automobile, and attempted entering an automobile. Appellant alone was also charged with malice murder, three counts of felony murder (based on armed robbery, aggravated assault, and possession of a firearm by a convicted felon), armed robbery, aggravated assault, two counts of possession of a firearm by a convicted felon, tampering with evidence, and possession of a firearm during the commission of a felony.
Appellant and Chestnut were tried together from May 2 to 9, 2016. Appellant was represented by counsel before trial and during jury selection, but then he asked to represent himself. After conducting a hearing pursuant to Faretta v. California,
Appellant filed a timely motion for new trial, which he amended on February 6, 2017. After an evidentiary hearing, the trial court denied the motion on May 22, 2017. Still representing himself, Appellant filed a timely notice of appeal, which he amended on October 16, 2017. The case was docketed in this Court for the term beginning in December 2017.
In fact, Appellant was not convicted of either felony murder count, as the guilty verdicts on those counts were vacated by operation of law. See Downey v. State,
After the recording of Gurley's interview was admitted into evidence, the prosecutor had technical difficulties playing it, so he had the detective testify about what Gurley had told her. The technical difficulties were then resolved, and pertinent segments of the recording were played for the jury.
OCGA § 24-1-106 says, "When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which, in fairness, should be considered contemporaneously with the writing or recorded statement." Similarly, OCGA § 24-8-822 says, "When an admission is given in evidence by one party, it shall be the right of the other party to have the whole admission and all the conversation connected therewith admitted into evidence."
OCGA § 24-7-704 says:
(a) Except as provided in subsection (b) of this Code section, testimony in the form of an opinion or inference otherwise admissible shall not be objectionable because it embraces an ultimate issue to be decided by the trier of fact.
(b) No expert witness testifying with respect to the mental state or condition of an accused in a criminal proceeding shall state an opinion or inference as to whether the accused did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
The court instructed the jury:
[T]he outburst that you witnessed was unfortunate. It was unacceptable. It also is irrelevant to what you need to decide and so insofar as you recall anything about what Ms. Gaither may have been saying in terms of her thoughts at the time, or you wrote them down, you should disregard what it is that you wrote down or that you recall. It was non-responsive. It wasn't responding to a particular question. And it was a situation where I probably should have suggested we all have a break before things boiled over the way they did. And so I apologize for the extended break and we will proceed in a more orderly fashion for the rest of this examination. But the important thing to remember is my direction to you all that you are not to consider anything you may recall Ms. Gaither having said after we moved beyond a question and answer format and Ms. Gaither became frustrated and upset and continued to speak despite my direction and direction from the [bailiff] to not talk anymore. I think we moved pas[t] that, you all need to move past that, and we're going to return to questions from [Appellant] and answers from Ms. Gaither.
The amended version of OCGA § 17-8-57 says:
(a) (1) It is error for any judge, during any phase of any criminal case, to express or intimate to the jury the judge's opinion as to whether a fact at issue has or has not been proved or as to the guilt of the accused.
(2) Any party who alleges a violation of paragraph (1) of this subsection shall make a timely objection and inform the court of the specific objection and the grounds for such objection, outside of the jury's hearing and presence. After such objection has been made, and if it is sustained, it shall be the duty of the court to give a curative instruction to the jury or declare a mistrial, if appropriate.
(b) Except as provided in subsection (c) of this Code section, failure to make a timely objection to an alleged violation of paragraph (1) of subsection (a) of this Code section shall preclude appellate review, unless such violation constitutes plain error which affects substantive rights of the parties. Plain error may be considered on appeal even when a timely objection informing the court of the specific objection was not made, so long as such error affects substantive rights of the parties.
(c) Should any judge express an opinion as to the guilt of the accused, the Supreme Court or Court of Appeals or the trial court in a motion for a new trial shall grant a new trial.
In Willis v. State, Case No. S18A0035, --- Ga. ----,
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