Cross v. State

• Decision Date: 08 September 2020
• Docket Number: S20A0717
• Citation: 309 Ga. 705,848 S.E.2d 455
• Parties: CROSS v. The STATE.
• Court: Georgia Supreme Court

309 Ga. 705

848 S.E.2d 455

CROSS

v.The STATE.

S20A0717

Supreme Court of Georgia.

Decided: September 8, 2020

Matthew P. Cavedon, Northeastern Circuit Public Defender's Office, 111 Spring Street SE, Gainesville, Georgia 30501, H. Bradford Morris, Northeastern Circuit Public Defender's Office, P. O. Box 390, Gainesville, Georgia 30503, for Appellant.

Patricia B. Attaway Burton, Paula Khristian Smith, Christopher M. Carr, Ashleigh Dene Headrick, Department of Law, 40 Capitol Square SW, Atlanta, Georgia 30334, Lee Darragh, Hall County District Attorney's Office, Wanda Lynn Vance, Northeastern Circuit District Attorney's Office, P. O. Box 1690, Gainesville, Georgia 30503, for Appellee.

Nahmias, Presiding Justice.

Appellant Brandon Cross was convicted in 2003 of malice murder and other crimes in connection with the death of Debra Hymer. On appeal, he contends that the trial court erred by declining to allow him to impeach the hearsay statements of his co-conspirator Jessica Cates, by failing to charge the jury as to the burden of proof for co-conspirator statements, and by admitting three autopsy photographs and a video recording of the crime scene. He also argues that he should be granted a new trial because the record is insufficiently complete. As explained below, we affirm.¹

1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. In early January 2002, Appellant, who was 18 years old, lived in Hymer's house in Hall County with Hymer and 18-year-old Cates, whom Appellant was dating.² About three weeks before Hymer was killed, Appellant got into an argument with her, and she told Appellant to move out. Appellant moved out but would return to the house when Hymer was not there.

On the night of January 26, Junior Adams, who did not know Hymer, was driving on a highway near Lula, Georgia, when he saw her standing on the shoulder of the highway crying. Adams stopped to ask if she needed help; Hymer asked him to give her a ride home, and he agreed. Hymer then asked Adams to come inside her house to help build a fire in her wood stove, and he agreed. When they got inside, Cates came out of her bedroom and started arguing with Hymer. Cates was wearing pajama pants with a drawstring. During the argument, Cates received a phone call and then asked Adams if he would take her to pick up a friend at a restaurant in Gainesville; he agreed. As he was leaving with Cates, Hymer called her a "b*tch" and a "sl*t," and said, "Don't come back. You are not welcome here anymore." When Cates and Adams arrived at the restaurant, her friend was not there, so Adams drove Cates back home, dropped her off at the end of the driveway, and left around midnight.

Three days later, on January 29, Cates called her best friend Kay Ivester. Cates was crying and upset, and she told Ivester that Appellant had left to go to Michigan.³ Cates then told Ivester the following. On the night of January 26, when Cates returned home from the Gainesville restaurant, Hymer had locked her and Appellant outside, where it was raining and cold. Appellant said, "[W]ell, we have got to do something about it." Cates and Appellant then went inside and got into a fight with Hymer, and Appellant strangled Hymer and beat her head into the floor, killing her. Cates cleaned up Hymer's blood, burned her clothes, and helped dispose of her body on the property.

A few days later, Cates called Ivester again and told her that Hymer had been found and that she was joking about what she told Ivester before. When Ivester later learned that Hymer had not actually been found, she placed an anonymous phone call to the Hall County Sheriff's Office and relayed to an officer what Cates told her about Hymer's killing, which led to an investigation.

While Appellant was in Michigan, he and Cates had a series of phone conversations, audio recordings of which were played for the jury at his trial, in which they discussed their belief that Ivester placed the anonymous phone call to the investigators and Appellant said that Ivester had reported most of the details about Hymer's killing correctly. They also discussed a false alibi for Appellant that Cates had given to the investigators. In one call, Cates said that investigators had been at Hymer's house but left; Appellant replied, "I was about to start part two of this killing spree." In another call, Cates told Appellant that investigators were searching the property, and Appellant said, "I don't think they're gonna go way back there, and they're gonna start walking, and they're gonna be like f**k this.... That's a lot of acreage."

On February 6, eleven days after Hymer was killed, investigators searched her house and the surrounding property. In the house, they found Hymer's empty purse in a cabinet beside the wood stove. On the property, they found among other things a broken wheelbarrow and a mop. There were blood stains on the carpet in Hymer's living room, and the mop later tested positive for the presence of blood. On February 8, investigators found Hymer's body covered with dirt, leaves, and sticks in a mineshaft opening in the woods behind her house. The medical examiner who performed Hymer's autopsy on Feburary 9 said that she died either from strangulation or blunt force head trauma. Her head had been struck so hard that she had bled into her sinus cavities.

Appellant was interviewed by the Hall County investigators in Michigan on February 8 and 9. The interviews were audio recorded and played for the jury at trial. After initially blaming Hymer's husband for her death, Appellant gave the following account of the night of her killing. Appellant and Cates were sitting in her bedroom when he saw a car pull into the driveway, so he jumped out a window and hid in the woods behind the house. Sometime later, after he had moved to an outbuilding closer to the house, he saw Cates walking up the driveway alone, so he whistled at her to get her attention. Cates went into the outbuilding, told Appellant about the argument that she had with Hymer, and said, "You're gonna have to kill her, that's the only thing we can do. It's either that or just stand out here and freeze, ... either her or us." Appellant ultimately agreed, and he and Cates decided that he would use the drawstring on Cates's pajama pants to strangle Hymer.

Appellant and Cates walked up to the house. Cates knocked on the front door, which Hymer opened, and Cates walked inside and began to argue with her. Appellant, who was not initially visible to Hymer, then walked into the house; Hymer looked at him and said, "Get the f**k out of my house." Cates said, "Do it," and Appellant strangled Hymer to death with the drawstring while Cates watched and smoked a cigarette. When Appellant let go of the string, Hymer fell and hit her head on the floor, and her head started bleeding, but Appellant claimed that he did not bash her head on the floor or otherwise strike her.

Appellant and Cates then wrapped Hymer in a sheet, carried her body outside, and placed her in a wheelbarrow. Appellant tried to roll the wheelbarrow into the woods, but it was broken, so he pulled Hymer's body out and threw the wheelbarrow down an embankment. Appellant and Cates then dragged the body to a trail in the woods behind the house and left her there; while they were dragging Hymer, her shirt came off.

Appellant and Cates returned to the house, and Cates emptied Hymer's purse and burned the contents, along with Hymer's shirt and the sheet in which they had wrapped her body, in the wood stove. Appellant and Cates went back outside and continued dragging Hymer's body to the opening of an abandoned mineshaft. Appellant threw the body into the opening and covered Hymer with dirt, leaves, and sticks. Appellant and Cates then walked back to the house, where Cates cleaned up Hymer's blood using a mop. The next day, Appellant and Cates went back to Hymer's burial site and added more dirt, leaves, and sticks over her body.

During the interviews, Appellant accurately described the items the investigators found at the crime scene, and he drew a diagram of the property showing where he and Cates had disposed of the items that matched what the investigators had found. Investigators also seized the shoes that Appellant was wearing on the night of Hymer's killing; blood on the shoes was later identified as Hymer's.

Appellant does not dispute the legal sufficiency of the evidence supporting his convictions. Nevertheless, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.E.2d 560 (1979). See also Vega v. State , 285 Ga. 32, 33, 673 S.E.2d 223 (2009) (" ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ " (citation omitted)).⁴

2. Appellant first contends that the trial court abused its discretion by declining to allow him to impeach Cates's hearsay statements to Ivester with other, inconsistent hearsay statements that she later made to an investigator and with the plea bargain that she later made with the State. At trial, Appellant argued that Cates's statements to the investigator were admissible as co-conspirator statements under former OCGA § 24-3-5,⁵ and he asked the court if her plea bargain could be used to impeach her if she testified. The trial court ruled that the statements were not admissible under § 24-3-5, and Cates invoked her right against selfincrimination, so she did not testify. Appellant never argued at trial that Cates's statements to the investigator or her plea bargain should be admitted to impeach her hearsay statements to Ivester, and thus the trial court did not rule on the...