Bamberg v. State

• Decision Date: 28 February 2020
• Docket Number: S19A1054,S19A1052
• Citation: 308 Ga. 340,839 S.E.2d 640
• Court: Georgia Supreme Court
• Parties: BAMBERG v. The STATE. Bamberg v. The State.

308 Ga. 340

839 S.E.2d 640

BAMBERG

v.The STATE.

Bamberg

v.The State.

S19A1052

S19A1054

Supreme Court of Georgia.

Decided: February 28, 2020

Rodney Samuel Zell, Zell & Zell, P.C., 1111 Bull Street, Savannah, Georgia 31401, for Appellant in S19A1052.

Clare Lillian Nolan, Brooks Injury Law, LLC, 6050 Peachtree Parkway, Suite 240-402, Peachtree Corners, Georgia 30092, for Appellant in S19A1054.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Mark Samuel Lindemann, Assistant Attorney General, Department of Law, 40 Capitol Square SW, Atlanta, Georgia 30334, Andrew J. Ekonomou, Thomas Edwars Buscemi, Brunswick Judicial Circuit District Attorney's Office, 701 H Street, Box 301, Brunswick, Georgia 31520, Jacquelyn Lee Johnson, District Attorney, Brunswick Judicial Circuit District Attorney's Office, P.O. Box 369, Woodbine, Georgia 31569, Jan Kennedy, A.D.A., Brunswick Judicial Circuit District Attorney's Office, 37 Tippins Street, Suite C, Baxley, Georgia 31513, for Appellee.

Boggs, Justice.

After a 2009 jury trial, Damon Bamberg and his mother, Sonya Bamberg, were convicted of murder and other offenses arising out of the shooting death of Damon's ex-wife, Allison Nicole "Nikki" Bamberg.¹ They appeal, asserting error in the reconstruction of a missing transcript of the first day of trial and in the denial of their motions to reopen the evidence to submit a transcript of a "true crime" television show. In addition, Damon asserts insufficiency of the evidence and error in the admission of a statement made by Sonya, and Sonya asserts that the trial court impermissibly commented on the evidence and the credibility of witnesses. For the reasons stated below, we affirm.

1. Construed in the light most favorable to the jury's verdicts, the evidence presented at trial showed that Damon and Nikki Bamberg had a contentious and violent marriage that ended in divorce.² At the time of the events at issue here, the parties were separated and Nikki was living in an apartment in Hazlehurst, in Jeff Davis County. Witnesses testified that, on several occasions, Damon was violent with both Nikki and his first wife. Nikki's friend and coworker testified that Sonya told Nikki in the friend's presence, "I will see you dead before I let you have those boys," referring to Damon and Nikki's two children. Two witnesses testified that in October or November of 2007, Sonya approached one of them while Damon was present and solicited one of the witnesses to murder Nikki for $25,000. In November 2007, Damon took out a $50,000 life insurance policy, with a rider in the amount of $150,000 for accidental death, on Nikki and named Sonya as the beneficiary. While confined in the Jeff Davis County jail on the instant charges, Damon told a fellow inmate, Burtis Taylor, that "Mama said it's elimination time." Police officers and GBI agents found a calendar on Damon and Sonya's refrigerator that had Friday, January 18, 2008 marked with a "frowny face" and the words, "hell begins."

On January 18, 2008, four days after the divorce became final, Nikki drove to a convenience store in Uvalda, in Montgomery County, to deliver the couple's two children for visitation. Damon and Sonya were in a distinctive car, a 1972 Chevrolet Chevelle with a skull and crossbones front license plate.³ Investigators from the Jeff Davis County Sheriff's Office and the GBI testified that the convenience store video surveillance cameras showed that Nikki left the store at 6:01 p.m, followed by Damon two minutes later. In a call that cell phone records showed began at 6:05 p.m., Nikki was talking with her father when she exclaimed that her rear window had just cracked and that she thought somebody was shooting at her; then she stopped talking, and the phone "made a bumping sound like she had dropped it." Nikki pulled over to the side of Highway 221 in Jeff Davis County, at a natural gas substation approximately one mile south of the Montgomery County line. While Nikki was still in her vehicle, she was shot twice in the head and neck at close range, causing her death.

Between 6:08 and 6:10 p.m., a motorist driving southbound on Highway 221 was just entering Jeff Davis County from Montgomery County when he saw a 1972 Chevrolet Chevelle with an unusual skull-and-crossbones front tag travelling northbound on Highway 221 at "at least" 80 to 90 miles per hour, with two adults in the front seat. As the motorist passed the substation south of the bridge, he saw a car with its dome light on and a leg sticking out of the open driver's door, but assumed at the time that the driver was talking on the phone.

Damon initially told a GBI investigator that, at the meeting at the convenience store, Nikki fought with him over the children's medication and injured his hand, and he went into the convenience store to get ice for his hand. Then, he said, he and his mother drove straight to the Montgomery County Sheriff's Office to report that Nikki had assaulted him, while Nikki drove off in the opposite direction, towards Hazlehurst.⁴ But while Damon was confined in the Jeff Davis County jail, he told another inmate, Don Ellis, that he and his mother had stopped to pick up the children at the store; that his wife had fussed at him, grabbed the diaper bag, and twisted his arm; that she left in her car and he and his mother pursued her, with his mother driving; that his wife "wouldn't pull over so he ... shot at the car" and she then pulled over; that he walked up to the car and she was trying to crawl out the passenger side, so he shot her; and that he and his mother then drove to the Montgomery County Sheriff's Office as fast as they could to file a police report claiming that Nikki had assaulted him in Uvalda.

After Sonya was arrested and confined in the Jeff Davis County jail, she became friendly with inmate Burtis Taylor, who was due to be released. Shortly before Taylor's release, Sonya drew a map and instructed Taylor to retrieve a pistol from Damon's brother, as well as some magazines and casings that had been hidden in a chicken pen behind her house in Mt. Vernon, to conceal them on another person's property, and then to inform law enforcement so that the other person would be blamed for the murder.

Acting on the information that some gun parts were buried behind Sonya's house, investigators from the Jeff Davis County Sheriff's Office and the GBI searched the area and found several magazines and other gun parts consistent with a Hi-Point brand .45 ACP pistol, as well as a box of Winchester brand .45 ACP caliber cartridges and bullets. Ejected shells found at the scene of Nikki's death, ejected shells found approximately four tenths of a mile down the road, and the bullet fragments retrieved from Nikki's body were all consistent with having been fired from a single, unknown Hi-Point .45 ACP pistol. Damon's brother testified that he received a .45 caliber Hi-Point pistol in exchange for doing repair work on a car, that Damon and Sonya were at his house on the day of the incident, and that he discovered the pistol was missing from his truck after Nikki's death. That pistol was never recovered.

(a) Damon challenges the sufficiency of the evidence to support his convictions, pointing to an apparent discrepancy between the timeline of events testified to by Jeff Davis County and GBI investigators and notations made in a handwritten log kept by a former Montgomery County Sheriff's Office dispatcher, whom the Bambergs called as a witness. Damon contends that because the evidence against him was "akin to" circumstantial evidence, the State therefore was required to exclude every reasonable hypothesis other than his guilt; and that as shown by the relevant times of entries in the handwritten log, he could not have committed the murder because the log showed that he was at the Montgomery County Sheriff's Office at the time Nikki was killed. He surmises that Nikki must have been killed by an unknown assailant in a "road rage" incident.

Both former OCGA § 24-4-6 and OCGA § 24-14-6 provide: "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." Here, however, the State presented direct evidence of Damon's guilt, including his statement to a fellow inmate describing in detail how he killed Nikki. See Goins v. State , 306 Ga. 55, 56 (1), 829 S.E.2d 89 (2019) (evidence not wholly circumstantial when it included appellant's confession to former cellmate).

Moreover, to the extent that Damon's convictions did depend upon circumstantial evidence, "this evidence need not exclude every conceivable inference or hypothesis; it must rule out only those that are reasonable. And it is principally for the jury to determine whether an alternative hypothesis is reasonable." (Citations and punctuation omitted.) Id. Here, while the entries in the handwritten log appear inconsistent with the timeline established by the testimony of witnesses from the Jeff Davis County Sheriff's Office and the GBI, the evidence presented at trial showed that the log contained numerous errors and omissions with respect to other events occurring on the night of the shooting and the timing of those events. For example, on cross-examination, the dispatcher acknowledged that "there was a lot of stuff going on ... but it might not have all got recorded," and that if the times entered in his log were not consistent with those of the Jeff Davis County Sheriff's Office, they "would be incorrect." Moreover,

it was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence. Likewise, it was for the jury to decide whether the defense theory that [an unknown assailant] was the killer was reasonable and not excluded by the other evidence. ...

(...