Belmar v. State, S05A1564.

Citation279 Ga. 795,621 S.E.2d 441
Decision Date24 October 2005
Docket NumberNo. S05A1564.,S05A1564.
PartiesBELMAR v. STATE.
CourtSupreme Court of Georgia

Gerard Bradley Kleinrock, for Appellant.

Gwendolyn Keyes Fleming, Dist. Atty., Robert M. Coker, Sheila Ann Connors, Asst Dist. Atty., Hon. Thurbert E. Baker, Atty. Gen., Robin Joy Leigh, Asst. Atty. Gen., for Appellee.

BENHAM, Justice.

Appellant Samuel Nathaniel Belmar was convicted of malice murder in connection with the homicide of Savalas Cousar and appeals the judgment of conviction entered against him.1 Finding no reversible error to have been committed, we affirm the conviction.

On Saturday, April 22, 2000, the body of Savalas Cousar was found partially covered by a blanket in the reclined passenger seat of his car which was parked with its engine running in the parking lot of a Dekalb County elementary school. The forensic pathologist who performed an autopsy on the body determined the victim had been shot in the face by a shotgun from a distance of 2-6 inches. The shotgun slug and cardboard wadding had passed through the victim's skull and were found in a kerchief worn on his head. The day after the body was discovered, a shotgun consistent with the slug and wadding was found by children in the backyard of the home of the girlfriend of appellant Samuel Nathaniel Belmar. The owner of that shotgun testified he had given it to appellant for safekeeping. Appellant's girlfriend initially told police appellant had been with her the evening the victim was last seen alive but, upon further questioning, admitted she had not been with him and had lied to police at appellant's request. The girlfriend testified appellant came to her home Saturday morning and told her he had killed someone he believed had drugged appellant's drink and robbed appellant at a local club. Appellant did not name the person, but identified the purported robber as the man who had accompanied him to the club Friday evening. The girlfriend stated appellant told her he had awakened in the club, found his companion in the club's parking lot, and had driven the companion's car to the nearby school where he shot the companion in the face with a "gauge" while the victim was sleeping.

A family friend of appellant testified appellant had asked her to tell police he had been with her the entire weekend the victim was killed. When threatened with the possibility of a perjury prosecution, the witness told police appellant had visited her home on Sunday morning and had told her he believed he had killed someone. In a non-custodial statement to investigating officers, appellant admitted he and the victim had worked together for about a week, with appellant serving as the victim's job trainer; the victim had given him a ride to his girlfriend's home at the end of the workday on Friday; the victim invited appellant to go to a club with him that evening; and the victim went home to shower and dress for the evening out.

1. The evidence presented by the State was sufficient to authorize a rational trier of fact to find appellant guilty of malice murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant contends the trial court committed reversible error when, pursuant to the "necessity" exception to the rule against the admission of hearsay, it permitted the victim's mother to testify to the contents of a statement made to her by the victim. Over defense objection, the victim's mother testified the victim had told her the evening before his body was found that he was going to a club with a co-worker.

Two requirements must be met in order for a trial court to admit hearsay under the "necessity" exception: "necessity" and "particularized guarantees of trustworthiness." Ward v. State, 271 Ga. 648(2), 520 S.E.2d 205 (1999). To meet the "necessity" component, the hearsay proponent must show the declarant is unavailable and the statement is relevant to a material fact and is more probative of that fact than other evidence which may be offered; to meet the "trustworthiness" requirement, the declaration must be "`coupled with circumstances which attribute verity to it.' [Cit.]." Id. The trial court in the case at bar allowed the hearsay after the State noted the hearsay declarant was dead and had never retracted his statement to his mother before his death, and the State offered to ask the victim's mother whether the victim was "generally truthful with her about his comings and goings." Even if we assume for the sake of argument that the tripartite "necessity" prong was met in this case, we conclude it was error to admit the hearsay because the State did not present circumstances attributing verity to the hearsay.

Whether testimony was accompanied by particular guarantees of trustworthiness is a matter for the trial court's discretion. Myers v. State, 275 Ga. 709(2), 572 S.E.2d 606 (2002). In the case before us, the only information the trial court had on the topic was the prosecutor's suggestion that she could ask the victim's mother whether the victim was generally truthful with her about his plans. The victim's mother was never asked about her son's truthfulness or about the state of the relationship between her and her son, leaving only the fact that they were mother and son. The existence of a familial relationship alone is not sufficient to establish the required particularized guarantees of trustworthiness. Id., 275 Ga. at 712, 572 S.E.2d 606; Carr v. State, 267 Ga. 701(3), 482 S.E.2d 314 (1997), overruled on other grounds in Clark v. State, 271 Ga. 6(5), 515 S.E.2d 155 (1999).

The erroneous admission of hearsay testimony is not reversible error where the hearsay is cumulative of legally admissible evidence of the same fact. Myers v. State, supra, 275 Ga. at 712, 572 S.E.2d 606. The fact that the victim was going to a club with a co-worker the night he was killed was established by appellant's acknowledgment to police officers in his non-custodial statement that he and the victim worked together and that the victim had invited him to go out with him that Friday evening. The fact that appellant accompanied the victim to a club was established by the testimony of appellant's girlfriend that appellant had told her he had gone to a club with a man who had drugged and robbed him, and had killed the man and left him in his car in the local elementary school's parking lot. The hearsay being cumulative of legally admissible evidence, its erroneous admission into evidence does not constitute reversible error.

3. Appellant also takes issue with the admission into evidence of a photograph of appellant's right upper back displaying a tattoo reading "12 gauge" and containing rectangular shapes which the assistant district attorney described as "totally unfamiliar" and "meaningless" to her. The photo was the subject of appellant's motion in limine, to which the State responded the photo was relevant because the killing was done with a 12-gauge shotgun and was probative of appellant's state of mind and his motive. Over objection, the trial court admitted the photo, finding it relevant since the case involved allegations the perpetrator used a 12-gauge shotgun and ruling the photo not "unreasonably prejudicial." On appeal, appellant argues the admission of the photo served no purpose other than to suggest he committed the crime because a 12-gauge shotgun was the murder weapon. The State maintains the tattoo reflected appellant's state of mind regarding 12-gauge shotguns and that his actions were motivated by his access to and attachment to 12-gauge shotguns.

We have upheld the admission of a photograph of a tattoo on the body of the defendant when it is evidence of a possible motive for the crime (Allen v. State, 272 Ga. 513(4), 530 S.E.2d 186 (2000)), or when it is used for purposes of identification. Carruthers v. State, 272 Ga. 306(10), 528 S.E.2d 217 (2000) (review of record shows photo of defendant's tattoo of a tiger admitted after witness described the tiger tattoo on the man she saw with victim). Other courts also have admitted evidence of tattoos for purposes of establishing motive or to aid in identification. State v. Schulz, 691 N.W.2d 474 (Minn.2005) (photo of defendant's tattoo admissible when it helped to identify voice on telephone audiotape claiming to have committed the crime); Pagan v. State, 809 N.E.2d 915 (Ind.App.2004) (fact that defendant had a tattoo on his hand was relevant to victim's identification of him as the robber, though testimony on the meaning of the tattoo was irrelevant and potentially prejudicial); State v. Meade, 196 W.Va. 551, 474 S.E.2d 481 (1996) (trial court did not abuse discretion in directing defendant to reveal tattoos when they were relevant to the identity of the perpetrator); Thomas v. State, 811 P.2d 1337, 1343 (Okla.Crim.App.1991) (evidence concerning defendant's tattoo admissible to identify defendant); State v. Hubbard, 659 S.W.2d 551 (Mo.Ct....

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    • United States
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    • October 4, 2022
    ...v. State, 280 Ga. 179, 180 (3) (a) (626 S.E.2d 123) (2006) (citing Felder v. State, 270 Ga. 641, 646 (8) (514 S.E.2d 416) (1999)); Belmar, 279 Ga. at 800 (3) (citing 266 Ga. at 576); London v. State, 274 Ga. 91, 94 (4) (c) (549 S.E.2d 394) (2001) (citing Felder, 266 Ga. at 576); Felder, 266......
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    ...over his mailbox shortly before the collision and that the Appellant was crying and "jittery" at that time.63 See Belmar v. State , 279 Ga. 795, 800 (3), 621 S.E.2d 441 (2005) (Even if the trial court erred in admitting certain evidence, "[r]eversal is not required if the evidence of guilt ......
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3 books & journal articles
  • Evidence - Marc T. Treadwell
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 58-1, September 2006
    • Invalid date
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