Boothe v. State

• Decision Date: 01 July 2013
• Docket Number: No. S13A0042.,S13A0042.
• Citation: 293 Ga. 285,745 S.E.2d 594
• Parties: BOOTHE v. The STATE.
• Court: Georgia Supreme Court

293 Ga. 285

745 S.E.2d 594

BOOTHE

v.The STATE.

No. S13A0042.

Supreme Court of Georgia.

July 1, 2013.

Stanley W. Schoolcraft III, Jonesboro, Office of the Public Defender, GA, for appellant.

Elizabeth A. Baker, Asst. Dist. Atty., Dekalb County District Attorney's Office, Jason Barrett Green, Asst. Dist. Atty., Kathryn L. Powers, Asst. Dist. Atty., Office of the District Attorney, Tracy Graham Lawson, Dist. Atty., Frances C. Kuo, Deputy Chief Asst. Dist. Atty., Clayton County District Attorney's Office, Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Andrew George Sims, Asst. Atty. Gen., Department of Law, GA, for appellee.

NAHMIAS, Justice.

Following a jury trial, Appellant Timothy Boothe was found guilty of malice murder and other offenses in connection with the death of Geneva Strickland.¹ Appellant contends, among other things, that the trial court erred by admitting into evidence photocopies of police sketches of two men that were based on descriptions from one of the State's witnesses. We conclude that, even assuming that the admission of the sketch copies violated the “best evidence” rule of Georgia's old Evidence Code, see former OCGA § 24–5–4(a),² any error was harmless. Appellant's other enumerations of error lack merit. Accordingly, we affirm his convictions.

1. Viewed in the light most favorable to the jury's verdict, the evidence presented at trial showed as follows. On October 31, 2007, Clayton County police officers and firefighters responded to a fire at the home of Geneva Strickland around 11:00 p.m. After the fire was extinguished, police found Strickland dead in one of her bedrooms. Her wrists and legs had been bound with the kind of long plastic zip ties ordinarily used to secure ductwork or plumbing pipes, and her mouth was covered with an Ace bandage that had been wrapped around her head seven times. When the medical examiner unwrapped the Ace bandage, he found, in the fifth turning of the wraps, a blue latex glove.³ Strickland died from carbon monoxide poisoning coupled with suffocation and affixial restraint.

Earlier that night, Torie Gertsch, who was riding her bike in front of Strickland's house, smelled smoke coming from the area and saw a white man and a black man hanging around the house. When the two men saw Gertsch, they chased her, but she was able to escape on her bicycle. The next day, Gertsch described the two men to GBI agents and a GBI sketch artist, who drew a pencil sketch of each man. At trial, the State did not account for the original sketches; over Appellant's objection, the trial court admitted photocopies of the sketches into evidence.

DNA testing identified Appellant's nuclear DNA (nDNA) inside the blue latex glove that was found wrapped in the Ace bandage covering Strickland's mouth. ⁴ The only other DNA evidence found on the glove was a partial profile consistent with the victim's DNA. In addition, a firefighter found a black hoodie-type mask in the front yard of Strickland's home and placed the mask on a utility box, where the GBI recovered it. One testable strand of head hair was found on the mask. Microscopic analysis indicated that the hair came from Appellant or someone whose hair possessed the same microscopic characteristics, and mitochondrial DNA (mDNA) testing of the hair showed that it matched Appellant's mDNA. Evidence also showed that Appellant had previously worked as a handyman at the victim's house and knew that she kept large amounts of cash there.

After receiving the results of the DNA testing of the glove, police officers secured an arrest warrant for Appellant and went to his mother's house to try to locate him. They had to knock on the door for an extended time before anyone answered. Appellant's mother eventually opened the door, and she and his sister told the officers that no one else was home. When the officers searched the house, however, they found Appellant hiding in the attic, which could be accessed only by pull-down stairs. The police told him to come down, but Appellant instead stood in the attic opening hiding one of his hands like he had a gun and yelling at the officers to shoot him. He surrendered after a short standoff.

Viewed in the light most favorable to the verdict, 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 and sentenced. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.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)).

2. Appellant argues that the trial court erred by admitting into evidence photocopies of the two police sketches drawn from the descriptions provided by Gertsch. He contends that the admission of copies of the sketches, as opposed to the original sketches, violated the “best evidence” rule set forth in former OCGA § 24–5–4(a). We need not decide if this contention is correct, because it is clear that any error regarding the admission of the sketch copies was harmless.

(a) Georgia's archaic “best evidence” rule stated: “The best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for.” Former OCGA § 24–5–4(a). Under that provision, “when the contents of a writing are material, the original of the writing must be produced or its absence accounted for” before the writing could be admitted into evidence. Clark v. State, 271 Ga. 6, 11, 515 S.E.2d 155 (1999). Only when the original writing was unavailable for some reason other than the fault of the proponent did the trial court have discretion to admit a duplicate or copy of the original.⁵ See Merrill Lynch v. Zimmerman, 248 Ga. 580, 580, 285 S.E.2d 181 (1981). Here, the “writings” at issue were two pencil sketches, and it is undisputed that the State did nothing to account for the whereabouts of the original sketches when it offered the copies of them at trial.

Former OCGA § 24–5–4(a) did not define the term “writing,” and the State argues that the sketches do not constitute “writings” for purposes of the old best evidence rule.⁶ This appears to be a question of first impression for Georgia's appellate courts. In cases where former OCGA § 24–5–4(a) has been applied, the “writing” appears to have been a document containing words. See, e.g., Norris v. State, 289 Ga. 154, 158, 709 S.E.2d 792 (2011) (applying the best evidence rule to a letter); Baptiste v. State, 288 Ga. 653, 655–656, 706 S.E.2d 442 (2011) (applying the rule to search warrants and affidavits). See also Merrill Lynch, 248 Ga. at 581, 285 S.E.2d 181 (explaining that the old best evidence rule “recognized the central position writings have in the law. In many instances significant rights turn on the precise language used in a writing. When that is the case, the law prefers the writing itself to be produced.”). Photographs were not considered writings. See Smith v. State, 236 Ga. 5, 8, 222 S.E.2d 357 (1976) (holding that the best evidence rule did not apply to a photograph of a police lineup). And the probative value of a police sketch is not in any language or words, but rather, like a picture, in the image depicted.

On the other hand, a sketch, like a handwritten document, is produced by a writing implement and is based on the artist's subjective interpretation of information supplied to the artist as she draws on the page. And as Appellant points out, a California court has concluded that a police sketch was a writing for purposes of that state's best evidence rule, although the statute there defined the term “writing” expansively. See People v. Garcia, 201 Cal.App.3d 324, 328 n. 1, 247 Cal.Rptr. 94 (1988).⁷

Thus, whether a police pencil sketch is a “writing” under the old best evidence rule is a close question. And we need not decide that question to decide this case, because even assuming that the sketch copies were inadmissible under former 24–5–4(a), any error in admitting them was clearly harmless.

(b) In determining if an error is harmless, we “review the record de novo.” Arizona v. Fulminante, 499 U.S. 279, 295, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). In doing so, we weigh the evidence as we would expect reasonable jurors to have done so, as opposed to assuming that they took the most pro-guilt possible view of every bit of evidence in the case.⁸ Applying the test for determining whether a non-constitutional, evidentiary error was harmless, we have no difficulty concluding that it is “highly probable” that any error regarding the admission of the police sketch copies did not contribute to the jury's guilty verdict in this trial. Lindsey v. State, 282 Ga. 447, 450, 651 S.E.2d 66 (2007).⁹

Review of the trial record reveals that the sketches of the two men Gertsch saw in the vicinity of the crime scene were not important inculpatory evidence at trial. The two pencil sketches are in the record. One depicts a black man with close-cut hair; the other is of a white man with long, straight sandy-brown hair and no mustache. Also admitted into evidence at trial was Appellant's September 21, 2007, driver's license, the photograph on which shows that Appellant is a white man who, in the time period of the crimes, had long dark brown or black hair, a thick mustache, and a beard. Thus, one of the sketches that may have been admitted erroneously—the one of the black potential perpetrator—was entirely exculpatory of Appellant; indeed, the record offers no other evidence of this man's identity or of a second person being involved in the crimes. And comparing the other sketch to Appellant's license photo, the jury easily could have considered that sketch to be exculpatory as well; at best it served only to not exclude Appellant as a potential...