Brittain v. State

CourtUnited States Court of Appeals (Georgia)
Citation329 Ga.App. 689,766 S.E.2d 106
Docket NumberNo. A14A1145.,A14A1145.
PartiesBRITTAIN v. The STATE.
Decision Date17 November 2014

329 Ga.App. 689
766 S.E.2d 106

BRITTAIN
v.
The STATE.

No. A14A1145.

Court of Appeals of Georgia.

Nov. 17, 2014.


766 S.E.2d 108

Deborah W. Young, for Appellant.

Elizabeth A. Baker, Asst. Dist. Atty., Tracy Graham–Lawson, Dist. Atty., for Appellee.

Opinion

DILLARD, Judge.

329 Ga.App. 689

Following a trial by jury, Elijah Ames Brittain was convicted of aggravated assault, kidnaping, and burglary. Brittain appeals these convictions, contending that the trial court erred by (1) denying a motion to complete the record, (2) admitting hearsay evidence under the doctrine of forfeiture by wrongdoing, (3) permitting similar-transaction evidence, and (4) denying his motion for new trial when he received ineffective assistance of counsel in numerous regards. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury's guilty verdict,1 the record reflects that on May 26, 2007, the victim, Chastity Jones, was asleep in her Clayton County house with only her infant daughter at home when she suddenly awoke around 4:00 a.m. to find Brittain in her bedroom. Her husband, Brutus, had left the home earlier in the evening but had not yet returned. Brittain was acquainted with both Jones and Brutus because Brutus was a member of Brittain's restaurant-robbery crew.

Brittain told Jones that Brutus had gotten him into some trouble before forcing Jones to leave her baby, placing her in the trunk of a car, binding her with a phone cord to the point that ligature marks were left on her wrists four days later, and driving her to a secluded location in Cobb County. Evidence later established that Brittain was familiar with this part of Cobb County from previously committing a robbery in the area and because one of his girlfriends worked nearby.

Once they reached this location, Brittain tied Jones to a tree and threatened her life at gunpoint. At some point, Brittain decided to

329 Ga.App. 690

leave but indicated that he would return to kill Jones if he did not hear from Brutus within the next 30 minutes. Nevertheless, in the interim, Jones managed to escape and run to a nearby home, where the occupant allowed her to use his cell phone and drove her to a gas station to call 911.2

Using her rescuer's cell phone, Jones called various friends, explaining what had transpired and pleading with them to check on her child. Then, once at the gas station, Jones called 911 from a pay phone, the recording of which was played for the jury

766 S.E.2d 109

without objection, and the parties stipulated that the call occurred at or near the time of the event. Cobb County officers responded to find Jones barefoot, clad in pajamas, covered in mud up to her knees, and carrying only a small personal bag and a phone cord. Upon realizing that Jones had been abducted from Clayton County, both she and investigation of the case were then turned over to authorities from that jurisdiction.

Meanwhile, in response to Jones's frantic calls, friends converged at her house to find her infant child alone and unharmed but lying on the bedroom floor. The home's garage was left wide open and the door unlocked. Indeed, Jones's husband, Brutus, had not been home since before Jones went to bed the previous night, and he was considered missing. But unbeknownst to either Jones or her friends at that time, just a few hours earlier around 4:45 a.m., Fulton County police responded to a report of a body in the roadway near the border with Clayton County. The body was later identified as that of Brutus Jones, who had been shot in the head. Brutus's cell phone and keys were both missing, and although there were bloody tire tracks near the body, no vehicle was found in the immediate vicinity. Brutus's vehicle, however, was recovered two days later, abandoned not far from the street where his body was found. The passenger-seat headrest was splattered with dried blood, and the garage-door remote was missing.

When law enforcement realized that Jones's husband had been killed, some of her interviews with the various jurisdictions involved in the two investigations were videotaped. And during those interviews, she explained to law enforcement that Brittain had come by the couple's home at approximately 10:35 p.m. the night of the abduction and had rather ominously asked if he could look around the upstairs by suggesting that he was considering whether to rent a

329 Ga.App. 691

similar house. Jones also indicated that Brittain was driving a red Pontiac Grand Am that evening.

In the aftermath of all that transpired, Jones immediately moved out of the Clayton County residence she had shared with Brutus, and in fact moved five times within the next year out of fear. However, in June 2008, Jones—who was accompanied by a good friend—applied for food stamps through Fulton County DFCS, where one of Brittain's paramours, Montessia Tinch, worked as a food-stamp processor. During her relationship with Brittain, Tinch frequently allowed him to use her car, a red Pontiac Grand Prix. And as part of Tinch's job with DFCS, she could access an applicant's home address.3 Tragically, two days after Jones applied for food stamps, she went missing under circumstances indicative of foul play (more fully described infra ), and was never heard from again.

Brittain's prosecution for burglary, kidnaping, and aggravated assault related to the May 2007 abduction was stalled after Jones disappeared in 2008, but the case was reinvigorated and brought to trial after a cellmate came forward with information Brittain shared about Jones's abduction, Brutus's murder, and other cases that so greatly disturbed the cellmate that he felt compelled to approach law enforcement. At trial, in addition to corroborating much of Jones's version of the abduction by providing details Brittain had shared, the cellmate also testified that Brittain claimed to have a five-step method to problem-solving, with step two being to “get rid” of the problem, even if that means murder.

Brittain was tried and convicted of the offenses related to the 2007 abduction, and this appeal follows. We will address Brittain's claimed errors in turn, those being that the trial court erred by (1) denying a motion to complete the record, (2) admitting hearsay evidence under the doctrine of forfeiture

766 S.E.2d 110

by wrongdoing, (3) permitting similar-transaction evidence, and (4) denying his motion for new trial when he received ineffective assistance of counsel in numerous regards.4

329 Ga.App. 692

1. First, Brittain argues that the trial court erred in denying a motion to complete the record when various DVDs played for the jury at trial and entered into evidence as exhibits were not transcribed.

To begin with, the relevant motion and a subsequent order continuing the motion-for-new-trial hearing do not appear in the appellate record, but Brittain attached a copy of the motion and order as an exhibit to his brief. It is, of course, well established that exhibits attached to an appellate brief, but not appearing in the record transmitted by the trial court, “cannot be considered by this court and afford no basis for reversal.”5 Nevertheless, Brittain's argument that the lack of transcription of the DVDs of videotaped police interviews resulted in an incomplete record is without merit. Indeed, the relevant DVDs were admitted as exhibits into the record. Accordingly, the lack of transcription of the DVDs does not constitute reversible error because the DVDs are available for review.6 And the fact that the DVDs were stopped and interrupted by live questions and testimony, which were transcribed, does not alter our conclusion.7 For these same reasons, Brittain's separate enumeration that his trial

329 Ga.App. 693

counsel rendered ineffective assistance by failing to object to an incomplete transcription of trial is likewise without merit.8

2. Next, in a very cursory argument, Brittain contends that the trial court erred in permitting the State to present “multiple hearsay” regarding Jones's May 2007 abduction under the forfeiture-by-wrongdoing doctrine when there was no proof that the doctrine should apply.

Although Brittain makes vague reference to alleged hearsay statements by various

766 S.E.2d 111

witnesses, he provides little detail or specific record citations to the statements he contends were admitted in error by the trial court. In this respect, we note that the record and transcripts in this appeal comprise ten volumes with a trial that lasted one week and involved testimony from more than 25 witnesses. Suffice it to say, this Court will not “cull the record in search of error on behalf of a party,”9 and if we have missed something in the record or misconstrued an argument, “the responsibility rests with counsel.”10

Additionally, Brittain appears to conflate arguments...

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