Burton v. State

• Decision Date: 10 January 1994
• Docket Number: No. S93A1935,S93A1935
• Parties: BURTON v. The STATE.
• Court: Georgia Supreme Court

Page 83

438 S.E.2d 83

263 Ga. 725

BURTON v. The STATE.

No. S93A1935.

Supreme Court of Georgia.

Jan. 10, 1994.

Brett Warren Ladd, Marietta, for Burton.

Charles Norman, Asst. Dist. Atty., Thomas J. Charron, Dist. Atty., Marietta, Michael J. Bowers, Atty. Gen., Atlanta, Debra Halpern Bernes, Asst. Dist. Atty., Nancy I. Jordan, Asst. Dist. Atty., Marietta, Susan V. Boleyn, Sr. Asst. Atty. Gen., Matthew P. Stone, Staff Atty., Dept. of Law, Atlanta, for the State.

CARLEY, Justice.

Appellant was tried before a jury and found guilty of malice murder. He appeals from the judgment of conviction and life sentence entered by the trial court on the jury's guilty verdict. ¹

1. Appellant enumerates the general grounds.

The victim was Mrs. Flossie Mae McCounley, who was the grandmother of appellant's girlfriend. Mrs. McCounley had raised her granddaughter from infancy and she was still living with Mrs. McCounley at the time of the murder. Mrs. McCounley did not approve of her granddaughter's relationship with appellant. Several days before the murder, appellant had broken into a home where his girlfriend was babysitting and he had then beaten her and threatened to "get" her and her "mother." Since Mrs. McCounley had raised her granddaughter, this could readily be construed as a threat by appellant to "get" both his girlfriend and Mrs. McCounley. On the night of the murder several days later, appellant's girlfriend refused to accept a phone call from appellant. She then went to spend the night with a friend and left Mrs. McCounley home alone. Sometime thereafter, a neighbor heard sounds of a struggle coming from Mrs. McCounley's bedroom, but she did not investigate. The next morning, Mrs. McCounley's co-workers discovered that the door to her house had been broken in and, upon entering, they found Mrs. McCounley's body. She had been stabbed to death. Hair samples which matched appellant's were found in Mrs. McCounley's house. A bloody pair of rubber gloves was found behind Mrs. McCounley's house. Blood on the outside of the gloves matched Mrs. McCounley's. Blood on the inside of the gloves matched appellant's. A small piece of skin found in Mrs. McCounley's bedroom matched that of appellant, who had cuts on his hand. The bloody rubber gloves contained cuts, the location of which matched the cuts on appellant's hand. Articles of appellant's clothing seized from his home evidenced blood which matched his and Mrs. McCounley's.

This evidence was sufficient to authorize a rational trier of fact to find proof of appellant's guilt of the murder of Mrs. McCounley beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. On redirect examination by the State, a civilian employee of the police department was asked to review several evidence control sheets and then to "[t]ell the jury what [he] took to the crime lab on [a certain date]." In response to this inquiry, the witness enumerated several items, among which was "one paper with information on probation from DeKalb County." Despite the lack of any specific reference to indicate that the paper contained information regarding appellant's status as a probationer, appellant moved for a mistrial on the ground that his character had been impermissibly placed into evidence. The denial of this motion for a mistrial is enumerated as error.

In Ogles v. State, 238 Ga. 716, 235 S.E.2d 384 (1977), the State asked a police officer "when he discovered the true name of the defendant. His response was: 'After I checked his record.' " On appeal, we found no error in the denial of the defendant's motion for a mistrial, holding that this testimony fell "just short of putting the defendant's character in issue." Ogles v. State, supra at 717, 235 S.E.2d 384.

"The statement by [the civilian police employee] in this case is much less prejudicial than the statement upheld by this court in Ogles. Unlike the police officer's statement in Ogles, [the civilian police employee's] statement that he [took, among numerous other items, a paper containing information on probation to the crime lab] does not directly imply that the [paper contained any information on appellant's probation and that it was appellant who] had a criminal record. 'Here, the statement was made but once and the [civilian police employee] ... was merely responding in narrative form to questions asking him to explain what he [had taken to the crime lab on a specific date].' [Cits.]"

Jones v. State, 250 Ga. 166, 169(3), 296 S.E.2d 598 (1982).

[T]he witness here said nothing further about the contents of the [paper] or any previous convictions or arrests. In Johnson v. State, 256 Ga. 604(2) (351 SE2d 623) (1987), this court noted: This court has previously held that a passing reference to a defendant's record does not place his character in evidence. [Cits.]

Zellner v. State, 260 Ga. 749, 751(3)(b), 399 S.E.2d 206 (1991). Here, there was not even a passing reference to appellant's record. The passing reference was merely to an otherwise unidentified "paper with information on probation from DeKalb County." "There was no reversible error." Zellner v. State, supra at 751(3)(b), 399 S.E.2d 206.

3. Prior to trial, the State had given notice of its intent to introduce evidence of appellant's previous attack upon his girlfriend, including evidence of appellant's threat to "get" both his girlfriend and her "grandmother." At trial, however, the testimony was that appellant had threatened to "get" his girlfriend and her "mother." Urging a discrepancy between the pre-trial notice of a threat against his girlfriend's "grandmother" and the trial testimony of a threat against his girlfriend's "mother," appellant moved for a mistrial. The denial of this motion is enumerated as error.

There was no error in the denial of appellant's motion for a mistrial. As previously noted, Mrs. McCounley was, in effect, the mother of appellant's girlfriend.

"Any eventual disparity between the stated expected evidence and the actual testimony has not been shown to have been known or anticipated by the State at the time of the hearing in the matter. In any event, we do not find such dramatic disparity as claimed by appellant so as to render the acts inadmissible for the stated purposes." [Cit.]

McGowan v. State, 198 Ga.App. 575, 576(1), 402 S.E.2d 328 (1991).

4. As against the objections which were raised at trial, there was no error in admitting evidence of appellant's previous break-in and attack upon his girlfriend. Evidence that, only days before the murder, appellant had broken into a house, beaten his girlfriend and threatened her and her "mother" was admissible and probative...