Carr v. State
| Decision Date | 03 February 1997 |
| Docket Number | No. S96P1750,S96P1750 |
| Parties | , 97 FCDR 364 CARR v. The STATE. |
| Court | Georgia Supreme Court |
Tommy K. Floyd, Dist. Atty., McDonough, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Paige Reese
Whitaker, Asst. Atty. Gen., Dept. of Law, Atlanta, Marie R. Banks, Asst. Dist. Atty., McDonough, for State.
Timothy Don Carr was convicted of the malice murder of Keith Patrick Young and the theft of his motor vehicle. The jury recommended the death penalty for the murder, finding the following aggravating circumstances: the murder was committed in the commission of an armed robbery and aggravated battery; the murder was committed for receiving things of monetary value; and the murder was outrageously and wantonly vile, horrible and inhuman in that it involved torture, depravity of mind and aggravated battery to the victim. OCGA § 17-10-30(b)(2), (4), (7). The trial court sentenced Carr to death and Carr appeals. 1 We affirm.
1. The jury was authorized to find that Carr, his girl friend Melissa Burgeson, and the 17-year-old victim attended a party on the evening of the crimes, where they all consumed alcohol and used drugs. Carr and Burgeson discussed robbing the victim at the party. In the early hours of the following day, Burgeson took the victim's car keys and talked him into letting her drive him home. Burgeson drove the victim, Carr, and two juveniles to a remote area of south Monroe County in the victim's car. During the ride, Carr showed one of the juveniles a large knife and whispered that he intended to kill the victim. Burgeson stopped the car on a dirt road, and when the victim opened the trunk to look for more drugs, Burgeson motioned to Carr to kill him. Carr grabbed the victim's hair, pulled his head back and slashed his throat. At Burgeson's urging, Carr stabbed the victim repeatedly and then beat him in the head with a baseball bat. After Burgeson took the victim's money, Carr and one of the juveniles dragged the victim's body to the roadside, leaving him to die from his injuries.
Carr and Burgeson fled to Tennessee in the victim's car and were arrested following a high speed chase. After receiving medical treatment at a local hospital, they were placed in the back of a police car in which police had activated a hidden tape recorder. Their recorded conversation, in which Carr admitted killing the victim, was introduced into evidence at Carr's trial. 2 The jury was also authorized to find from the evidence that the knife used to stab the victim was discovered in Burgeson's purse.
The evidence adduced was sufficient to enable a rational juror to find Carr guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Carr contends that the trial court failed to require a complete record of the trial proceedings and deprived Carr of an opportunity to reconstruct the unrecorded proceedings, thereby abridging his right to appeal. Prior to the hearing on his motion for new trial, Carr informed the court that there were material omissions in the trial transcript because certain in-chambers conferences and bench conferences had not been recorded and requested that the motion for new trial be held in abeyance pending completion of the record. The trial court noted that although the transcript had been available for more than a year, Carr had not earlier raised the issue of the omissions with the court. The court also noted that Carr was responsible for ensuring that the record accurately reflected events which occurred in chambers, since there was no reporter present. After hearing argument on this issue from both parties, the trial court refused to postpone the motion for new trial and denied Carr's request to supplement the record by written order without further elaboration.
After Carr's motion for new trial was denied and the case was docketed in this Court, Carr raised the issue of supplementation in his appellate brief. Upon motion of the Attorney General, we remanded Carr's case to the trial court until such time as the record was supplemented or the trial court entered an order stating it was complete. At the close of the remand hearing, the trial court stated that the parties could not agree on supplementation and issued a written order finding that there were no further proceedings to be transcribed and the transcript was complete. Carr seeks a second remand 3 from this Court, arguing that the trial court did not give him adequate notice of the remand hearing and that the procedures followed at the hearing failed to comply with the procedures set out in OCGA § 5-6-41(f) for reconstructing a transcript.
Carr's contention that he did not receive sufficient notice of the remand hearing is without merit. The transcript had been published for almost two years prior to the remand hearing. Carr was aware of any omissions in the transcript at least seven months prior to the hearing, when he first raised the issue of supplementation in the trial court, and he had two months between the issuance of the remand order in this Court and the hearing in the trial court in which to prepare a summary of the missing portions of the transcript.
At the remand hearing, Carr attempted to supplement the record with events which allegedly occurred during three in-chambers conferences. The first conference occurred on the day before trial when Carr suffered an allergic reaction in prison and was treated by a doctor at the court's request. The trial court read a summary of these events into the record prior to opening argument, which the parties agreed was accurate. Carr sought the trial court's permission to hold a second "evidentiary hearing" to bring in witnesses to supply additional details regarding this incident, as well as new evidence that Carr had been given other medications during trial. The purpose of this testimony was to support an argument that Carr was incompetent during trial, although no competency claim had been raised in the trial court.
OCGA § 5-6-41(f) establishes a procedure whereby a party who contends that the transcript or record does not truly or fully disclose what transpired at trial may have the record completed either by stipulation of the parties as to what occurred or the independent recollection of the trial judge. If anything material to either party is omitted from the record, the omission may be corrected and, if necessary, a supplemental record filed. Zachary v. State, 245 Ga. 2(2), 262 S.E.2d 779 (1980). Evidence never actually admitted at trial cannot properly become part of the record on appeal pursuant to OCGA § 5-6-41(f). Harp v. State, 204 Ga.App. 527-528(1), 420 S.E.2d 6 (1992). See also State v. Pike, 253 Ga. 304, 307, 320 S.E.2d 355 (1984). The trial court did not err in refusing to consider this evidence.
Carr contends that a second unrecorded conference would show that the trial court denied him a Jackson v. Denno 4 hearing on the voluntariness of his incriminating statements to Burgeson in the police car. (See Division 4, infra.) Since we find that Carr was afforded a full and fair hearing on his motion to suppress these statements, the failure to record this exchange is harmless. See Davis v. State, 242 Ga. 901(1), 252 S.E.2d 443 (1979).
During a third unrecorded conference, several prospective jurors were excused by the trial court. Carr did not object to their excusal at trial, in his brief on appeal, or at the remand hearing. Therefore, the failure to record this conference is harmless. See generally Whitt v. State, 215 Ga.App. 704, 710, 452 S.E.2d 125 (1994).
Carr contended at the remand hearing that he advised the court at several of the unrecorded bench conferences that he was in pain throughout the trial from the "shock belt" he was wearing for security purposes and that the jury's impression of his demeanor at trial may have been affected thereby. The prosecution disputed Carr's claim and the trial court, drawing on its own recollection, ruled that the court was not told Carr was suffering during the trial. Under OCGA § 5-6-41(g), where the parties cannot agree on what occurred during the unrecorded portions of the trial, the trial court's ruling on the accuracy of the transcript is final and is not subject to appellate review. Smith v. State, 260 Ga. 274(3) 276, 393 S.E.2d 229 (1990).
Carr also sought to present testimony from witnesses who were in the courtroom prior to the trial when the clerk of the court made certain comments in the presence of the jury and out of the hearing of the judge and the prosecutor. This evidence was not part of the trial proceeding and was not admissible under OCGA § 5-6-41(f). Harp, supra.
After reviewing the transcript of the remand hearing and the arguments raised in Carr's motions and brief regarding this issue, we find that the procedures followed by the trial court at the remand hearing complied with the provisions of OCGA § 5-6-41(f). We therefore hold that Carr is not entitled to a second hearing for this purpose. We further find that the trial court did not abuse its discretion in concluding that nothing material was omitted from the trial record. Our resolution of the issues raised in this appeal does not rely on any unrecorded proceedings, and the trial transcript is sufficiently complete to afford a full and fair review of Carr's arguments. Zachary, supra at 4, 262 S.E.2d 779. See also Dobbs v. Zant, 506 U.S. 357, 113 S.Ct. 835, 122 L.Ed.2d 103 (1993). Carr has not established that he was prevented from raising any viable issue on appeal as a result of the failure to...
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