Clark v. State

• Decision Date: 12 April 1999
• Docket Number: No. S99A0533., No. S99A0532
• Citation: 271 Ga. 6,515 S.E.2d 155
• Parties: CLARK v. The STATE. Storey v. The State.
• Court: Georgia Supreme Court

515 S.E.2d 155

271 Ga. 6

CLARK v. The STATE.

Storey v. The State.

Nos. S99A0532, S99A0533.

Supreme Court of Georgia.

April 12, 1999.

William Ralph Carlisle, Lawrenceville, Rex Barron Abernathy, Cook & Connelly, Summerville, Frank David Perry, Newnan, for Darrell Lee Clark.

Larry J. Barkley, Rome, for Cain J. Storey.

Tambra Pannell Colston, Dist. Atty., Charles Stephen Cox, Asst. Dist. Atty., Rome, Thurbert E. Baker, Atty. Gen., Jeanne Kay Strickland, Asst. Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State. BENHAM, Chief Justice.

Appellants were tried together and convicted of malice murder in connection with the death of 15-year-old Brian Bowling.¹

The State presented evidence that Brian suffered a fatal gunshot wound to his right temple while in his bedroom in his parents' home in rural Floyd County. A .38 caliber handgun was found between Brian's feet. A neurosurgeon who treated Brian testified that his report of his examination of Brian did not mention finding a powder burn, often left by a gun fired in close proximity to skin, a fact he would have included had he found such a burn. The neurosurgeon also testified that the 45 percent angle of the bullet's entrance into the victim's head was "unusual" for a self-inflicted wound, as was the lack of powder burns.

It was undisputed that appellant Cain Joshua Storey, Brian's best friend, had entered Brian's room several minutes before the shot was fired, and those members of Brian's family who had seen Storey before he entered Brian's room described him as acting strangely and appearing nervous. After the shooting, Storey initially told Brian's family members that he "didn't mean to kill him," and that he "didn't mean for him to die." He then said that Brian had shot himself with a gun that Storey had brought to Brian's room, making Storey feel responsible for Brian's death. A hearing-and-speech-impaired man visiting the Bowling home the night of the shooting testified that he saw a man he later identified as appellant Darrell Lee Clark running away from the home immediately after the shot was fired. Family members who entered Brian's room after the shot was fired noticed that a plywood board normally positioned in front of Brian's broken window was out of place, and testified that Brian and his friends used the window as a means of ingress into and egress from Brian's room.

Through the testimony of a woman who hosted a party attended by both appellants three and one-half months after Brian's death, the State presented evidence that Storey had told the witness, in Clark's presence, that they were members of a gang called "Free Birds" and that they had shot Brian because he knew too much about their burglary of a safe. The party hostess also testified that she had learned in her Storey-Clark conversation that Brian had wanted to leave the gang and its activities. The witness stated that Clark told her he was present when Brian was shot, but that he had not pulled the trigger. The witness further testified that appellants told her the gang had rules promising death as punishment for a member who talked to police. Through the testimony of Bowling family members and police investigators, the jury was informed that, a week before he died, Brian had talked with police, in Storey's presence, about the theft of a safe and its contents from Storey's father. At the time of Brian's conversation with the police, appellants Storey and Clark had been arrested for the theft of the safe, and the investigating officer described Brian's statement as useful to the investigation since it corroborated Storey's statement which had implicated Clark as a participant in the theft of the safe.

1. The evidence summarized above was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that appellants were guilty of murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant Storey contends on appeal that the trial court erred in denying his motion in limine which sought to preclude the State from mentioning in its opening statement appellant Storey's admission to police that he had accidentally shot Brian.

"[T]he opening statement is of no small significance in that it outlines for the jury what a party intends to show at trial." Sims v. State, 251 Ga. 877(3), 311 S.E.2d 161 (1984). The prosecutor is permitted to use the opening statement to set out what the evidence is expected to show (Massey v. State, 263 Ga. 379(2), 434 S.E.2d 467 (1993)), and the remarks should be confined to a summary of what admissible evidence is expected to show. Cargill v. State, 255 Ga. 616(21), 340 S.E.2d 891 (1986). It is improper for a prosecutor to refer in the opening statement to a defendant's incriminating statement prior to a Jackson-Denno hearing on the admissibility of the defendant's statement. Brown v. State, 250 Ga. 862(2), 302 S.E.2d 347 (1983). In the case at bar, the trial court held a Jackson-Denno hearing in response to the motion in limine and ruled, prior to the prosecutor's opening statement, that Storey's incriminating statement was admissible. The fact that the trial court sua sponte revisited the issue several days after Storey's audiotaped confession was played for the jury and ruled the confession inadmissible as the product of a hope of benefit offered by the interviewing investigator, does not affect the fact that, at the time the opening statement was made, Storey's incriminating statement was admissible evidence expected to be presented to the jury. Compare Alexander v. State, 270 Ga. 346(2), 509 S.E.2d 56 (1998) (where prejudicial portions of the prosecutor's opening statement were never backed up by evidence). The trial court did not err when it denied Storey's motion in limine.

3. A deputy county coroner who saw the victim's wound at the hospital and again at a funeral home testified at trial. After he admitted that he had never been allowed to give an expert opinion in court regarding the existence of gunpowder on a body, and that his experience and training did not enable him to look at an object and give a scientific opinion whether gunpowder residue was present because examination by microscope was necessary, the trial court declined to certify the coroner as an expert witness. Instead, the deputy coroner was permitted to give his lay opinion, based on his familiarity with the appearance of powder burns on human flesh and his examination of the victim, to testify that he saw no visible powder marks on the victim which meant that the fatal shot had been fired from a distance of at least 12-18" from the victim's head.

Even if error, the admission of the deputy coroner's testimony was not reversible error as it is cumulative of the neurosurgeon's testimony that he found no powder burns on the victim, and of the testimony of the Crime Lab's firearms expert that gunpowder residue is not found on a target when the shot is fired from a minimum distance of three feet. See Williams v. State, 256 Ga. 655(2), 352 S.E.2d 756 (1987).

4. Storey takes issue with the trial court's admission of evidence concerning the existence of a gang and the punishment for one who told police about the criminal activities of members. The State's theory in this case was that the victim and appellants were members of a gang and that the victim had been killed for talking to police about a crime members of the gang had committed. The State is authorized to present evidence of a defendant's motive for allegedly committing a criminal act. Johnson v. State, 260 Ga. 457(2), 396 S.E.2d 888 (1990). When that motive directly involves appellants' membership in an unsavory group, the relevant and material evidence does not become inadmissible because it may incidentally put appellants' character or reputation into evidence. Mize v. State, 269 Ga. 646(3), 501 S.E.2d 219 (1998) (evidence of Ku Klux Klan and National Vastilian Aryan Party membership admissible to establish motive); Earnest v. State, 262 Ga. 494(1), 422 S.E.2d 188 (1992) (evidence of satanic cult membership admissible to establish motive).

5. Appellant Clark sees reversible error in the trial court's admission, under the necessity exception to the statute prohibiting the admission of hearsay evidence (OCGA § 24-3-1), of testimony concerning a statement made by the victim two months before his death. At trial, the victim's brother-in-law testified that Brian had told him that Brian and appellants were "in a gang called `Free Birds'...."

It is undisputed that the witness's testimony as to what Brian purportedly had said was hearsay, the admission of which is limited to specified cases of necessity. OCGA § 24-3-1(b); McKissick v. State, 263 Ga. 188(3), 429 S.E.2d 655 (1993). The two prerequisites for the admission of hearsay because of necessity are: a finding that the hearsay is necessary, and a finding that the declarant's hearsay statement is surrounded by particularized guarantees of trustworthiness. Mallory v. State, 261 Ga. 625(2), 409 S.E.2d 839 (1991). We recently held in Chapel v. State, 270 Ga. 151(4), 510 S.E.2d 802 (1998), that the hearsay declarant's death or unavailability, in and of itself, does not satisfy the "necessary" component, implicitly overruling those cases which held otherwise. See, e.g., Holland v. State, 267 Ga. 833(3), 483 S.E.2d 584 (1997); Carr v. State, 267 Ga. 701(3), 482 S.E.2d 314 (1997); Jordan v. State, 266 Ga. 499(3), 467 S.E.2d 568 (1996); Luallen v. State, 266 Ga. 174(5), 465 S.E.2d 672 (1996); Drane v. State, 265 Ga. 663(1), 461 S.E.2d 224 (1995); Hayes v. State, 265 Ga. 1(3), 453 S.E.2d 11 (1995); Hawkins v. State, 264 Ga. 484(2), 448 S.E.2d 214 (1994); Roper v. State, 263 Ga. 201, 429 S.E.2d 668 (1993); McKissick v. State, 263 Ga. 188(3), 429 S.E.2d 655 (1993); Nelson v. State, 262 Ga. 763(3), 426 S.E.2d 357 (1993); White v. White, 262 Ga. 168, 415 S.E.2d...