De La Cruz v. State

• Decision Date: 05 February 2018
• Docket Number: S17A1887
• Parties: DE LA CRUZ v. The STATE.
• Court: Georgia Supreme Court

303 Ga. 24

810 S.E.2d 84

DE LA CRUZ

v.The STATE.

S17A1887

Supreme Court of Georgia.

Decided: February 5, 2018

Alston & Bird, Mary T. Benton, Derin B. Dickerson, Tejas S. Patel, Kacy Brake, Emily C. Hootkins, Andrew J. Liebler, Andrew M. Brown; Francisco Gonzalez-Burgos, for appellant.

Richard L. Perryman III, District Attorney, J. Allen Lawson, Bianca P. Goodman, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Mary C. Greaber, Elizabeth H. Brock, Assistant Attorneys General, for appellee.

HUNSTEIN, Justice.

Appellant Eduardo De La Cruz was tried and convicted of the murder of Brenda Gibbs.¹ On appeal, Appellant claims four instances of trial court error and two claims of error by the motion for new trial court. We affirm.

Viewed in a light most favorable to the jury’s verdict, the evidence adduced at trial established that, at all relevant times, Appellant and the victim, Brenda Gibbs, worked opposite shifts at the Production Anodizing plant in Adel, Georgia. Though the two had a child together, their romantic relationship was marred with a history of verbal, physical, and sexual assault. The State adduced testimony that Gibbs was afraid of Appellant and that, prior to her murder, Appellant told Gibbs he should kill her, get the money from her life insurance policy (of which he was the beneficiary), and take their child to Mexico. Appellant repeated similar threats in the presence of co-workers.

At 9:00 p.m. on August 19, 1995, Appellant dropped Gibbs off at work with a promise to pick her up after her shift ended at 5:00 the next morning. Gibbs, her co-worker, Rodney Tippins, and a security guard were the only people working at the plant that evening. A couple hours into their shift, Tippins ran into Gibbs; she appeared as if she had just been crying, though she would not tell Tippins what was wrong. Around 4:00 a.m. on August 20, the security guard saw Gibbs and Appellant together in the laboratory where Gibbs was working. Gibbs’ back was to Appellant and they were not talking.

A little after 5:00 a.m., Tippins and the security guard walked over to the lab where they found Gibbs on the floor bloodied and unresponsive. She was lying over a partially broken bar stool covered in blood, and a "t-shape" piece of wood with nails was lodged in her head. Meanwhile, Appellant had failed to return to the plant to pick up Gibbs as previously promised.

While processing the scene, law enforcement found a broken two-by-four and a metal conduit pipe, both of which were covered in blood. Phosphoric acid had also dripped onto the floor from a broken glass container. Officers collected samples from the blood spatter on the cabinets and walls, as well as a black hair from Gibbs’ shirt and a fingerprint from the pipe. During the autopsy, the medical examiner found defensive wounds

on Gibbs’ hands and arms and opined that Gibbs died from blunt force trauma to the head, likely caused by being hit with either the two-by-four or conduit pipe. The medical examiner also clipped the victim’s fingernails and preserved them for potential testing.

Appellant spoke with law enforcement and denied having any involvement in Gibbs’ murder. Officers later searched Appellant’s home and car, during which they collected a pair of Appellant’s tennis shoes; the soles of the shoes fluoresced under a black light. The lead detective, who had been present at the crime scene and walked through the phosphoric acid on the floor, ran his shoes under the same black light and they also fluoresced. The detective checked his shoes against the shoes of other individuals who did not walk the crime scene; the soles of their shoes did not have the same reaction. The State also adduced evidence that plant employees were required to wear steel toed shoes and a cover suit to protect their clothes while in the lab.

Appellant called three witnesses in his defense, including an alibi witness.

1. Though not enumerated by Appellant, we find that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Appellant was guilty of the crime for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Trial Court Claims

2. At Appellant’s pre-trial probable cause hearing, Appellant called Jose Andres to testify for the defense as an alibi witness. Andres testified, inter alia, that, on the night before the murder, he saw Appellant and the victim together laughing, talking, and kissing. Andres testified that he remained with Appellant until midnight that evening. Andres was then subjected to a thorough and sifting cross-examination by the State. When Andres was unavailable to be called as a witness at trial, the defense sought to read the witness’ prior sworn testimony to the jury. The trial court denied this request. Appellant alleges this was an abuse of discretion. We disagree.

Under our old Evidence Code,

[t]estimony given by an "inaccessible" witness under oath in a former proceeding on substantially the same issue and between the same parties [was] admissible under [former] OCGA § 24-3-10. [Cit.] "The inaccessibility of a witness under [former] OCGA § 24-3-10 depend[ed] upon a showing by the party seeking to use the witness’ former testimony that he ha[d] used due diligence in trying to locate and bring to court the absent witness." [Cit.]

(Punctuation omitted.) Thomas v. State, 290 Ga. 653, 657, 723 S.E.2d 885 (2012). Georgia courts have been "fairly strict in requiring proof of sustained efforts by parties to locate the witness in question before allowing the admission of such testimony." (Citation and punctuation omitted.) Hill v. State, 291 Ga. 160, 163, 728 S.E.2d 225 (2012). Indeed, "due diligence requires more than a few phone calls," and a "party must make a serious, competent effort to find and bring the witness to court." (Citation and punctuation omitted.) Id."Whether a witness is inaccessible within the meaning of [former] § 24-3-10 is a decision left to the discretion of the trial court, which will not be reversed absent manifest abuse."

(Citation and punctuation omitted.) Thomas, 290 Ga. at 657, 723 S.E.2d 885.

Here, the morning of trial, defense counsel informed the trial court that Andres was "out of [the] country" and, therefore, not subject to the trial court’s subpoena power. Counsel continued,

We don’t even know where he is. He is somewhere around Acapulco, Mexico; western Mexico. We have made every diligent effort that we could make to try to get his whereabouts. I’ve had members of [Appellant’s] family trying to find him, making inquiries, trying to locate him. We cannot get him. We cannot find him.

A witness who has permanently moved to a foreign country is unavailable within the meaning of former OCGA § 24-3-10. See also Mancusi v. Stubbs, 408 U.S. 204, 212-213, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972). Here, however, Appellant did not provide the trial court with evidence that Andres had moved to Mexico; nor did he say when efforts to locate Andres had begun or what efforts had been made to subpoena Andres at his last known residence in Georgia as provided for in former OCGA § 24-10-23. Instead, he merely stated that Andres was "out of [the] country." Without evidence that Andres had moved to another country, thereby permanently placing himself beyond the subpoena power of the trial court, Appellant did not establish the required showing of due diligence to support a finding of unavailability. Mancusi, 408 U.S. at 212-213, 92 S.Ct. 2308. See also Jones v. State, 250 Ga. 166 (2), 296 S.E.2d 598 (1982).

However, even assuming Appellant had sufficiently shown Andres’ unavailability, the trial court’s exclusion of the prior testimony was harmless. Because Andres was only with Appellant until midnight the night of Gibbs’ death, he could not have provided Appellant with an alibi for the time of Gibbs’ murder which, based upon the evidence, occurred sometime between 4:00 and 5:00 a.m. on August 20. Moreover, Andres’ prior sworn testimony would have been cumulative of Appellant’s other alibi witness who testified at trial that he was with Appellant from 9:15 p.m. to 11:30 p.m. on August 19, and then from 1:30 a.m. until approximately 4:30 a.m. on August 20. Finally, though Andres could have testified that Appellant and the victim were "laughing and kissing" before Appellant dropped her off at work, the evidence of Appellant’s prior abuse toward the victim, as well as his numerous statements that he wished her dead, were overwhelming. Therefore, the trial court did not commit reversible error in denying Appellant’s request to read Andres’ prior sworn testimony to the jury.

3. The morning of trial, the State moved the trial court to prohibit Appellant from presenting evidence that another individual, Otis Sanders, had actually committed the murder. Specifically, the State asked the trial court to prevent defense counsel from calling Linda Leriche who, ostensibly, would have testified that Sanders provided a false alibi to law enforcement for the time of the murder, that he physically abused Leriche, and that Sanders drove Leriche to the plant on some unknown date before Gibbs’ death and threatened to kill Leriche. The trial court granted the State’s motion in limine, which Appellant contends was error. We disagree.

It is well established that

a defendant is entitled to introduce relevant and admissible testimony tending to show that another person committed the crime for which the defendant is tried. However, the proffered evidence must raise a reasonable inference of the defendant’s innocence, and must directly connect the other person with the corpus delicti, or show that the other person has recently committed a crime of the same or similar nature.

(Citations omitted.) Gilreath v. State, 298 Ga. 670, 673, 784 S.E.2d 388 (2016). "[A] reasonable...