Culler v. State

• Decision Date: 29 March 2004
• Docket Number: No. S04A0150, No. S04A0149, No. S04A0309.
• Citation: Culler v. State, 277 Ga. 717, 594 S.E.2d 631 (Ga. 2004)
• Parties: CULLER v. The STATE. Hill v. The State. White v. The State.
• Court: Georgia Supreme Court

594 S.E.2d 631

277 Ga. 717

CULLER v. The STATE.

Hill v. The State.

White v. The State.

Nos. S04A0149, S04A0150, S04A0309.

Supreme Court of Georgia.

March 29, 2004.

Bernadette C. Crucilla, R. Lars Anderson, Roy Miller, Macon, for Appellant.

Howard Z. Simms, Dist. Atty., Nancy S. Moskaly, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Jason C. Fisher, Asst. Atty. Gen., for Appellee. SEARS, Presiding Justice.

Appellants Orlando Lee Culler, David Hill and Trayeon White appeal their convictions for felony murder and aggravated assault, resulting in life sentences,¹ claiming numerous instances of trial court error. Having reviewed the record, we conclude that appellants' claims are without merit, and we affirm.

The evidence of record was sufficient for rational triers of fact to conclude that the three appellants were gathered at a Bibb County home when they decided to go a nearby house, located on Amos Street, and retaliate for the death of appellant Culler's brother, who had been killed the previous day. Along with several others, appellants traveled to Amos Street in two cars. All three appellants were armed with handguns. Appellants attempted to kick in the front door of the Amos Street house, and when that failed, they began firing random shots into the house. Of the three people inside the house, one, Waller, was shot in the head and killed. The intended target, Mills, was shot in the shoulder and injured. Hunter, who was asleep in a back bedroom when the shooting occurred, was left unharmed once the gunfire ended. An eyewitness testified that he watched the shooting and heard shots being fired from three distinct guns. Appellant Culler later told a friend that he had fired shots into the home, and thought he had killed Waller. Ballistics reports identified shell casings recovered from the scene as having been fired from at least two different guns, possibly more. DNA testing identified a red baseball cap recovered from the front yard of the Amos Street house as having been worn by appellant Hill.

1. Pointing to evidence they urge indicates that only two shooters fired into the house, appellants argue the jury's verdicts were contrary to the weight of the evidence. However, this Court neither reweighs evidence on appeal nor attempts to resolve conflicts in testimony.² The evidence of record, construed most favorably to the verdicts, was sufficient to enable rational finders of fact to conclude that appellants are guilty of having committed felony murder and aggravated assault.³

2. The trial court did not err in admitting certain photographic evidence. During its investigation, the State took photos of the front yard of the Amos Street house. After the negatives were developed, prints were delivered to the District Attorney and made available to appellants during discovery. None of the photographs showed a red baseball cap in the front yard. However, in a conference held on the first day of jury selection, the State informed the court and defense counsel that it believed the photo shop had used a "cropping procedure" that inadvertently cropped the hat out of a print developed from one of the negatives. The State informed the court it had only discovered the difference between the print and its negative on the previous day. The State announced it was having the negative redeveloped and planned to have the print in hand before jury selection was completed. During jury selection, the State informed appellants that the red cap appeared to be visible in the newly-developed photo and appellants were allowed to examine the photo. Over appellants' objections, the trial court admitted the uncropped photo into evidence.

Appellants Culler and Hill argue that because the State failed to produce the undeveloped negative during discovery, the trial court should have barred the photo's admission, or, alternatively, have offered appellants a continuance. If the State fails to comply with statutory discovery requirements,⁴ the court may, in its discretion, order the prosecution to permit inspection, grant a continuance, or—upon a showing of bad faith and prejudice—prohibit the State from introducing the evidence.⁵ There is no indication of bad faith on the part of the State, as the first print's failure to show everything included in the negative appears to have been due entirely to the developer's cropping procedure, over which the State had limited, if any, control. Like appellants, the State did not know what the newly-developed photo would show until it was actually processed from the negative. Additionally, as found by the trial court at the new trial hearing, the State alerted both appellants and the court as soon as it became aware of the problem. Accordingly, the trial court did not err by allowing introduction of the photograph.

As for the other two remedies available to appellants, the record reveals not only that no motion for a continuance was made before the trial court, but also that no objection was raised to the trial court's failure to order a continuance. Consequently, that particular claim is procedurally barred on appeal.⁶ The record also shows that appellants were permitted to examine the redeveloped photograph at the earliest possible opportunity, after it was obtained by the State.

Finally, we note that appellants concede they examined the hat itself during discovery and knew beforehand that the State would claim at trial that the hat was recovered from the crime scene. At trial, the hat was admitted without objection and two investigating officers testified that it was discovered during their investigation of the crime scene. Accordingly, it appears the redeveloped photograph was cumulative of other evidence introduced at trial, and that appellants suffered no significant prejudice due to its admission. It follows that the trial court did not err by allowing the newly-developed photograph into evidence.

3. The trial court did not abuse its discretion by denying appellants Culler's and Hill's motions for mistrial when a State's witness testified he had visited the jail where appellants were being held in order to obtain blood samples from them. Appellants urge that when this statement was made, they had not placed their character in evidence.

The decision whether to grant a mistrial is within the trial court's discretion and will not be disturbed so long as proper remedial measures are taken to ensure the right to a fair trial.⁷ In this case, the trial court determined the detective's improper statement was inadvertent and gave a curative instruction to the jurors, directing them to disregard the statement in its entirety and not to consider it in connection with appellants' trials. We find this remedial measure to have been satisfactory. Hence, the mistrial motions were properly denied.

4. The trial court did not err in denying appellants Culler's and Hill's motions for a directed verdict as to one of the aggravated assault charges. The indictment charged appellants with aggravated assault against one of the victims, Hunter, by shooting at him with a handgun, a deadly weapon. Appellants argue the State failed to establish the elements of this crime because neither of them knew that Hunter was in the house at the time of the shooting; Hunter himself slept through the entire shooting; and none of the bullets fired into the house reached the bedroom where Hunter was asleep.

A person commits aggravated assault when, among other actions, he assaults another with a deadly weapon which, when used offensively, is likely to result in serious bodily injury.⁸ In this case, appellants did not act with criminal negligence.⁹ To the contrary, the evidence clearly showed that appellants intentionally fired bullets into a house occupied by three people. Appellants' primary objective was to kill Mills, whom they blamed for the death of Culler's brother, but it was likely that violent harm would also be inflicted against all persons inside the home. When an unintended victim (such as Hunter) is subjected to harm due to an unlawful act intentionally aimed at someone else (such as Mills), the law prevents the actor from taking advantage of his own misdirected wrongful conduct and transfers the original intent from the one against whom it was intended to the one who suffered harm.¹⁰ Accordingly, it is of no import that appellants were unaware that Hunter was in the home. It is obvious that by intentionally firing into the home, appellants were likely to seriously injure all the occupants, not just their primary target, Mills. Such harm was likely regardless of whether a particular occupant (such as Hunter), was aware of the shooting as it occurred. It follows that the trial court properly denied the motion for directed verdict on the charges of aggravated assault against Hunter. 5. Appellants Hill and White urge that the trial court abused its discretion by permitting the State to treat its witness Bradberry as hostile by asking leading questions. During the investigation, Bradberry provided a statement to police claiming he was among those who went to the Amos Street house with appellants on the night of the shooting and that he watched the shooting occur. Once on the stand, however, Bradberry said he feared for his safety and was very nervous about testifying. Bradberry attempted to evade the State's questions about matters such as whether the signature on his statement actually was his, and was extremely reticent about answering a number...