Dawson v. State

• Decision Date: 17 March 2008
• Docket Number: No. S07A1253.,S07A1253.
• Citation: Dawson v. State, 658 S.E.2d 755, 283 Ga. 315 (Ga. 2008)
• Parties: DAWSON v. The STATE.
• Court: Georgia Supreme Court

658 S.E.2d 755

283 Ga. 315

DAWSON v.The STATE.

No. S07A1253.

Supreme Court of Georgia.

March 17, 2008.

Thomas McKee West, Robert H. Citronberg, Atlanta, for Appellant.

Paul L. Howard, Jr., Dist. Atty., Peggy Ann Katz, Asst. Dist. Atty., Bettieanne C. Hart, Deputy Dist. Atty., Thurbert E. Baker, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Benjamin Henry Pierman, Asst. Atty. Gen., for Appellee.

BENHAM, Justice.

Ladaris Hawkins was found dead in a College Park hotel room on October 15, 1998, having suffered fatal gunshot wounds to the back of his head.Three days later, Phillip Dover, Ronald Gutkowski, and Gerrold Shropshire were found dead in an Atlanta hotel room, each having suffered a fatal gunshot wound to the back of his head.About two weeks after the trio was killed, appellantTimothy Dawson was stopped for a traffic violation near Memphis, Tennessee.When appellant told the officer he had a loaded gun in the glove compartment, a weapons violation in Tennessee, the officer obtained appellant's consent to search the vehicle and retrieved the gun.Appellant was arrested for the weapons violation and, during a search of the vehicle following appellant's arrest, officers recovered identification documents belonging to the four men murdered in Fulton County.Appellant was tried and convicted for the murders in Fulton County. ¹

1.The State presented expert evidence that the gun found in appellant's car was the weapon which had fired the shots that killed the four men, and the baseball cap appellant was wearing at the time of his arrest contained the DNA of one of the victims.The State also presented evidence that appellant and two friends used the Atlanta hotel victims' tickets, at appellant's invitation, to attend a professional football game the day after the three victims were killed; appellant was identified as the person seen in a hotel surveillance tape in the hotel elevator with one of the victims shortly before the trio of victims was shot, and as the person leaving the hotel with a cooler belonging to one of the victims; and a duffle bag belonging to one of the victims was on the seat of the car appellant was driving at the time of his arrest.The evidence was sufficient to authorize the jury to find appellant guilty beyond a reasonable doubt of all the charges.Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

2.Appellant contends the trial court erroneously prohibited him from presenting evidence that the murders were actually committed by a drug-dealing gang who planted evidence incriminating appellant in retaliation for appellant having purportedly "snitched" on one of the gang members who was allegedly dealing drugs in a local jail with the complicity of deputy sheriffs.

A defendant is entitled to introduce relevant and admissible evidence implicating another person in the commission of the crime or crimes for which the defendant is being tried.SeeHenderson v. State,255 Ga. 687(1), 341 S.E.2d 439(1986)."[T]he proffered evidence must raise a reasonable inference of the defendant's innocence and it 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."Oree v. State,280 Ga. 588(5), 630 S.E.2d 390(2006).The proffered evidence "cannot raise the mere speculation that some other person committed the crime"(Lance v. State,275 Ga. 11(13b), 560 S.E.2d 663(2002)), and it must do more than "raise a conjectural inference that another person committed the murder[s]."Azizi v. State,270 Ga. 709(6), 512 S.E.2d 622(1999).Inasmuch as appellant's theory was speculative and conjectural, did not connect a specific person with the crimes, and did not raise a reasonable inference of appellant's innocence, the trial court did not err when it refused to allow appellant to present evidence in support of his speculations before the jury.

3.Contending that the State did not provide the statutory authentication necessary for the admission of a videotape and the images captured thereon, appellant next takes issue with the admission into evidence of videotaped images captured by surveillance cameras located in the Atlanta hotel where the last three victims were killed.

OCGA § 24-4-48 provides two methods by which photographs, motion pictures, videotapes, and audio recordings may be admitted; they are not the exclusive methods of introducing such media into evidence, "but shall be supplementary to any other statutes and lawful methods existing in this state."OCGA § 24-4-48(d).Subsection (b) states that the above-listed evidence, subject to any other valid objection, "shall be admissible in evidence when necessitated by the unavailability of a witness who can provide personal authentication and when the court determines, based on competent evidence presented to the court, that such items tend to show reliably the fact or facts for which the items are offered."Subsection (c) provides that, subject to any other valid objection, the above-listed items which

were produced at a time when the device producing the items was not being operated by an individual person or was not under the personal control or in the presence of an individual operator shall be admissible in evidence when the court determines, based on competent evidence presented to the court, that such items tend to show reliably the fact or facts for which the items are offered, provided that prior to the admission of such evidence the date and time of such photograph, motion picture, or videotape recording shall be contained on such evidence and such date and time shall be shown to have been made contemporaneously with the events depicted in the photograph, videotape, or motion picture.

At the hearing on the motion in limine filed by appellant, the hotel's director of security described the hotel's 16-camera surveillance system as one where each camera fed images to a "multiplexer" which produced a single videotape containing all the images.The hotel's security dispatch room was equipped with two monitors displaying the images captured by the various cameras for intervals of 3-5 seconds, and was staffed by hotel security personnel 24 hours a day, every day of the week.No employee was responsible solely for watching the monitors, and the security personnel were trained to operate the equipment only to the extent of removing a completed tape from the machine and inserting a fresh tape.When viewed, the videotape at issue contained a date-time stamp which, according to the hotel security director, accurately reflected the passage of time and accurately reflected the date, but the time entry was "off" by one hour and 42 minutes.Relying on date-specific markings on the videotape, the hotel security director identified the videotape as the one which contained the images recorded on October 17, 1998, and which he had retrieved from the equipment in the security dispatch office at the request of investigating police officers on October 18, 1998.

The trial court found that personal authentication could have been provided by both the victim and appellant and that both were unavailable to provide the authentication.The trial court also found that security personnel in the dispatch office when the images were being captured did not qualify as authenticating witnesses, based on the testimony of the hotel security director that security personnel in the security dispatch office were not assigned to monitor the images captured by the cameras.The trial court relied on the security director's testimony that the cameras operated properly and continuously, were capable of reliably recording the scene, and did record the scene contemporaneously.Ultimately, the trial court ruled the videotape was admissible, with the discrepancy concerning the time stamp going to the weight to be given the videotape by the fact-finder and not its admissibility.

We agree with the trial court that the videotape was admissible under OCGA § 24-4-48(c).The testimony of the hotel security director that the security personnel in the dispatch office were not trained to operate machinery in the dispatch room and did nothing more than remove a spent videotape and replace it with a fresh tape established that the devices producing the images that were recorded on the videotape were not operated by a person or under the personal control or in the presence of an individual operator.Id.The videotape contained a date-time stamp, and it was established that the date and time stamp was made contemporaneously with the events depicted in the videotape.Although the date-time stamp was admittedly inaccurate, being 104 minutes "off,"we conclude that the statute's intent, insofar as admissibility is concerned, is that the proffered evidence show a contemporaneous recording of the passage of time.That the date-time stamp does not reflect the actual time when the images were captured goes to the weight to be given the evidence, not its admissibility.SeeHolloway v. State,287 Ga.App. 655(2), 653 S.E.2d 95(2007).See alsoState v. Ayscue,169 N.C.App. 548, 551-552, 610 S.E.2d 389(2005)(time and date discrepancy did not render it inadmissible).

Appellant also asserts that the videotape was rendered inadmissible by its purported poor quality.However, the quality of the tape does not preclude its admission.SeeCromartie v. State,270 Ga. 780(1), 514 S.E.2d 205(1999)(noting the inclusion in the evidence against the defendant of a video "too indistinct to conclusively identify [the defendant]");Thompson v. State,462 So.2d 777, 779-780(Ala.Cr.App.1984);State v. Benson,2002 WL 31813024(Ohio App.2002)(unreported decision).

4.Appellant next complains it was a violation of OCGA § 24-9-65² to permit a non-expert witness to give an opinion regarding the identity of a person shown on the videotape and on still photos derived from the...