Dickson v. State

• Court: Georgia Court of Appeals
• Writing for the Court: Adams
• Citation: Dickson v. State, 636 S.E.2d 721, 281 Ga.App. 539 (Ga. App. 2006)
• Decision Date: 13 September 2006
• Docket Number: No. A06A0931.
• Parties: DICKSON v. The STATE.

281 Ga. App. 539

636 S.E.2d 721

DICKSON v. The STATE.

No. A06A0931.

Court of Appeals of Georgia.

September 13, 2006.

Allen M. Trapp, Jr., Carrollton, for appellant.

Peter J. Skandalakis, District Attorney, Stephen M. Gray, Assistant District Attorney, for appellee.

ADAMS, Judge.

Richard Bernard Dickson was tried on one count of malice murder and one count of felony murder for the stabbing death of his brother Barry. He was found not guilty of malice murder but guilty of aggravated assault as a lesser included offense of felony murder. He was sentenced to ten years in prison. On appeal, he contends the trial court improperly allowed into evidence his father's pre-trial statement to an investigator and improperly prohibited him from introducing evidence suggesting that his brother had personal problems, possibly including the use of illegal drugs.

The evidence shows that on January 9, 2005, Dickson was involved in a physical altercation with his older brother, whom he admittedly stabbed. The fight began inside their parents' home, briefly stopped when the brothers were separated, and ended when Dickson got a knife from the kitchen and went outside on the deck and stabbed his brother. Grady Dickson, the father of both men, was present during the latter stages of the altercation. Barry died as a result of the stabbing.

1. On the day of the crime, investigator Harold Bramlett interviewed Grady at his home and recorded the interview on audiotape. Grady later testified at Dickson's bond hearing.¹ Sometime thereafter, but two months prior to Dickson's trial, Grady died. Prior to trial, Dickson moved in limine to prevent the State from playing the audio-tape of Investigator Bramlett's interview with Grady. The trial court denied the motion because, it reasoned, Dickson had a prior opportunity to cross-examine Grady at the bond hearing. Dickson contends the trial court erred.

The United States Supreme Court has held that "[w]here testimonial evidence is at issue ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36, 68 (V)(C), 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Grady's statement to the investigator is "testimonial" for the purposes of this rule. See Id. at 51-52, 124 S.Ct. 1354; Porter v. State, 278 Ga. 694, 696(3), 606 S.E.2d 240 (2004); Brawner v. State, 278 Ga. 316, 318(2), 602 S.E.2d 612 (2004). The next question is whether, at his own bond hearing, Dickson had a meaningful opportunity to cross-examine his father regarding his father's statement to the investigator.

In order "to insure that the party against whom the testimony is later offered had an adequate opportunity to cross-examine the witness at the previous proceeding," the prior hearing must have addressed "substantially the same issues" as those presented at trial. Craft v. State, 154 Ga.App. 682, 683(1), 269 S.E.2d 490 (1980). In Craft, this Court held that the trial court correctly refused to allow the defendant to introduce his sister's testimony from his own bond hearing because the State did not have an adequate opportunity to cross-examine her at that time regarding the merits of the allegations against the defendant. Id. The court held that while the State "had an opportunity ..., to cross-examine the witness . . . the opportunity was not adequate in view of the limited scope of inquiry pursued at the bond hearing." Id. at 683-684, 269 S.E.2d 490. This ruling was based on the premise that at a bond hearing "the court does not pass on the merits of the case ... [but rather], the question before the judge is whether the appearance of the accused for trial may be reasonably assured." Id. at 683, 269 S.E.2d 490. The rule in Craft dictates the conclusion in this case: that Dickson did not have an adequate opportunity to cross-examine his father at the bond hearing regarding his father's statement to the investigator because the focus of the bond hearing was whether to allow the defendant to be released on bond, not whether the criminal allegations were supported.

The State contends that changes subsequent to Craft to the standard for determining whether to grant bond have affected the decision in Craft. Whereas the standard at the time of Craft was primarily based on the trial court's discretion, relevant to this case it is now based on the four-part "significant risk" test found in OCGA § 17-6-1(e).² See also Lane v. State, 247 Ga. 387, 276 S.E.2d 644 (1981); Ga. L. 1982, p. 910, § 1. The State argues that the significant risk test is so akin to the issues presented at the defendant's trial that parties involved in the bond hearing can be seen as having had a meaningful opportunity to cross-examine on all trial issues. We disagree.

Although there may be some overlap, the determination of whether there is evidence to show beyond a reasonable doubt that the defendant committed the alleged crimes is significantly more demanding and of a different focus than determining whether there is a significant risk that the defendant will flee, harm another, commit another felony, or intimidate witnesses pending the trial. The reasonable doubt standard and the significant risk standard cannot be equated; and determining whether a specific crime was committed reaches different issues than determining the possibility of future bad conduct by the defendant. We see no need to belabor the point. "[T]he principal evil at which the Confrontation Clause was directed was the [English and continental] civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." Crawford v. Washington, 541 U.S. at 50(III)(A), 124 S.Ct. 1354. Following Craft, we hold that Dickson did not have an adequate opportunity at the bond hearing to cross-examine his father regarding his father's statement to the investigator, and therefore the trial court erred by allowing the statement.

We must next assess whether the error was harmless.

A constitutional error is harmless, if there is no "reasonable possibility that the evidence complained of might have contributed to the conviction." Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). The test is not "whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of," id., but whether the evidence complained of may have influenced the fact-finder's deliberations, see Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726 (1969). Harryman v. Estelle, 597 F.2d 927, 929 (5th Cir.1979).

"Overwhelming evidence of the defendant's guilt can negate the possibility that the constitutional error contributed to the conviction. [Cit.]" Vaughn v. State, 248 Ga. 127, 131-132, 281 S.E.2d 594 (1981).

Here, Grady's statement to the police included his first-hand account of the altercation between the two brothers, including his observations about the circumstances under which Dickson approached his brother...