Fincher v. State

• Decision Date: 24 February 2003
• Docket Number: No. S02A1490.,S02A1490.
• Citation: 578 S.E.2d 102,276 Ga. 480
• Parties: FINCHER v. The STATE.
• Court: Georgia Supreme Court

578 S.E.2d 102

276 Ga. 480

FINCHER v. The STATE.

No. S02A1490.

Supreme Court of Georgia.

February 24, 2003.

Reconsideration Denied April 11, 2003.

Gary P. Bunch, Atlanta, for appellant.

Peter J. Skandalakis, Dist. Atty., Anne C. Allen, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Jill M. Zubler, Asst. Atty. Gen., for appellee.

BENHAM, Justice.

Christopher Cornelius Fincher appeals from his conviction for malice murder. The evidence showed that the victim, Fincher's mother, was killed by two blows to the head. Fincher's statement to the police, and his testimony at trial, was that he was sleeping in a chair in the front room of his home when an unknown person entered the house. In a sleep-like state, Fincher claimed, he twice struck the intruder with a bat he always kept there beside the chair. Fincher testified that it was only after striking the two blows that he realized that the intruder was his mother. He then tried to call his stepfather while washing some of the blood off the porch, and then took his mother to the hospital. The State introduced testimony that Fincher had said he hated his parents and wanted to kill them. A witness who was incarcerated with Fincher and gave the police a statement to the effect that Fincher deliberately killed his mother, refused to testify at trial on the crucial points. Blood spatter evidence and other physical evidence suggested the blows were struck out on the porch not inside as Fincher claimed.

1. The evidence adduced at trial was sufficient to authorize a rational trier of fact to find Fincher guilty beyond a reasonable doubt of malice murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Fincher enumerates as error the denial of his motion to suppress evidence seized from the exterior of his home. The basis of the motion was that the police had entered into the curtilage of the property and begun their investigation without a warrant. The testimony at trial established that police officers were dispatched to the scene to determine whether there had been, as reported by Fincher, an accident. To do so, police officers went onto the property, and onto the porch, but not into the house. In the three hours between their entry onto the property and the issuance of a search warrant, the officers made observations which they used to support the application for a warrant, including blood spatter analysis. The trial court ruled that the officers were lawfully on the property and denied the motion. Pretermitting the question of the legality of the initial entry onto the property, we uphold the denial of the motion to suppress on the principle that "[a] trial court's ruling on a motion to suppress will be upheld if it is right for any reason. [Cit.]" Perez v. State, 249 Ga.App. 399, 403(3), 547 S.E.2d 699 (2001). The testimony taken during consideration of Fincher's motion to suppress established without dispute that Fincher and his stepfather returned to the house within an hour of the entry onto the property by the police and gave consent for a search. Fincher walked the police through his version of the events leading to his mother's death, inside the house and outside. In State v. Sutton, 258 Ga. 382(2), 369 S.E.2d 249 (1988), where a law enforcement officer had entered the curtilage and observed contraband before receiving consent to search, this Court held that a consent to search "`amounts to a waiver of the warrant requirement with respect to the search previously conducted' ... [and ratifies] the prior warrantless entry into the curtilage...." That being so, the consent to search given by Fincher and his stepfather cured any defect in the warrantless entry onto the property and authorized the denial of the motion to suppress.

3. Fincher complains that he was denied his right to confront a witness. The State called a witness to testify regarding statements allegedly made to the witness by Fincher while they were both in jail. When the witness refused to answer questions regarding what Fincher had said to him regarding his mother's death, the State was permitted over Fincher's objections to ask questions containing their own answers. "[T]he undeniable effect of this prosecutorial procedure was to place before the jury, through the questions asked, the content of [the witness]'s statement to the police, and the clear inference that the defendant had made these incriminating statements to [the witness]." Lawrence v. State, 257 Ga. 423, 425(3), 360 S.E.2d 716 (1987). However, though we strongly disapprove of the procedure permitted by the trial court, the issue was not preserved for appeal because Fincher did not renew his motion for mistrial after curative instructions were given. Ford v. State, 269 Ga. 139(3), 498 S.E.2d 58 (1998) (defendant waived issue because he did not renew motion for mistrial after court gave curative instruction).

4. Fincher contends that the prosecuting attorney engaged in three different improper arguments during closing arguments. The first was a suggestion made twice during the argument that if the jury believed Fincher's version of the facts, it should "cut him loose, let him go." Fincher argues on appeal that the argument disregards the presumption of innocence and shifts the burden of proof. We find it susceptible of neither interpretation. This case involved an admitted killing, the question being whether Fincher deliberately killed his mother as the State alleged or killed her accidentally because he thought she was an unknown intruder into the house. The prosecuting attorney's argument merely called upon the jury to decide between the two versions of the crime they had heard.

The other allegedly improper arguments were misstatements of the evidence: in seeking to refute Fincher's testimony, the prosecutor stated that no blood was found on the porch when the undisputed evidence was that blood was found on the porch; and the prosecuting attorney...