Glass v. the State.

• Citation: 712 S.E.2d 851,289 Ga. 542
• Decision Date: 11 July 2011
• Docket Number: No. S11A0611.,S11A0611.
• Parties: GLASSv.The STATE.
• Court: Supreme Court of Georgia

289 Ga. 542

712 S.E.2d 851

11 FCDR 2193

GLASS

v.The STATE.

No. S11A0611.

Supreme Court of Georgia.

July 11, 2011.

Veronica Evette Brinson, Veronica Brinson & Associates, LLC, Macon, for appellant.Kevin Thomas McMurry, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Department of Law, Peter J. Skandalakis, Dist. Atty., Paula Khristian Smith, Sr. Asst. Atty. Gen., Sara Kaur Sahni, Asst. Atty. Gen., Department of Law, for appellee.CARLEY, Presiding Justice.

Appellant Kentez L. Glass and his co-defendant Christopher K. Anderson were separately indicted, but later tried jointly before a jury on a new indictment. Glass was found guilty of the felony murder of Jenterra Bennett, the underlying felony of aggravated assault against Anderson, and possession of a firearm during the commission of a felony. The trial court entered judgments of conviction and sentenced Glass to life imprisonment for murder, a concurrent 20–year term for aggravated assault, and a consecutive five-year term for the weapons charge. Anderson was convicted of aggravated assault against Glass and certain firearms offenses, and those convictions were affirmed on appeal. Anderson v. State, 306 Ga.App. 423, 702 S.E.2d 458 (2010). After a motion for new trial was filed by Glass and denied by the trial court, he appealed to the Court of Appeals, which transferred the case to this Court.^*

1. Construed most strongly in support of the verdicts, the evidence, as summarized by the Court of Appeals, shows the following:

[I]n the late evening of August 16, 2007, Anderson exchanged words with ... Glass and others as he departed a Coweta County pool room, returning shortly thereafter with a gun which he fired at Glass but missed as he ran. Glass, in turn, returned to the tavern early the next morning and fired into a crowd intending to hit Anderson. Instead he killed [Ms. Bennett, who was] an innocent bystander.

Anderson v. State, supra. Glass cursorily argues several matters, such as the criminal record of several witnesses and the placement of his picture around the community with an alert to be on the lookout, that only affect “[t]he credibility of the witnesses and the weight to be given to their testimony[, which] are matters for the jury.” Cox v. State, 279 Ga. 223, 224(2), 610 S.E.2d 521 (2005).

As part of his challenge to the sufficiency of the evidence, Glass complains that the photographic lineup used to identify him was impermissibly suggestive. However, he fails to point out where he raised this alleged error below. See Newton v. State, 280 Ga.App. 709, 711–712, 634 S.E.2d 839 (2006). Moreover, in his only specific complaint about the lineup, Glass mentions the position of his photograph in relation to the others, but he fails to show how his photograph stood out from the others in any arbitrary or apparent way. See Hodnett v. State, 269 Ga. 115, 118(4), 498 S.E.2d 737 (1998).

Glass also fails to point out where he raised his claim that the GBI firearm examiner who testified at his trial later resigned due to charges of falsifying information and lying under oath in other cases. Even assuming that on motion for new trial this claim was sufficiently supported,

[a] new trial is not authorized where the only effect of newly discovered evidence would be to impeach the credibility of a witness and “(t)his is true even though the witness whose credibility would be impeached gave the only testimony on some vital point in the case. (Cit.)” [Cit.]

Bryant v. State, 268 Ga. 664, 665(3), 492 S.E.2d 868 (1997).

Moreover, the fact that the gun used to kill the victim was never found does not make the evidence insufficient. Walker v. State, 282 Ga. 703, 704(1), 653 S.E.2d 468 (2007). “[T]hat the State did not produce certain evidence does not mean that the evidence presented was insufficient to allow a jury to find [Glass] guilty of ... murder.” Granville v. State, 275 Ga. 663, 664, 571 S.E.2d 759 (2002).

Numerous eyewitnesses saw Glass fire a gun into a crowd striking the victim, shout expletives, and assert that he was a killer. The evidence was more than sufficient for a rational trier of fact to find Glass guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Anderson v. State, supra.

However, the count that alleged aggravated assault upon the person of Anderson by shooting at him must merge into the felony murder count, which alleged that Glass caused the death of Ms. Bennett while in the commission of aggravated assault upon the person of Anderson.

Although the felony murder and the underlying felony were committed on different victims, the count of the indictment alleging felony murder sets forth the aggravated assault against [Anderson] as the underlying felony supporting the charge of felony murder. [Cit.] “Accordingly, a separate conviction and sentence on that aggravated assault count was not authorized and must be vacated.” [Cits.]

Wyman v. State, 278 Ga. 339(1), 602 S.E.2d 619 (2004). See also Bolston v. State, 282 Ga. 400, 401(2), 651 S.E.2d 19 (2007).

2. Glass contends that the trial court set pre-trial bond in an excessive and unreasonable amount, thereby preventing him from meaningfully participating in his defense. Although Glass made a pre-trial motion to reduce his bond, no transcript of the hearing was ever filed. The hearing on the motion for new trial shows that the court reporter who took down the pre-trial hearing moved to another country and that the court reporting agency could find no record of the transcript.

“OCGA § 17–8–5(a) requires the trial judge to ensure that the testimony in all felony trials is taken down.” Ivory v. State, 199 Ga.App. 283(1), 405 S.E.2d 90 (1991). “This code section clearly states that, in the event of a felony conviction, it is the duty of the state, at its own expense and through the agency of the presiding judge, to request the court reporter to transcribe the reported testimony. [Cit.]” State v. Hart, 246 Ga. 212, 213(1), 271 S.E.2d 133 (1980). “Pursuant to OCGA § 5–6–41(d), preliminary motions would be included in the proceedings subject to OCGA § 17–8–5(a).” Ivory v. State, supra at 284(1), 405 S.E.2d 90.

However, under State v. Hart, supra, the State's duty to request the court reporter to transcribe the reported testimony in a felony conviction has no time limit and thus cannot relieve an appellant from a felony conviction of his statutory duty to “cause the transcript to be prepared and filed as provided by Code Section 5–6–41....” OCGA § 5–6–42. Thus, where the transcript does not fully disclose what transpired in the trial court, the burden is on the complaining party to have the record completed pursuant to OCGA § 5–6–41. Zachary v. State, 245 Ga. 2, 4, 262 S.E.2d 779 (1980); Womack v. State, 223 Ga.App. 82(1), 476 S.E.2d 767 (1996) (transcript of hearing on pre-trial bond); Ivory v. State, supra. In particular, when a portion of the transcript is lost or destroyed, “OCGA § 5–6–41(f) and (g) allow the parties to recreate the transcript from memory and allow the [trial] court to do so when the parties cannot agree.” Turner v. State, 226 Ga.App. 348, 349(1), 486 S.E.2d 639 (1997). “When this is not done, there is nothing for the appellate court to review. [Cits.]” Zachary v. State, supra. See also Ivory v. State, supra.

Testimony at the hearing on the motion for new trial in this case “is not a sufficient substitute for a transcript.” Coates v. State, 222 Ga.App. 888, 889(2), 476 S.E.2d 650 (1996). See also Womack v. State, supra at 83(1), 476 S.E.2d 767 (rejecting affidavit and statements in appellate brief). “Without a transcript of the [bond] hearing or a statutorily authorized substitute, this Court must assume that the judgment below was correct.” Womack v. State, supra at 85, 476 S.E.2d 767 (On Motion for Reconsideration). Glass “has not followed the procedure required by Zachary, supra. We have nothing to review.” Ivory v. State, supra.

3. Glass further contends that the trial court erred in allowing the joinder of his case and Anderson's over objection.

The motion to sever was heard at the same time as the motion to reduce bond. Thus, no transcript exists with respect to either motion. Although the record shows that the prosecutor offered some recollection of the hearing on the motion to sever and that the trial court invited the parties to try to reach an agreement with regard to that hearing, Glass has not shown that he made any effort to consult with the State to create a substitute for a transcript or how that statutory procedure would be unreliable in this instance.

The law does not permit Glass, who as the complaining party has the burden of having the record completed under OCGA § 5–6–41(f), (g), “simply to refuse to participate in the statutory procedure and then claim error. [Cits.]” Turner v. State, supra. See also Stubbs v. State, 220 Ga.App. 106, 110(5), 469 S.E.2d 229 (1996). Where a transcript is not completed pursuant to those provisions, the complaining party effectively acquiesces in the omissions and fails to “carry [his] burden of showing by the record the facts necessary to establish [his] point. [Cit.]” State v. Nejad, 286 Ga. 695, 698(1), 690 S.E.2d 846 (2010).

Again, we have nothing to review, as Glass has not followed the procedure required by Zachary. Ivory v. State, supra. “In the absence of a transcript of the hearing on the motion to sever, this court must presume that after hearing the evidence the trial court correctly exercised its discretion in denying the motion. [Cit.]” Davis v. State, 158 Ga.App. 549, 550(1), 281 S.E.2d 305 (1981).

4. The trial court gave a cautionary instruction to the courtroom audience and witnesses with respect to alleged violations of the rule of sequestration. Glass urges that the trial court erred in failing to give that instruction in the presence of the jury. However, Glass made no showing during the trial...