Green v. State

• Decision Date: 25 June 2012
• Docket Number: No. S12A0853.,S12A0853.
• Parties: GREEN v. The STATE.
• Court: Georgia Supreme Court

291 Ga. 287

728 S.E.2d 668

12 FCDR 1991

GREEN

v.The STATE.

No. S12A0853.

Supreme Court of Georgia.

June 25, 2012.

Mark J. Nathan, Assistant Public Defender, EJC, Ann McNellis Elmore, Asst. Dist. Atty., Office Of The District, for appellant.

Larry Chisolm, Dist. Atty., Ann McNellis Elmore, Asst. Dist. Atty., Office Of The District Attorney, Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Katherine Ruth Thrower, Asst. Atty. Gen., Department of Law, for appellee.

CARLEY, Chief Justice.

After a jury trial, Appellant Sam Green was found guilty of the malice and felony murder of Candy Wright, a separate charge of aggravated assault against Ms. Wright, and the rape and aggravated assault of Leanna Ziel. The felony murder verdict was vacated by operation of law, and the charge of aggravated assault against Ms. Wright was merged into the malice murder count. The trial court entered judgments of conviction on the remaining guilty verdicts and imposed consecutive sentences of life imprisonment for murder and for rape and 20 years for aggravated assault. A motion for new trial was denied, and Appellant filed a timely notice of appeal.^*

[291 Ga. 288]1. Construed most strongly in support of the verdicts, the evidence shows that, in the early morning hours of July 6, 2007, Curtis White saw Appellant on top of Ms. Wright in a filthy shed and was told to keep going. Shortly thereafter, Appellant exited the shed, spoke with White, and started to run away. White checked on Ms. Wright, found her almost completely unclothed, realized that she was dead, told Vincent Robinson to call the police, and later identified Appellant in a photographic lineup and in court. Ms. Wright died of manual strangulation with multiple sharp force and blunt force injuries, and Appellant's DNA was found on the genital, rectal, and buttocks areas of her body. Appellant admitted that he had consensual sex with Ms. Wright on several occasions. In the early morning hours of September 24, 2007, Appellant grabbed Ms. Ziel, pushed her through a fence hole and onto some steps, held her neck with his hand to the point that she could not breathe, raped her, and fled. Ms. Ziel noticed and later identified Appellant's skull's head belt buckle, which was found in his bedroom and identified as his by his sister. Appellant's DNA was recovered in semen from Ms. Ziel's vaginal and rectal areas, and she identified him in court.

Appellant contends that the evidence would be insufficient if, as argued in other enumerations, certain evidence had been excluded and trial counsel had not been ineffective. The determination of the sufficiency of evidence, including what specific evidence can be considered and the effect of trial errors, has serious implications. Under Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), “once a reviewing court reverses a conviction solely for insufficiency of the evidence to sustain the jury's verdict of guilty, double jeopardy bars retrial.” Hall v. State, 244 Ga. 86, 93(5), 259 S.E.2d 41 (1979). However, the Double Jeopardy Clause “does not preclude the State from retrying a criminal defendant whose conviction is set aside due to trial error, such as the incorrect admission of evidence or improper instructions. [Cits.]” State v. Caffee, 291 Ga. 31, ––––(3), 728 S.E.2d 171 (2012). “[A] reviewing court must consider all of the evidence admitted by the trial court in deciding whether retrial is permissible under the Double Jeopardy Clause....” Lockhart v. Nelson, 488 U.S. 33, 41, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). Furthermore, with rare exceptions, “where a ‘defendant was deprived of effective assistance of counsel but the evidence was nevertheless sufficient to convict, the proper remedy is to reverse defendant's conviction and remand the matter for a new trial. (Cits.)’ [Cits.]” Langlands v. State, 282 Ga. 103, 105(2), 646 S.E.2d 253 (2007). Appellant's ineffectiveness claims involve the alleged failure to obtain more evidence, and, even if error in that regard requires reversal, a retrial itself would not violate his constitutional rights or be required for any other reason. See Langlands v. State, supra. Thus, in determining the sufficiency of the evidence, we consider all of the evidence admitted by the trial court, regardless of whether it was erroneously admitted, and disregard any additional evidence which a competent attorney might have obtained. See Maxwell v. State, 262 Ga. 73, 74(1), 414 S.E.2d 470 (1992),overruled on other grounds, Wall v. State, 269 Ga. 506, 509(2), 500 S.E.2d 904 (1998). Compare Livingston v. State, 268 Ga. 205, 209(1), 486 S.E.2d 845 (1997) (where, unlike here, hearsay was erroneously admitted, was wholly without probative value under unique Georgia rule applicable prior to the January 1, 2013 effective date of OCGA § 24–8–802, and therefore could not be considered in reviewing the sufficiency of the evidence).

Considering all of the evidence admitted by the trial court, and only that evidence, in the light most favorable to the verdicts, we conclude that the evidence, as summarized above, was sufficient to enable a rational trier of fact to find Appellant 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).

2. Appellant enumerates as error the trial court's denial of a motion to sever the offenses committed on July 6, 2007 from those occurring on September 24, 2007, arguing that the offenses were not sufficiently similar.

“If the charges are joined solely because they are of the same or similar character, a defendant has an absolute right to sever. (Cits.) ... (However,) offenses have not been joined solely because they are of the same or similar character when evidence of one offense can be admitted upon the trial of another, i.e., when they are so strikingly similar as to evidence a common motive, plan, scheme or bent of mind. (Cits.)” [Cit.] (Emphasis in original.)

Heard v. State, 287 Ga. 554, 558–559(4), 697 S.E.2d 811 (2010). “To be admissible, an independent act ‘does not have to mirror every detail’ of the crime charged, [cit.], and may reflect only a portion of the acts that establish the crimes being tried. [Cit.]” Chua v. State, 289 Ga. 220, 232(2), 710 S.E.2d 540 (2011).

Instead of focusing on the similarities between the two incidents, Appellant improperly focuses on the differences, including the absence of a severe injury resulting in death in one incident and the fact that the other incident may have begun with consensual sex. Humphrey v. State, 281 Ga. 596, 598(2), 642 S.E.2d 23 (2007). See also Green v. State, 279 Ga. 455, 456(2), 614 S.E.2d 751 (2005) (shooting and death occurred during only one incident). Both of the incidents in this case involved homeless victims with histories of prostitution and drug abuse, occurred within a short distance of one another, late at night less than three months apart, and had the same modus operandi of strangulation coupled with sexual activity in very unpleasant locations. See Spencer v. State, 268 Ga. 85, 86(2), 485 S.E.2d 477 (1997); Peppers v. State, 261 Ga. 338, 339–340(2), 404 S.E.2d 788 (1991). Thus, “evidence of crimes committed on one date would be admissible in the trial of those perpetrated on the other date.” Heard v. State, supra at 559(4), 697 S.E.2d 811.

The trial court properly found not only that each incident would be admissible as a similar transaction upon trial of the other, but also that the trier of fact in this case would be able to judge each individual offense fairly and intelligently. Accordingly, “ ‘it cannot be said that the trial court abused its discretion in denying the motion for severance. (Cit.)’ [Cit.]” Heard v. State, supra.

3. Appellant contends that the trial court erred in not allowing defense counsel to impeach Ms. Ziel with a certified copy of her misdemeanor conviction for prostitution on the ground that it is a crime of moral turpitude.

However, “[m]oral turpitude is no longer the standard.” Paul S. Milich, Ga. Rules of Evidence § 14:4 (2011–2012 ed.). See also Clements v. State, 299 Ga.App. 561, 562(1), 683 S.E.2d 127 (2009). “Evidence that any witness ... has been convicted of a crime shall be admitted if it involved dishonesty or making a false statement, regardless of the punishment that could be imposed for such offense.” OCGA § 24–9–84.1(a)(3). A prostitution conviction is inadmissible under this statute, as it is not in the nature of crimen falsi, involving some element of dishonesty or false statement. United States v. Colbert, 116 F.3d 395, 396 (9th Cir.1997); State v. Al–Amin, 353 S.C. 405, 578 S.E.2d 32, 38(II)(A) (S.C.App.2003); Commonwealth v. McNeil, 545 Pa. 42, 679 A.2d 1253, 1259 (1996); State v. Zaritz, 235 Neb. 599, 456 N.W.2d 479, 485 (1990). See also Clements v. State, supra.

More fundamentally, even if a prostitution conviction would otherwise be admissible pursuant to OCGA § 24–9–84.1, it is nevertheless barred from admission into evidence by our “rape shield” statute where, as here, it relates to the past sexual behavior of the complaining witness in a prosecution for rape and does not come within an exception in OCGA § 24–2–3. Fuller v. State, 169 Ga.App. 488, 489–490(1), 313 S.E.2d 505 (1984). Compare Villafranco v. State, 252 Ga. 188, 313 S.E.2d 469 (1984). “ Allowing evidence of prostitution that does not relate to the incident itself discourages reporting and prosecution of rapes. Even if such evidence is accurate, it does not remove the protection of the Rape Shield Statute. [Cits.]” Brown v. State, 214 Ga.App. 676, 678(2), 448 S.E.2d 723 (1994). See also Grier v. State, 276 Ga.App. 655, 662(4)(a), 624 S.E.2d 149 (2005).

4. Appellant urges that the trial court erred by denying a motion to suppress incriminating pre-trial statements made by Appellant during a police interview. He argues both that the statements were not...