Gross v. State
| Decision Date | 30 November 1989 |
| Docket Number | No. S89A0549,S89A0549 |
| Citation | 385 S.E.2d 674,259 Ga. 627 |
| Parties | GROSS v. The STATE. |
| Court | Georgia Supreme Court |
Derek Harrison Jones, Atlanta, for Gross.
Thomas J. Charron, Dist. Atty., Thomas A. Cole, Asst. Dist. Atty., Marrietta, Michael J. Bowers, Atty. Gen., Andrew S. Ree, Atlanta, for State.
Appellant Mark Dion Gross appeals his jury convictions of two counts of murder. The trial judge sentenced him to two consecutive life terms. Gross raises seven enumerations of error. We affirm. 1
1. Though not raised as an error, we find that the facts are sufficient for a rational trier of fact to have found Gross guilty on each of the two murder counts. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The jury could have found the following facts:
When the wife of one of the victims, Ms. Santiago, left their residence, Gross and her husband were in an upstairs bedroom while the other victim, Wayne Peele, was in the living room sitting on the sofa watching television. Ms. Santiago left around 10:20 pm. Some time after 11:00 pm, neighbors heard shots coming from Santiago's residence. The police found Santiago in the bedroom of the house. He died from gunshots to his chest and head. The shots were fired from approximately two feet away. Peele was found in a neighbor's driveway. The physical evidence showed that he had been shot while sitting on the sofa, but he did not die until after he had left the residence and had been shot again. Ms. Santiago reported that several items of jewelry had been stolen.
The State called several witnesses who had seen Gross the day after the double homicide. The witnesses testified that Gross appeared nervous and that he stated his friend "George" had shot the two victims. One of the witnesses testified Gross told him that Gross had had to shoot two people. Also, while talking with investigators after waiving his Miranda rights, Gross admitted he had been at Santiago's residence, that he had "committed a great sin and hoped that God would forgive him," and that "Carlos was a faggot who deserved to die."
Gross was arrested in Michigan two days after the homicides. His cell mate, John Robert Thompson, later told investigators that Gross admitted he had committed the homicides and that he had hidden the gun so that he could not be linked to the crime. At trial, Thompson stated that he had made up the story. The State cross examined Thompson as to his prior statement and then played a recording of Thompson's statement into evidence.
2. Gross raises as his first enumeration the trial court's admission of certain photographs of the victims. He argues that he was denied a fair trial because the photographs were repetitive, inflammatory, and irrelevant as the cause of death was not disputed as to either victim. Although there is some overlap among the pictures showing the victims' gunshot wounds, each picture is different. We find no error in this case. Strickland v. State, 247 Ga. 219, 224, 275 S.E.2d 29 (1981); Moses v. State, 245 Ga. 180, 187, 263 S.E.2d 916 (1980).
3. During the course of the trial, the State played a tape containing a reference to Gross's being arraigned for another crime and a reference to Gross's having stolen some items from Thompson's mother. Gross correctly argues that this impermissibly brought his character into evidence. The error in this instance was cured by the judge's instructions and by his asking the jury panel whether any of them would be unable to strike the testimony from their minds. Furthermore, there was strong evidence of guilt. Therefore, we find no error. Sabel v. State, 250 Ga. 640, 644, 300 S.E.2d 663 (1983).
4. During the trial, the State called Thompson, Gross's cell mate in Michigan, to the stand. As the State began questioning him concerning his statement with regard to certain admissions Gross had made, Thompson stated that he had made up the story and that he did not remember making certain statements. Even after being provided with a seven-page summary, he still claimed that he did not fully remember making all of the statements, though he did remember some of them. The State then called the detectives, who had taken Thompson's statement, and questioned them concerning the voluntariness of the interview. After laying a foundation, the State played Thompson's recorded interview into evidence.
Gross contends that although Thompson's prior inconsistent statements are admissible as substantive evidence under Gibbons v. State, 248 Ga. 858, 286 S.E.2d 717 (1982), the impeachment was completed prior to the introduction of the tape because Thompson had admitted making several of the statements,...
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