Guess v. State

• Decision Date: 31 May 1994
• Docket Number: No. S94A0386,S94A0386
• Parties: GUESS v. The STATE.
• Court: Georgia Supreme Court

Page 477

443 S.E.2d 477

264 Ga. 335

GUESS v. The STATE.

No. S94A0386.

Supreme Court of Georgia.

May 31, 1994.

Reconsideration Denied July 7, 1994.

Richard B. Thurman, Jasper, for Guess.

Roger G. Queen, Dist. Atty., Ellijay, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Rachelle L. Strausner, Asst. Atty. Gen., Dept. of Law, Atlanta, for the State.

BENHAM, Presiding Justice.

This appeal is from appellant's conviction of murder, armed robbery, and possession of a firearm during commission of a crime. ¹ The State presented evidence at trial that appellant formed a friendship with the victim and his wife, engaged in an adulterous affair with the victim's wife, accompanied the victim to a secluded place in the mountains of North Georgia, shot the victim to death, and disposed of the victim's truck and other belongings.

1. Although appellant did not raise the issue of the sufficiency of the evidence on this appeal, we have reviewed the record and conclude that the evidence adduced at trial was sufficient to authorize the jury to find appellant guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Prior to appellant's arrest for the murder, he made self-incriminating statements during a conversation with the victim's widow, who was wearing recording equipment at the behest of law enforcement officers. The trial court permitted the jury to listen to the tape and permitted the State to provide the jury with transcripts of the tape.

Appellant argues on appeal that playing the tape was error for two reasons: the sound quality was so poor that the tape was misleading; and he was not warned of his Fifth Amendment rights prior to the conversation. The fact that part of the tape was inaudible did not make it inadmissible. Where a proper foundation is laid for the admission of a taped conversation ², and part of the conversation is inaudible, the admission of the evidence is in the trial court's discretion. Burke v. State, 248 Ga. 124(2), 281 S.E.2d 607 (1981). Beyond the mere unsupported assertion that the inaudibility of parts of the tape made it misleading, appellant has not made a showing that the trial court abused its discretion, and we find no such abuse in our review of the record.

As to the Fifth Amendment issue regarding the tape, appellant's reliance on State v. Rogers, 173 Ga.App. 653, 327 S.E.2d 782 (1985), is misplaced. The holding there that a taped conversation was inadmissible was based on the fact that Rogers was in custody at the time. Since appellant was at liberty when the tape at issue here was made, the requirement that appellant be informed of his rights against self-incrimination was not triggered. See Shy v. State, 234 Ga. 816(I), 218 S.E.2d 599 (1975). We find no merit, therefore, in appellant's argument that the taped conversation was inadmissible.

Nor do we find merit in his argument that the trial court erred in permitting the jury to have transcripts of the recorded conversation. The circumstances under which the tape was made and the identity of the speakers were undisputed. The trial court carefully instructed the jury that the taped conversation itself was evidence, that the transcript was not evidence, and that the jury was to judge for itself what was said on the tape. With such a foundation being laid and such safeguards utilized, there was no error in permitting use of the transcripts. Gaston v. State, 180 Ga.App. 470(2), 349 S.E.2d 526 (1986).

3. During its cross-examination of appellant, the State proffered a photograph which appellant identified as depicting him, dressed in camouflage and armed with a weapon, in a particular valley. When appellant challenged the admission of the photograph on the ground of relevancy, the prosecuting attorney stated that it was offered to show that appellant dressed in camouflage and carried weapons in the mountains, the very circumstances under which appellant, according to the State's theory of the case, killed the victim. Applying the liberal standard of relevancy stated in Williams v. State, 153 Ga.App. 890(1), 267 S.E.2d 305 (1980), to the photograph at issue and to the State's theory of the prosecution, the admission of the photograph was not error.

4. During the State's direct examination of the victim's widow, she stated that a particular law enforcement officer had shown her appellant's "police record." The trial court denied appellant's motion for mistrial, but admonished the witness, struck the remark from the record, and instructed the jury to disregard it. The denial of appellant's motion for mistrial is enumerated as error.

The widow's statement in this case, though inappropriate, was not such as to appear purposeful. All the jury learned from the statement was that appellant had some kind of police record. There was nothing in the statement, however, to show that he had ever been convicted of a crime. The evidence of appellant's guilt, though largely circumstantial, was strong, and the widow's reference to appellant's police record could do little to bolster it. Furthermore, in light of the evidence that appellant used drugs frequently during the periods before and after the crime and that appellant conducted an adulterous affair with the victim's wife, the remark could have little impact on the jury's estimate of his character. The trial court's direction to the witness to avoid the topic and the curative instructions to the jury were direct and clear. Considering those factors and circumstances, we find no abuse of discretion in the trial court's denial of appellant's motion for mistrial. Sabel v. State, 250 Ga. 640(5), 300 S.E.2d 663 (1983).

5. Relying on Walker v. State, 260 Ga. 737(1), 399 S.E.2d 199 (1991), and Henderson v. State, 255 Ga. 687(1), 341 S.E.2d 439 (1986), for the proposition that it is error to exclude evidence that another person committed the crime, appellant contends that the trial court in this case erred in excluding evidence that a named person engaged in a homosexual act with the victim, that the victim was angry at other named persons who owed him money for drugs, and that he was angry at his employer. In both the cited cases, however, there was direct evidence of the other person's involvement in the crime: in Walker, a confession by the other person, later recanted; and in Henderson, the defendant's testimony that the other person committed the crime. In the present case, there was no evidence of any ill will toward the victim by any of the...