Harris v. State

Decision Date05 December 1997
Docket NumberNo. A97A1236,A97A1236
Citation494 S.E.2d 738,229 Ga.App. 705
Parties, 98 FCDR 42 HARRIS v. The STATE.
CourtGeorgia Court of Appeals

Paul J. McCord, Atlanta, for appellant.

J. Tom Morgan, District Attorney, Desiree S. Peagler, Assistant District Attorney, for appellee.

McMURRAY, Presiding Judge.

Convicted of the armed robbery of Tammy Nelson, OCGA § 16-8-41, defendant Harris appeals on the grounds that the trial court erred in refusing to have the sheriff serve his witnesses subpoenas and in admitting evidence of similar transactions. We affirm.

Factual Background

Around 10:00 in the evening on July 3, 1994, Nelson and her relatives parked at the Holiday Inn in DeKalb County where they were staying. As they walked toward their rooms, two men arrived in a dark mid-sized American vehicle with tag number CBG297 and jumped out. One of the men (identified by Nelson at trial as Harris) pointed a revolver at her and demanded money. Nelson complied, and the men escaped.

At trial, the court admitted evidence of two similar transactions. The first is that at 3:00 a.m. on June 21, 1994, Lisa Luttrell and Robin Martinez drove to the parking lot of a retailer in the general vicinity of the Holiday Inn to retrieve a car. Two men pulled up in a dark blue four-door American car with a tag having the first three letters "CBG." One man (later identified as defendant Harris) jumped out with a revolver and demanded their purses, which were surrendered. The men escaped.

The second similar transaction occurred on July 17, 1994. Dr. Cesar Garcia and his family were standing in the same Holiday Inn parking lot when an African-American male (later identified as Demond Johnson) approached them with a revolver and demanded money. When a confrontation erupted, Johnson shot and killed Dr. Garcia and took his wallet. Defendant Harris was identified as the driver of the four-door American getaway car.

Procedural History

During the proceedings related to the Garcia incident, the trial court found Harris indigent and appointed counsel. A jury convicted Harris of murder, felony murder and armed robbery.

Harris was later indicted for the armed robbery of Nelson. He declined assistance of a court-appointed attorney and proceeded pro se. On September 12, the State gave defendant Harris notice of intent to introduce similar transactions and filed its list of witnesses. During a pretrial hearing on September 21, the court informed Harris that he would have the right to subpoena his own witnesses. Harris requested 20 subpoenas from the clerk, which he received. On December 4, Harris filed his list of twenty-eight witnesses, including twenty-two in-state witnesses, one of whom was the incarcerated Demond Johnson. He also moved the court to suppress evidence of the similar transactions.

At a motions hearing on December 11, Harris stated that as an incarcerated, indigent, pro se defendant he had no means of having his subpoenas served, and he requested the trial court to arrange for the sheriff to serve them. The trial court declined, but Harris later renewed his request for assistance in serving the subpoenas. He sought service on Wayne Gray, Patricia Gray and Barbara Nelson, relatives of Nelson who were nearby when the Nelson robbery took place and all of whom resided out of state. The trial court again denied this request, explaining to Harris that he is required to have a basis for the witnesses' testimony before subpoenaing them. Harris responded that their testimony concerned this case and similar transaction evidence.

The trial court next considered Harris' motion to suppress evidence of the two similar transactions and ruled that both transactions were admissible. In conjunction with a request by Harris for funds to hire a private investigator to interview witnesses, the trial court raised the issue of the subpoena service again and told Harris he had not informed the trial court of the nature of the witnesses' testimony. Harris responded that two witnesses were local police detectives (Officers Baumgardner and Ice) who would testify about their involvement in helping witnesses identify Harris in the Garcia incident and who would possibly impeach that identification. The prosecutor then left the hearing so Harris could freely discuss the anticipated testimony from witnesses to be subpoenaed.

The trial court instructed Harris, "What you have to do is show me what it is that they are going to say specifically, not just that you want them in court.... What particular evidence do they have that would assist you in the trial?" Harris told the trial court he had subpoenas for Officer Fox, Officer Clere, Lisa Luttrell and Robin Martinez, all of whom were involved in the identification of Harris in the Luttrell incident. He wanted an investigator to question them about the manner in which that identification occurred, and he wanted them subpoenaed. The trial court ruled that the anticipated testimony was not material to Harris' case, and that these people would be called by the prosecution anyway so no subpoenas were necessary. The trial court then refused Harris' request for funds for an investigator.

At trial, the prosecution called Lisa Luttrell and Robin Martinez, but not Officers Clere and Fox, to testify about the Luttrell robbery. The State also called Officers Raymond Ice and Aaron McCrea, but not Officer Baumgardner, to testify about the Garcia transaction. Harris repeated his objections to the similar transaction evidence. Of the twenty-eight people on Harris' witness list, seven were called by the State. When the State rested, Harris tried to call Demond Johnson, who was present, but Johnson refused to testify on the grounds of self-incrimination. Harris then told the trial court that since the trial court had been unwilling to have subpoenas served on his other witnesses, he would present no evidence.

The jury found defendant Harris guilty of the crime charged. This appeal followed the denial of his motion for new trial. Held:

1. Defendant contends the trial court "erred in admitting evidence of an allegedly similar transaction."

After detailing the circumstances of the June 1, 1994 armed robbery of Lisa Luttrell and Robin Martinez at a pre-trial similar transaction hearing, the State's attorney stated that this "incident is similar not only in location [and] very close to the Holiday Inn [where the victim in the case sub judice was assaulted and robbed], but [that] it was very close in time, that the scheme was basically the same, that the identity is the same and that [the State seeks to] introduce it to show motive, and course of conduct." The trial court then took judicial notice of a similar transaction hearing in proceedings involving defendant's earlier prosecution (and subsequent conviction) for the July 17, 1995 armed robbery and murder of Dr. Cesar Garcia. It is undisputed that the trial judge in the case sub judice presided in the Garcia murder case and that, at a similar transaction hearing in that case, the State's attorney stated a proper purpose for admission at trial of the incident in the case sub judice. See Harris v. State, 268 Ga. 412, 490 S.E.2d 96 (1997); Johnson v. State, 266 Ga. 775, 778(6), 470 S.E.2d 637. Specifically, the similar transaction hearing transcript in the Garcia murder case reveals that the State's attorney gave a detailed account of the three criminal transactions in question (i.e., the Garcia murder, the Luttrell and Martinez armed robbery and the armed robbery in the case sub judice), pointed out the striking similarities of these offenses and then stated, "that that evidence should be presented to a jury because it would go to show the defendant's intent, common scheme and plan and motive." Under these circumstances, and in light of the fact that the incident in the case sub judice was properly admitted as a similar transaction in the Garcia murder trial, we find neither error nor infirmity which could possibly have deprived defendant of a fair trial. Saying otherwise not only ignores that the State's attorney proffered a proper purpose for admission of the similar transaction evidence, but also fails to appreciate the symmetrical logic authorizing the trial court's procedure taking judicial notice of the similar transaction proceedings in the Garcia murder proceedings--all without discounting the State's burden under Williams v. State, 261 Ga. 640, 642(1)(b), 409 S.E.2d 649. If the purpose for admitting proof of the crime in the case sub judice at the Garcia murder trial was proper, then the purpose for admitting proof of the Garcia murder in the case sub judice must also be proper.

2. Defendant Harris also contends the "trial court erred in failing to provide for service of [his] witness subpoenas."

The victim, a 27-year-old insurance professional, testified at trial and positively identified defendant as the perpetrator of the crime charged. The victim specifically testified that she first observed defendant and an accomplice drive by in the hotel's parking lot; that the parking lot's lights gave her "above average" illumination of the crime scene; that she watched defendant point a revolver at her mother and that she then looked directly at defendant from a distance of "about three feet" as defendant pointed the gun at her. The victim further explained that she exchanged words with defendant during this encounter; that she had a clear view of defendant and that defendant's face was not covered or disguised in any way during the armed robbery. We believe that this overwhelming evidence of defendant's guilt renders harmless any possible error the trial court may have committed in failing to issue subpoenas for the police officers who collected identification evidence from the similar transaction victims. Davis v. State, 216 Ga.App. 580, 582(3), 455 S.E.2d 115.

Judgment affirmed.

ANDREWS, C.J., BIRDSONG, P.J., and ELDRIDGE, J.,...

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