Hayes v. State

• Decision Date: 16 November 2015
• Docket Number: No. S15A0764.,S15A0764.
• Citation: 298 Ga. 98,779 S.E.2d 609
• Parties: HAYES v. The STATE.
• Court: Georgia Supreme Court

298 Ga. 98

779 S.E.2d 609

HAYES

v.The STATE.

No. S15A0764.

Supreme Court of Georgia.

Nov. 16, 2015.

Ivars Lacis, Lacis Law, LLC, Peachtree City, for appellant.

Paula Khristian Smith, Sr. Asst. Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., Samuel S. Olens, Atty. Gen., Department of Law, Robert D. James, Jr., Dist. Atty., Anna Green Cross, Deputy Chief Asst. Dist. Atty., Dekalb County District Attorney's Office, for appellee.

HINES, Presiding Judge.

Samuel Johnson Hayes appeals from his convictions and sentences for malice murder, armed robbery, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony, all in connection with the death of Joshua Grier. For the reasons that follow, we affirm.¹

Construed to support the verdicts, the evidence showed that Grier owed money to Hayes. During the evening of January 21, 2012, the night before Grier's death, at her home, the sister of Hayes's girlfriend saw Hayes and Jahan Mims with a handgun, and they asked her husband to supply them with another pistol. Early the next morning, Hayes called Grier's cell phone multiple times while Grier was working a night shift at a Waffle House restaurant. Grier did not answer. Eventually, Grier spoke with Hayes and agreed to meet him at a shopping mall after Grier's work shift was over; at the time of this call, Hayes, accompanied by Mims, was in Hayes's vehicle parked outside of a business next to the Waffle House.

When Grier's shift ended at 7:00 a.m., he did not immediately leave the restaurant, but lingered for some time; he appeared nervous, and hugged his co-workers goodbye, which was unusual. Grier left the restaurant and, followed by Hayes and Mims, drove to a shopping mall parking lot where Hayes got into the backseat of Grier's car. At Hayes's direction, Mims drove Hayes's vehicle toward Lake Michelle, in DeKalb County, followed by Hayes and Grier in Grier's car. Mims made a detour to retrieve some clothes from a friend's house, while Hayes and Grier continued on. Mims was unable to complete the errand, and waited for Hayes to call him by cell phone after the other men " finished taking care of business or whatever." Hayes then called Mims and, driving Grier's vehicle, went to Mims's location; Hayes was alone. Mims asked about Grier, and Hayes said that Grier owed him money and that he had to "break him off." Mims then drove Grier's car to the home of the sister of Hayes's girlfriend, following Hayes, who drove his own vehicle. The next day, during an argument with his girlfriend, Hayes was overheard to say that someone was " pushing up daisies" and would not have to be "worr[ied] about anymore."

On the afternoon of January 22, 2012, Grier's body was found by fishermen at Lake Michelle; he had suffered fatal gunshot wounds

to his head and neck. Three of his pants pockets had been turned out. At the time of his death, Grier was a parolee and, on one of his ankles, wore a global positioning system ("GPS") device that tracked his location; data generated by the GPS device showed that his movements stopped at 9:22 a.m. on January 22, 2012, at Lake Michelle. That same morning, two men across the lake heard gunshots and saw a man outside a car resembling Grier's; the man entered the car and drove away. Data from cell phone towers indicated that Hayes's movements correlated with Grier's during the morning of Grier's death. Surveillance videos from two convenience stores on the route from the shopping mall to Lake Michelle showed two vehicles matching the description of Hayes's and Grier's passing the stores, apparently traveling in tandem. Grier's vehicle was found burned three days after Grier's death.

1. The evidence authorized the jury to find Hayes guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Hayes contends that his trial counsel failed to provide effective representation in several respects. In order to prevail on these claims, he must show both that counsel's performance was deficient, and that the deficient performance was prejudicial to his defense. Smith v. Francis, 253 Ga. 782, 783(1), 325 S.E.2d 362 (1985), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To meet the first prong of the required test, he must overcome the "strong presumption" that counsel's performance fell within a "wide range of reasonable professional conduct," and that counsel's decisions were "made in the exercise of reasonable professional judgment." Id. The reasonableness of counsel's conduct is examined from counsel's perspective at the time of trial and under the particular circumstances of the case. Id. at 784, 325 S.E.2d 362. To meet the second prong of the test, he must show that there is a reasonable probability that, absent any unprofessional errors on counsel's part, the result of his trial would have been different. Id. at 783, 325 S.E.2d 362. " ‘We accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.’ [Cit.]" Robinson v. State, 277 Ga. 75, 76, 586 S.E.2d 313 (2003).

(a) At the State's request, the trial court instructed the jury on the law of conspiracy, and trial counsel did not object. Although Hayes contends that counsel should have made an objection, it would have been unavailing. It is not error for the trial court to charge the jury on the law of conspiracy when the evidence introduced at trial supports the instruction, even when the defendant is not indicted for conspiracy. Belsar v. State, 276 Ga. 261, 262, 577 S.E.2d 569 (2003). Contrary to Hayes's contention, for a jury charge on conspiracy to be given, there is no prerequisite that the defendant must have been arrested with another person, or that another person be present with the defendant at the time the crime is completed; evidence of an agreement to commit a crime, which can be shown by evidence of a common design as well as an express agreement, will support the giving of a jury charge on the law of conspiracy. See Crawford v. State, 294 Ga. 898, 902–903(2), (3), 757 S.E.2d 102 (2014). And, although no witness testified directly to the existence of a conspiracy, evidence was introduced that supported the inference that Hayes acted with Mims in a common design to rob and kill Grier. Indeed, evidence linking Mims to the crimes was important to the defense theory that it was Mims who was responsible for killing Grier, and trial counsel correctly recognized that a conspiracy charge was warranted and that there was no basis to object to it. Accordingly, it was not ineffective assistance of counsel to fail to object to the charge. See Martin v. State, 281 Ga. 778, 781(3)(a), 642 S.E.2d 837 (2007).

(b) Hayes contends that trial counsel should have objected when the State introduced evidence of Grier's cell phone calls, texts, and the location of the associated cell phone towers, without the testimony of the custodian of those records. As Hayes recognizes, under the exception to the hearsay rule for records of regularly conducted business activity, record evidence may be admitted without the custodian's in-court testimony if compliance with the requirements of that exception is shown "by certification that complies with paragraph (11) or (12) of Code Section 24–9–902...." OCGA § 24–8–803(6).² Hayes argues that an objection would have been properly sustained on the ground that the certification that accompanied those records was not notarized or signed under penalty of perjury. However, he points to no authority in Georgia law that imposes such a requirement in order to satisfy the certification provision of OCGA § 24–8–803(6).

By its own terms, OCGA § 24–8–803(6) does not require that the submitted certification be notarized or signed under penalty of perjury. Rather, it looks to OCGA § 24–9–902(11) and (12),³ and declares that the certification must meet the strictures of one of those subsections. And, as the trial court noted, the subsection specifically applicable, OCGA § 24–9–902(11), places no such requirement on a certificate of authenticity. Nonetheless, Hayes contends that such a requirement should be read into this State's new Evidence Code, asserting that evidence tendered under the similar Federal Rule of Evidence 803(6)⁴ would require that the certification be notarized or signed under penalty of perjury. It is certainly true that

[i]n 2011, our General Assembly enacted a new Evidence Code, of which [OCGA § 24–8–803 ] is a part. Many provisions of the new Evidence Code were borrowed from the Federal Rules of Evidence, and when our courts consider the meaning of these provisions, they look to decisions of the federal appeals courts construing and applying the Federal Rules, especially the decisions of the Eleventh Circuit.

State v. Frost, 297 Ga. 296, 299, 773 S.E.2d 700 (2015). However,

[w]here a provision of the new Evidence Code differs in substance from the counterpart federal rule, as interpreted by federal courts, we must correspondingly presume that the General Assembly meant the Georgia provision to be different.

Parker v. State, 296 Ga. 586, 592(3)(a), 769 S.E.2d 329 (2015) (Footnote omitted.) And here, the provisions differ.

Just as OCGA § 24–8–803(6) refers to specific provisions governing authenticating records found in OCGA § 24–9–902(11) and (12), so too does Fed.R.Evid. 803(6) look to a corresponding Federal Rule governing record authentication, specifying Fed.R.Evid. 902(11) and (12).⁵ But, the provisions referred to carry significant differences. The Federal provision, Fed.R.Evid. 902(11), specifies that compliance with the requirements of Fed.R.Evid. 803(6) be "shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court." (Emphasis supplied.) No such language is found...