Holloman v. State

• Decision Date: 02 July 2012
• Docket Number: No. S12A0958.,S12A0958.
• Citation: 729 S.E.2d 344,291 Ga. 338,12 FCDR 2180
• Parties: HOLLOMAN v. The STATE.
• Court: Georgia Supreme Court

291 Ga. 338

729 S.E.2d 344

12 FCDR 2180

HOLLOMAN

v.The STATE.

No. S12A0958.

Supreme Court of Georgia.

July 2, 2012.

John Robert Mobley, II, Tifton, for appellant.

Clifford Paul Bowden, Dist. Atty., District Attorney's Office, Kevin Eugene Hutto, Asst. Dist. Atty., Tifton Judicial Circuit District Attorney's Office, Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Katherine Ruth Thrower, Asst. Atty. Gen., Department of Law, Atlanta, for appellee.

HINES, Justice.

Malcolm Holloman appeals his conviction for felony murder while in the commission of aggravated assault and the denial of his motion for new trial in connection with the fatal stabbing of Robert Calloway. He maintains that there were violations of the rule of sequestration; erroneous admissions into evidence of certain photographs, his prior convictions, and a prior incident as a similar transaction; and error in regard to the trial court's instructions to the jury. Finding the challenges to be without merit, we affirm.¹

Viewed in the light most favorable to the verdicts, the record reflects the following. On May 17, 2008, Robert Calloway spent the day with co-worker Jackson. They, along with another individual, drove to a home in “Orchard Hill Trailer Park,” which was considered a “gathering place” for people in the community. When they arrived, Holloman approached the open window on the passenger side of the vehicle and began to argue with Calloway. Holloman stated, “what's this BS, I heard you were looking for me.” Calloway responded that Holloman should “go on” because Calloway did not “want to hear that BS.” Calloway exited the vehicle and the two men stood in the road and continued to argue. The argument escalated and Holloman pulled out a “blade knife”; he “took a swing” at Calloway with the knife and Calloway attempted to respond by swinging a beer bottle at Holloman. Holloman “stuck” Calloway with the knife, and Calloway stepped back, but Holloman stabbed him again; Calloway collapsed. As Holloman fled the scene on foot, he made a “ death sign” with his hands.

Police arrived on the scene and found Calloway lying on the ground and bleeding profusely; a woman was holding a towel to his chest. Emergency medical personnel transported Calloway to the hospital but efforts to revive him failed, and he was pronounced dead.

Later that day, Holloman turned himself in to police, and they took possession of the black tee shirt he was wearing and a knife found in his right front pocket. There was blood on the items, and the shirt was found to contain Calloway's DNA as well as that of Holloman. Calloway died from multiple sharp focus wounds to his chest, including one to the back of his heart. The wounds were consistent with those that could have been inflicted with a knife like the one found in Holloman's pocket.

At trial, the State presented evidence of an incident which had occurred about a month before the fatal stabbing in which Holloman went to a man's home, resumed a previous argument, and was ordered by the man to leave; Holloman stabbed the man in the back twice. Holloman testified at trial, admitting that he stabbed Calloway, but he claimed that Calloway first attacked him in a rage, and that he thought that Calloway had a gun because he was known to carry one.

1. The evidence was sufficient to enable any rational trier of fact to find Holloman guilty beyond a reasonable doubt of the felony murder of Calloway. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Holloman contends that the trial court erred by permitting the State to have the investigating agent from the Georgia Bureau of Investigation (“GBI”) remain in the courtroom at counsel table during the entire trial, and thereby, violate the rule of sequestration. See OCGA § 24–9–61.² But, the contention is unavailing.

The State requested that the agent be excused from the rule because he was the lead agent on the case and was needed to help “keep everything straight.” In the situation in which the State maintains that it needs the presence of the primary investigator for the orderly presentation of the case, excepting the investigator from the rule of sequestration is within the discretion of the trial court. Williams v. State, 277 Ga. 853, 856–857(4), 596 S.E.2d 597 (2004). Holloman acknowledges that it is a matter of the trial court's discretion but he cites Carter v. State, 271 Ga.App. 588, 590, 610 S.E.2d 181 (2005), and urges that such discretion was abused in that the State's statement of need was the type of “empty assertion” found lacking in that case.

As this Court has noted,

[i]n Carter, the Court of Appeals questioned the trial court's ready acceptance of the State's conclusory assertion that the law enforcement officer at issue was needed in the courtroom, but ultimately it applied the principle that when the prosecutor indicates that a witness is needed in the courtroom for the orderly presentation of evidence, there is no abuse of the trial court's discretion in permitting the witness to remain.

Warner v. State, 281 Ga. 763, 765(2), 642 S.E.2d 821 (2007). (Internal quotation marks and citations omitted.) Moreover, in the present case, the prosecutor elaborated that the agent was needed because of the seriousness of the case and the fact that there were expected to be more than 40 witnesses and numerous exhibits introduced into evidence. No abuse of the trial court's discretion has been shown. Id.

3. Holloman further complains that the trial court erred when it did not require the GBI agent to be called as a witness first. However, as Holloman concedes, it was likewise within the trial court's discretion to allow the primary investigator to testify after other witnesses. Hardy v. State, 245 Ga. 673, 266 S.E.2d 489 (1980). And, contrary to Holloman's assertion, to do so does not run afoul of the holding in Stuart v. State, 123 Ga.App. 311, 180 S.E.2d 581 (1971), when the trial court refuses to direct that the unsequestered State's witness testify first so as, in this case, not to dictate how the State “runs [its] case.” Hardy v. State, supra.

4. Holloman next contends that the trial court erred in allowing the jury to view what he terms “autopsy pictures,” claiming that they were prejudicial and highly inflammatory. He specifically cites State's Exhibits Numbers 2, 10, and 11, which he describes as depicting “the thoracotomy, or large incision below the left nipple of the deceased.”

As Holloman acknowledges in argument, the incision at issue was not part of the autopsy of the victim, but was made by an emergency room physician in an attempt to save the victim's life. At the hearing on Holloman's motion in limine with respect to the photographs, the State maintained that they were necessary to show the injuries inflicted on the victim, and that there was no way to crop the incision from the photographs because of its nearness to the stab wounds.

It is within the discretion of the trial court whether to admit photographic evidence. Stewart v. State, 286 Ga. 669, 670(3), 690 S.E.2d 811 (2010). Further, photographs which show pre-autopsy incisions and which depict the location and nature of the victim's wounds are admissible because they are relevant and material. Banks v. State, 281 Ga. 678, 680(2), 642 S.E.2d 679 (2007). They are admissible even if they are duplicative and might inflame the jury, and regardless of whether the cause of death is in dispute. Roberts v. State, 282 Ga. 548, 552(9), 651 S.E.2d 689 (2007).

There is little question that the incision was in proximity to the victim's stab wounds; but, even if it was demonstrated that the photographs could have been cropped so as to adequately show the victim's fatal injuries absent the incision, it is of no aid to Holloman. For if the photographs could credibly be deemed gratuitous, and thus controlled by this Court decision in Brown v. State, 250 Ga. 862, 867, 302 S.E.2d 347 (1983), their admission would have to be deemed harmless in light of the overwhelming evidence supporting the jury's verdicts. Heard v. State, 257 Ga. 1, 2(2)(b), 354 S.E.2d 115 (1987).

5. Holloman maintains that the trial court erred in allowing evidence of his prior convictions that were older than ten years to be introduced into evidence. See OCGA § 24–9–84.1³ But, no error has been shown.

The following exchange occurred on defense counsel's direct examination of Holloman.

COUNSEL: This isn't the first time you've been in court either, is it?

HOLLOMAN: No, ma'am. I have not—this is not my first time being in court.

COUNSEL: You got convicted once of possession of cocaine, right ?

HOLLOMAN: Yes, ma'am. I got convicted of that.

COUNSEL: And that was back in 2007?

HOLLOMAN: Yes, ma'am, April of 2007.

The trial court permitted evidence of Holloman's prior convictions for the limited purpose of impeaching his statement that he had been convicted once. See OCGA § 24–9–82.⁴ Holloman urges that this evidence was not admissible under OCGA § 24–9–82 in that his statement that he was once convicted of possession of cocaine was true because his other convictions were for other crimes. However, it was within the trial court's discretion to determine whether the jury might have interpreted Holloman's testimony as implying that he had only one previous encounter with the law. McNeal v. State, 289 Ga. 711, 713(2), 715 S.E.2d 95 (2011).

6. Holloman asserts that the trial court erred by allowing into evidence as a similar transaction testimony from Rufus Jones about a violent incident with Holloman that occurred about a month before the fatal stabbing of Calloway. He complains that the evidence was sought by the State to show his course of conduct and bent of mind, which he maintains is inappropriate because it is “dangerously close to being his character,” and is rarely at issue. On the contrary, permitting evidence of a similar prior incident involving the defendant in order to show the defendant's...