Holmes v. State
| Decision Date | 22 September 2008 |
| Docket Number | No. S08A1079.,S08A1079. |
| Citation | 667 S.E.2d 71,284 Ga. 330 |
| Parties | HOLMES v. The STATE. |
| Court | Georgia Supreme Court |
Defendant Recardo Holmes was convicted of malice murder and rape in connection with the death of 62-year-old Laverne Jackson.1 He appeals, asserting, inter alia, that a DNA sample was collected from him under false pretenses and that, therefore, evidence pertaining to the sample should have been suppressed. Finding no error, we affirm.
The victim was found lying face down and naked on her living room floor. She had seminal fluid on her leg and buttocks, and in her vagina, a massive wound in the back of the head caused by at least five individual blows that had driven pieces of her skull into her brain, and ligature marks on her neck that were severe enough to fracture her voice box.
In a conversation with a co-worker, Joe Gregory, Holmes said that, the previous evening, he hit a woman on the back of the head because "the bitch wouldn't give me none." Holmes was arrested later for public indecency and a DNA sample was obtained from him. The sample taken from Holmes was compared to the DNA found on the victim and it was determined to be a match.
In speaking with a detective about the murder, Holmes admitted that he killed the victim: Holmes added that he had psychological problems and suffered from paranoia and schizophrenia.
1. The evidence is sufficient to enable any rational trier of fact to find defendant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. The evidence adduced at a hearing on defendant's motion to suppress shows that defendant was arrested because he was exposing himself in public; that a detective asked defendant if he would be willing to give a DNA sample because it was department policy to seek such evidence whenever it "ran into cases like that"; but that, in fact, there was no such department policy. There was also evidence that the detective informed defendant that any time a DNA sample was obtained from an individual in custody it would be used and tested for comparison purposes; and that defendant gave his consent orally and in writing.
Relying upon State v. Gerace, 210 Ga.App. 874, 437 S.E.2d 862 (1993) and Beasley v. State, 204 Ga.App. 214, 419 S.E.2d 92 (1992), defendant argues that his consent to give the DNA sample was obtained deceptively and in violation of his Fourth Amendment rights because he was not advised that it would be used in an independent criminal prosecution. We disagree. In Gerace and Beasley, the Court of Appeals held that blood samples taken from a suspect in a criminal matter may not be used for purposes for which a suspect was not advised and to which he did not, therefore, consent. We have no quarrel with this rule of law when a defendant's consent is given conditionally, or in a limited context. See Turpin v. Helmeci, 271 Ga. 224, 225, 518 S.E.2d 887 (1999). The rule is not applicable here, however, because the detective informed defendant that his DNA sample would be used for comparison with other such samples and no limits were placed on the scope of Holmes' consent.
3. Defendant contends the trial court erred in refusing to grant his motion for change of venue. The motion was predicated on the fact that, the day before trial, a local newspaper published an article which stated that the trial judge ruled Holmes' statements to police were admissible, and that Holmes' DNA was obtained in connection with an indecent exposure charge.
The trial court did not abuse its discretion in denying defendant's motion for change of venue based upon pretrial publicity because Holmes failed to show that the pretrial publicity created an inherently prejudicial atmosphere or affected the jurors' ability to be fair and impartial. See Eckman v. State, 274 Ga. 63, 68(4), 548 S.E.2d 310 (2001); Roundtree v. State, 270 Ga. 504, 505(2), 511 S.E.2d 190 (1999).
4. The trial court did not abuse its discretion in admitting photographs which depicted the crime scene and the nature and location of the victim's injuries. Oliver v. State, 276 Ga. 665, 668, 581 S.E.2d 538 (2003); Brooks v. State, 258 Ga. 20, 22, 365 S.E.2d 97 (1988).
5. Defendant asserts that a custodial statement given to police should have been ruled inadmissible because he invoked his right to counsel. This assertion is without merit.
When a defendant invokes his right to counsel, police must cease all further interrogation until counsel is made available to defendant. However, if after invoking his right to counsel a defendant initiates further communication with police and knowingly and intelligently waives his right to counsel, police can question defendant further. Hopkins v. State, 263 Ga. 354, 356(3), 434 S.E.2d 459 (1993). That is exactly what happened here. When defendant was questioned initially, he informed the detective that he wanted a lawyer; the detective stopped the interview and told defendant he would be going to jail and charged with murder. Defendant then said that if he could speak with his family, he would tell the detective what happened. After speaking with his family, defendant was willing to converse with the detective. He was again advised of his constitutional rights, and he signed a waiver of rights form. Asked again if he was willing to talk without a lawyer, defendant replied affirmatively. The next day, defendant again asked to speak with police. Again, defendant was advised of his rights; and he signed yet another waiver of rights form. The evidence supports the trial court's finding that defendant waived his right to counsel and that his statements to the detective were made voluntarily. Hanifa v. State, 269 Ga. 797, 805, 505 S.E.2d 731 (1998).
6. Alleging the State failed to timely provide defendant with statements he made to Joe Gregory and the police, see OCGA § 17-16-8, defendant asserts the trial court erred in refusing to suppress his statements and in permitting Gregory to testify. We disagree.
OCGA § 17-16-6 authorizes a trial court to prohibit the introduction of evidence not disclosed; but it also provides that a trial court can grant a continuance, order the discovery or inspection of documents, or make any additional order it deems just and proper under the circumstances of the case. Blankenship v. State, 229 Ga.App. 793, 794, 494 S.E.2d 758 (1997).
The State made its entire police file available to defendant almost two weeks before trial, well in advance of the statutory ten-day requirement. The file contained defendant's statements and physical evidence. The State was unaware of Gregory's statement until six days before trial; however, it informed defendant about the statement as soon as it was discovered. Two days later, defendant was made aware of the fact that the State subpoenaed Gregory and planned to use him as a witness. Defendant attempted to keep Gregory from testifying, pointing out that he was not given timely notice of Gregory's statement. Finding no bad faith on the part of the State in failing to disclose defendant's statements, the trial court ruled that the statements would be admitted and that Gregory would be permitted to testify. In so ruling, the court added that it was willing to make Gregory available to defendant for an interview and to give defendant all the time he needed to question the witness before he took the stand. In light of these facts, it cannot be said that the State acted in bad faith or that defendant was prejudiced by the State's failure to more timely provide defendant with his statements to Gregory and the police. It follows that the trial court did not abuse its discretion in admitting defendant's statements and in permitting Gregory to testify. Compare Watson v. State, 278 Ga. 763, 774(14), 604 S.E.2d 804 (2004) with Peeples v. State, 234 Ga.App. 454, 456, 507...
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