Humphrey v. State, S06A2049.

• Decision Date: 05 February 2007
• Docket Number: No. S06A2049.,S06A2049.
• Citation: 281 Ga. 596,642 S.E.2d 23
• Parties: HUMPHREY v. The STATE.
• Court: Georgia Supreme Court

281 Ga. 596

642 S.E.2d 23

HUMPHREY v. The STATE.

No. S06A2049.

Supreme Court of Georgia.

February 5, 2007.

Agis Reginald Bray, III, Albany, for appellant.

Thurbert E. Baker, Atty. Gen., Benjamin Henry Pierman, Asst. Atty. Gen., Kenneth Bryant Hodges, III, Dist. Atty., Gregory W. Edwards, Asst. Dist. Atty., for appellee.

HINES, Justice.

Cody Lee Humphrey appeals his conviction for malice murder in connection with the fatal stabbing of 11-year-old Precious Hostick. He challenges an in-court identification; the introduction of similar transactions; the admission into evidence of a witness's recorded statement; the trial court's instruction regarding such statement; the admission of certain hearsay testimony; and the denials of his motions for directed verdicts of acquittal. Finding the challenges to be without merit, we affirm.¹

The evidence viewed in favor of the verdicts showed that on August 17, 1993, 11-year-old Precious Hostick was stabbed repeatedly while in her apartment and she bled to death; she sustained 42 wounds. She was found with her nightgown pulled up, and the lower part of her body nude. The nightgown was folded in the middle as though it had been grasped and a button was pulled loose, indicating a struggle. The child's panties were found in her bedroom at the foot of the bed.

Humphrey lived with his girlfriend in the apartment directly above the one where the victim lived. The victim's mother frequently allowed Humphrey's girlfriend to use the telephone in her apartment, and the day before the murder, loaned her the apartment key for that purpose. The girlfriend told Humphrey she had the Hostick key, which she placed on a bar in their apartment. Humphrey's fingerprint was found on a telephone in the victim's apartment. There was no evidence of forced entry into the home.

Prior to the murder, Humphrey told a cell mate, Johnson, that he was angry at the people that lived below him because they kept calling the police on him, and that he was "going to get even one way or another." He was in possession of a butcher's knife the night before the murder. Humphrey was seen running away from the murder scene on the day of the murder by a neighbor, Patterson. Humphrey's sister also saw him that day and he had what appeared to be "red paint" on his jeans. Humphrey looked like "something was wrong," and "he was about high or something." She observed that Humphrey changed clothes before being picked up by the police for an interview regarding the murder.

Humphrey told his brother that a little girl had been killed at his apartment complex prior to the time that the child's body was found.

While incarcerated following the murder, Humphrey discussed details of the crime with fellow inmates, including that there was another girl, about five years old, present at the Hostick apartment at the time of the killing, and that the little girl hid under her covers and tried to pretend that she was asleep during the attack on her sister.

The victim's sister was indeed in the apartment at the time of the brutal attack. She heard noises coming from the living room; she heard the table fall over, a man say "lay down on the floor," and her older sister saying "help, mama, help." The little girl told her social services case manager, Murray, that her sister's killer was "the black man that lived upstairs above her."

1. Citing Neil v. Biggers, 409 U.S. 188, 196-197, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), Humphrey contends that the trial court erred in permitting Patterson to identify him in court because the identification was tainted by unduly suggestive pretrial identification procedures. He complains that the initial pretrial photographic array, which occurred long after the murder, contained several photographs which did not resemble him, and that in a second photographic lineup, two of the six males were white, two of the pictures were of the same person, and his photograph, unlike those of the other men, was in profile. But the complaints are unavailing.

An unduly suggestive procedure is one which leads the witness to the virtually inevitable identification of the defendant as the perpetrator, and is equivalent to the authorities telling the witness, "`This is our suspect.'" Padilla v. State, 273 Ga. 553 554(1), 544 S.E.2d 147 (2001). The fact that the accused may be of a different race or ethnicity does not in and of itself make the identification procedure impermissibly suggestive, especially when there are other individuals in the line-up having roughly the same characteristics and features as the accused. Id. While some of the photographs contained in the record are of individuals different in appearance, by virtue of race and otherwise, from Humphrey, there are others of men clearly resembling him. As far as the time gap of several years between the murder and the initial identification by Patterson, it goes to the question of reliability. See Bonner v. State, 278 Ga.App. 855, 856(2), 630 S.E.2d 127 (2006). But, even assuming arguendo that the pretrial identifications were tainted for whatever reason, Patterson's in-court identification of Humphrey was admissible because it did not depend upon the prior identifications but had an independent origin. Wilson v. State, 275 Ga. 53, 59(3), 562 S.E.2d 164 (2002). Patterson knew Humphrey by sight from living in the same apartment complex, and, from an adjacent apartment, clearly viewed Humphrey fleeing the crime scene. Patterson testified that he had "known all along" who it was that came out of the victim's apartment the morning of the murder. Id.

2. The State was permitted to introduce testimony from two of Humphrey's nieces and another young woman about Humphrey's sexual assaults upon them. Humphrey contends that the trial court erred in admitting such testimony as similar transaction evidence because the incidents were not relevant to the instant case, and constituted improper character evidence that resulted in his being irreparably prejudiced.

Certainly, a similar transaction is properly admitted if there is sufficient evidence that the accused committed the offense or act and there is a sufficient connection or similarity between the offense and the crime charged, so that proof of the former will tend to prove the latter; however, the evidence is not to be admitted if it is done so merely to raise an improper inference about the character of the accused. Greene v. State, 274 Ga. 220(2), 552 S.E.2d 834 (2001). But, that is not the case here. Humphrey incorrectly focuses on the differences between the prior assaults and the instant crime rather than correctly focusing on their similarities. Id. at 221(2), 552 S.E.2d 834. The victims unequivocally identified Humphrey as the perpetrator. Moreover, these other incidents, while not resulting in the death of the victims as in the instant case, plainly show Humphrey's bent of mind, pattern, or course of conduct to sexually assault, with threat of harm or actual violence, girls and young women with whom he was familiar.²

In any event, even if such evidence was inadmissible as similar transactions, any error would have to be deemed harmless because the other evidence supporting Humphrey's conviction was overwhelming, and it is highly probable that admission of the evidence of prior incidents did not contribute to the judgment. Clark v. State, 280 Ga. 899, 900(2), 635 S.E.2d 116 (2006).

3. The trial court allowed the State to introduce into evidence, under the necessity exception to hearsay,³ a recorded police interview of Johnson, in which Johnson related that while incarcerated with Humphrey shortly before the murder, Humphrey told him about wanting to get even with his neighbor on the floor below. Citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct 1354, 158 L.Ed.2d 177 (2004), Humphrey contends that the admission of this evidence violates the Confrontation Clause as well as constituting inadmissible hearsay. But, Humphrey's objection, which was made during a pre-trial hearing on motions by the State, was based upon the alleged violation of his right of confrontation; he did not pursue an objection to admission of the evidence as an improper exception to hearsay.⁴ There is a definite distinction between a challenge to the admission of evidence based upon the Confrontation Clause and that based upon an exception to the hearsay rule. Walton v. State, 278 Ga. 432, 434(1), 603 S.E.2d 263 (2004); Yancey v. State, 275 Ga. 550, 551-557(2), 570 S.E.2d 269 (2002). Even so, under either scenario,...