Inman v. State

• Decision Date: 18 September 2006
• Docket Number: No. S06A0663.,S06A0663.
• Citation: Inman v. State, 635 S.E.2d 125, 281 Ga. 67 (Ga. 2006)
• Parties: INMAN v. STATE.
• Court: Georgia Supreme Court

281 Ga. 67

635 S.E.2d 125

INMAN v.STATE.

No. S06A0663.

Supreme Court of Georgia.

September 18, 2006.

Reconsideration Denied October 16, 2006.

COPYRIGHT MATERIAL OMITTED

August F. Siemon, III, Atlanta, for Appellant.

Catherine Harris Helms, Dist. Atty., Kimberly L. Whiddon, Asst. Dist. Atty., Nashville; Thurbert E. Baker, Atty. Gen., Robin Joy Leigh, Asst. Atty. Gen., Department of Law, Atlanta, for Appellee.

BENHAM, Justice.

Devonia Tyrone Inman appeals his convictions for the 1998 malice murder and armed robbery of Donna Brown, the manager of a fast-food restaurant in Adel, Georgia; the theft by taking the victim's car; and the possession of a firearm by a convicted felon. ¹

1.The State presented evidence that Ms. Brown was found with a fatal gunshot wound to the head in the parking lot of the fast-food restaurant she managed.Restaurant receipts of approximately. $1700 were missing, as was Ms. Brown's automobile.The vegetation in nearby shrubbery was matted down and one of the two restaurant employees who closed the restaurant at 12:30 a.m. told GBI investigators she had been frightened that night by a voice emanating from the shrubbery while she waited in the restaurant parking lot for her ride home.She said she had recognized the voice as that of appellant and described the speaker as bald and wearing a white tank top.²

Shortly after the victim was found, her car was discovered in the parking lot of a nearby abandoned fast-food restaurant.The car had been damaged by being driven under the chain that was draped across the parking lot's entrance.A newspaper carrier who had been near the abandoned restaurant awaiting the arrival of her papers testified she saw the victim's car between 1-1:30 a.m. being driven at a rate of speed that caused it to fishtail.She identified appellant as the driver in a pre-trial photo lineup and at trial, and testified he was wearing a white tank-top shirt and dark pants and drove the car under the chain into the parking lot where it was found.The witness testified that a car in which an African-American woman with short blonde hair was a passenger followed appellant and picked him up from the parking lot.

Appellant's girlfriend's sister, an African-American woman with short blond hair, testified she had told the GBI appellant had talked with her about robbing stores and had wanted her to accompany him to the fast-food restaurant that was the scene of the crime.She said he had a black gun with tape on its handle and was wearing a white "muscle" t-shirt and dark pants when he left her sister's apartment around midnight the night the victim was killed.³Another witness testified appellant had come into his house pointing a black-handled revolver with tape on it about ten days before the victim was killed.

A former cellmate of appellant testified that, in January 1999, the witness notified prison authorities that appellant had told him appellant and his girlfriend's sister had talked about robbing the Adel fast-food restaurant and had hidden in the bushes while waiting for the victim.They tried to grab the deposit bag from the victim as she entered her car, but she resisted and appellant shot her with a .44 caliber revolver when she screamed.The medical examiner testified the victim had been shot as she lay on the ground, with the barrel of the gun approximately one foot from her head when it was fired.A forensic scientist testified the bullet recovered from the victim's body had been fired from a Charter Arms "Bulldog 44," a .44-special caliber revolver.The State also established that appellant was a convicted felon at the time of the crimes, having pled guilty to making terroristic threats and acts in 1995.

The evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of malice murder, armed robbery, theft by taking of the automobile, and possession of a firearm by a convicted felon.Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

2.Relying on this Court's decision in Brodes v. State,279 Ga. 435, 614 S.E.2d 766(2005), appellant contends the trial court committed reversible error by charging the jury that the level of certainty demonstrated by an eyewitness in his or her identification of a defendant is a factor the jury may consider in evaluating the reliability of the eyewitness.The record reflects appellant requested the trial court give the charge he now asserts to be erroneous."The act of requesting an instruction in the trial court constitutes a specific waiver of the right to enumerate it as error on appeal.Because [appellant] induced the giving of the charge below, he is precluded from attacking it now."DeLoach v. State,272 Ga. 890(2), 536 S.E.2d 153(2000).

3.The trial court permitted the State to present evidence of several bad acts previously committed by appellant who contends on appeal that the admission of the evidence constitutes reversible error.

(a)The State presented a certified copy of a 1994 adjudication sustaining a petition in a California juvenile court that accused appellant of robbery.In an effort to establish the similarity between that California robbery and the crimes for which appellant was on trial in Georgia, the State presented the testimony of two California police officers who had been involved in the resolution of the California case.The investigating officer testified as to what the victim had told him about the robbery seven minutes after the robbery took place, including the fact that he had recognized one of the perpetrators (appellant) from school; the other officer responded affirmatively when asked whether the victim had picked appellant out of a lineup, though the officer was not present at the lineup.On appeal, appellant contends reversible error was committed when the police officers were permitted to give hearsay testimony with regard to what the California robbery victim had said during the investigation of the robbery.⁴

A law enforcement officer's testimony at trial⁵ concerning the similarity of a prior offense is inadmissible hearsay when the officer does not have personal knowledge of the facts of the prior offense.Bowdry v. State,211 Ga.App. 626, 440 S.E.2d 59(1994).⁶However, hearsay is admissible in the presentation of similar transaction evidence when it falls within a recognized exception to the hearsay rule.See, e.g., Brite v. State,278 Ga. 893(3), 608 S.E.2d 204(2005)(eyewitness's statement to police regarding a similar transaction admissible under necessity exception).Likewise, similar transaction hearsay which does not fall within a recognized exception has been ruled inadmissible on appeal.Brown v. State,274 Ga. 31(1), 549 S.E.2d 107(2001)(narrative portion of police report of similar transaction did not qualify as a business record exception to the hearsay rule);Cartwright v. State,242 Ga.App. 825(1b), 531 S.E.2d 399(2000)(error to admit officer's testimony recounting statement of victim of similar transaction where requirements of the exception for statements within the res gestae were not met).

In the case at bar, the officer's testimony was admitted under the res gestae exception.OCGA § 24-3-3 states that "[d]eclarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae."A trial court's determination that evidence is admissible as part of the res gestae will not be disturbed unless clearly erroneous.Patel v. State,278 Ga. 403(2), 603 S.E.2d 237(2004).A victim's statement made within minutes of a crime and to an officer responding to his call for help is admissible under the res gestae exception.Spear v. State,259 Ga.App. 803(2), 578 S.E.2d 504(2003).Accordingly, it cannot be said the trial court was clearly erroneous in admitting the testimony in question. ⁷

The second officer's testimony that the California robbery victim had picked appellant from a lineup prompted a hearsay objection from defense counsel because the testifying officer had not attended the lineup identification.Assuming without deciding it was error to fail to sustain the hearsay objection, the error was rendered harmless due to the fact the hearsay identification was cumulative of the certified copy of the adjudication adverse to appellant on the robbery charge.SeeGay v. State,279 Ga. 180, 182, 611 S.E.2d 31(2005).

(b).The State also called as a witness a California deputy sheriff who testified appellant had been arrested and charged with possession of cocaine with intent to distribute in May 1998 when he was a passenger in an automobile in which rock cocaine was found under the passenger seat.The trial court admitted the testimony as tending to show appellant's motive for committing the crimes for which he was being tried, i.e., his need to acquire funds to become involved in the illegal drug trade in Adel."While motive is not an essential element in the proof of the crime of murder, the motive and evidence which is relevant to an issue in a case is not rendered inadmissible by the fact that it incidentally puts the defendant's character in issue.[Cit.]."Morgan v. State,276 Ga. 72(6), 575 S.E.2d 468(2003).Consequently, the trial court did not err in permitting the testimony.

(c) Lastly, appellant complains of the admission of a certified copy of his 1997 California conviction for possession of a stolen automobile.The car's owner testified her vehicle had been taken from the parking lot near her office workplace while she was at work.The State presented this evidence as similar transaction evidence inasmuch as the vehicle owned by the victim in the case at bar was taken from the parking lot of her workplace.However, the State did not establish that appellant had taken the California car, only that he was found driving it several hours...