Jordan v. State

• Decision Date: 23 September 2013
• Docket Number: No. S13A0964.,S13A0964.
• Parties: JORDAN v. The STATE.
• Court: Georgia Supreme Court

293 Ga. 619

748 S.E.2d 876

JORDAN

v.The STATE.

No. S13A0964.

Supreme Court of Georgia.

Sept. 23, 2013.

Walker L. Chandler, Fayetteville, for appellant.

Patricia B. Attaway Burton, Deputy Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Clint Christopher Malcolm, Asst. Atty. Gen., Department of Law, Paul L. Howard, Jr., Dist. Atty., Paige Reese Whitaker, Deputy Dist. Atty., David K. Getachew–Smith, Sr., Chief Asst. Dist. Atty., Fulton County District Attorney's Office, for appellee.

THOMPSON, Chief Justice.

Appellant Darius Jordan was convicted of felony murder, armed robbery, and other crimes arising out of the shooting death of James Yarbrough. ¹ He appeals from the denial of his motion for new trial, asserting the trial court erred by admitting evidence of his telephonic statements to a friend in violation of Miranda, denying his motions for mistrial, and failing to find that trial counsel provided ineffective assistance. We find no reversible error and affirm.

Viewed in the light most favorable to the verdict, the jury was authorized to find that on the evening of December 22, 2007, Yarbrough and his nephew, Kenneth Kaiser, were walking to a check cashing store to cash Yarbrough's $1500 pay check. Appellant and another male offered to give them a ride in their black Honda. Appellant, who was wearing a Santa hat, identified himself as “Whodi.” The four men drove around for several hours, talking and making various stops along the way, with Yarbrough telling the men that he had money to spend. After Yarbrough cashed his check and gave $100 to Kaiser, Kaiser heard appellant talking on his cellular phone and mentioning the $1500. Later, appellant parked the car on a street and a third individual came out of hiding with a gun. Appellant and the gunman ordered Yarbrough and Kaiser out of the car at gunpoint, rifled through their pockets, and took their money. Yarbrough, who was vocally angry about the robbery, was shot after he refused to walk away.

Using videotape from the check cashing establishment, police identified the black Honda and located its owner, Bertha Grier. At the time the vehicle was located, it was being driven by Grier's son, who called his mother to let her know police were questioning him about the crimes. Grier drove to the parking lot where police had stopped the car and told investigator Kevin Otts that on the night of the crimes she loaned the car to appellant, whom she knew as “Whodi,” and stated that he was at that time wearing a Santa hat. Grier then called appellant, placed him on speaker phone in Otts' presence, and asked appellant why police were saying her car had been involved in a murder. Appellant responded that he had picked up two men, took them to cash a check with the intent to rob them, but after one of the men “bucked,” they shot him. After giving several statements to police in which he claimed he dropped off the victims earlier in the evening, appellant admitted his involvement in the crimes.

We conclude the evidence was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crime of felony murder and the other crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

[293 Ga. 621]1. We find no error in the admission of appellant's statements to Grier made without the benefit of warnings as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant's statements were made during a telephone conversation initiated by Grier at her insistence because she wanted to know why police thought her car had been involved in a murder and because she did not want her son, who was driving the car at the time of the stop, to be wrongfully implicated. Otts did not ask Grier to call appellant, but in fact, discouraged her from making the call because he feared she would alert appellant that police were looking for him. In addition, Otts did not ask any questions during the conversation; nor did he instruct Grier to make any specific inquiries. Absent any evidence that Grier was acting as an agent of law enforcement or that appellant was restrained or in custody at the time he made the challenged statements, Miranda does not apply. See Colorado v. Connelly, 479 U.S. 157, 170, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (“The sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion”); Sewell v. State, 283 Ga. 558, 560–561, 662 S.E.2d 537 (2008)( Miranda warnings not necessary unless reasonable person in suspect's situation would perceive he was in custody); Cook v. State, 270 Ga. 820, 826, 514 S.E.2d 657 (1999)( Miranda not implicated when accused makes incriminating statements to person other than law enforcement, such as a family member or close friend); Harper v. State, 249 Ga. 519(4)(b), 292 S.E.2d 389 (1982) (witness not agent of law enforcement where she visited defendant of her own initiative and officers did not request that she seek specific information). Appellant has failed to present any evidence that his statements were involuntarily made or were induced by hope of benefit. See OCGA § 24–3–50.

2. Appellant contends the trial court erred by denying his two motions for mistrial.

(a) The first motion for mistrial was made after investigator Otts testified on re-direct examination that early in his interrogation appellant “was playing games back and forth, didn't want to give us the full truth even though we knew so much of the truth” and that appellant kept giving them “the run-around.” Appellant contends this testimony went to the ultimate issue in the case, which he argues was whether he was being truthful about his innocence, and therefore, it was inadmissible opinion evidence. See OCGA § 24–9–65.²

“Ordinarily, a witness may not express his opinion as to an ultimate fact, because to do so would invade the province of the jury. [Cit.]” Fordham v. State, 254 Ga. 59(4), 325 S.E.2d 755 (1985). Here, however, even assuming this ground for objection has been preserved for review, we cannot agree with appellant that Otts' testimony constitutes an impermissible opinion regarding the ultimate issue. The ultimate issue in the case was whether appellant was guilty of the crimes charged. Otts was not asked for and did not give his opinion about whether appellant committed the crimes. Instead, the challenged testimony describes the circumstances of the custodial interview and explains why, based on Otts' own observations, the interview lasted several hours. The fact that appellant initially denied any involvement in the crimes and was not forthcoming in his statements to police, made evident by his subsequent admissions, was relevant to the issue of his guilt or innocence and was properly presented to the jury for its consideration. See Harris v. State, 279 Ga. 304(1), 612 S.E.2d 789 (2005) (lay witness may relate opinion as to the existence of any fact so long as it is based on that person's own experiences and observations and matter referred to is within scope of average juror's knowledge). Moreover, the trial court gave a curative instruction reminding jurors they were the ultimate judges of all facts and it was their duty to determine the credibility of all witnesses. Given the nature of Otts' statements, the context in which they were made, and the curative instruction given by the trial court, we find no error in the trial court's denial of the motion for mistrial on this ground.

Nor can we agree with appellant's claim that Otts' testimony improperly interjected his character in issue. “Whether to admit evidence is a matter that rests in the sound discretion of the trial court.” Price v. State, 269 Ga. 373, 374(2), 497 S.E.2d 797 (1998). The State offered Otts' testimony on re-direct in response to a defense implication that appellant had been subjected to an overly burdensome interrogation. It was material to explain the circumstances of the interrogation and it was not rendered inadmissible merely because it may have incidentally placed appellant's character in issue. See id.;Borders v. State, 285 Ga.App. 337(2), 646 S.E.2d 319 (2007); Peeples v. State, 234 Ga.App. 454, 458(4), 507 S.E.2d 197 (1998). Accordingly, the trial court did not abuse its discretion in admitting the testimony or denying the motion for mistrial.

(b) The second motion was made during the State's closing argument when, after reviewing the evidence presented to the jury, the prosecutor commented that appellant's actions demonstrate he intended to commit armed robbery and “the State believes the evidence has proven beyond a reasonable doubt that [the] armed robbery....” Appellant interrupted the prosecutor and moved for a mistrial on the ground that the comment improperly conveyed the prosecutor's personal belief that appellant was guilty of armed robbery. See OCGA § 17–8–75. The trial court...