Livingston v. State
| Citation | 268 Ga. 205,486 S.E.2d 845 |
| Decision Date | 14 July 1997 |
| Docket Number | No. S97A0353,S97A0353 |
| Parties | , 97 FCDR 2629 LIVINGSTON v. The STATE. |
| Court | Supreme Court of Georgia |
Michael Mears, Multicounty Public Defender, Atlanta, Harold M. Walker, Jr., Valpey & Walker, Gainesville, and James C. Bonner, Jr., Georgia Indigent Defense Council, Atlanta, for Livingston.
Angelica M. Woo, Asst. Atty. Gen., Department of Law, Atlanta and Lee Darragh, Asst. Dist. Atty., Gainesville, for the State.
After hearing evidence concerning the circumstances surrounding the death of Keith Evans, a jury concluded that appellant Howard Kelley Livingston was guilty of malice murder, kidnaping with bodily injury, motor vehicle theft by taking, arson, concealing a death, possession of a firearm during the commission of a felony, and influencing a witness. 1
1. The State prosecuted separately three individuals, one of them being appellant, for the crimes. Appellant's brother-in-law, Tommy Lee Waldrip was found guilty and sentenced to death in October 1994. Waldrip v. State, 267 Ga. 739, 482 S.E.2d 299 (1997). Tommy's son, John Mark Waldrip, was convicted and sentenced to multiple life terms of imprisonment in May 1995. Waldrip v. State, 266 Ga. 874, 471 S.E.2d 857 (1996). After they were convicted and sentenced and while their motions for new trial were pending, the Waldrips were called by the State to testify against appellant Livingston. In a proceeding outside the presence of the jury, each Waldrip invoked his privilege against self-incrimination and declined to testify. The trial court then signed an order on the State's motion pursuant to OCGA § 24-9-28, granting each Waldrip immunity from having his testimony used against him. Each man continued to remain silent despite being threatened with a contempt citation, and each was held in contempt and returned to his jail cell. In lieu of testimony from the Waldrips, the State presented to the jury evidence of the Waldrips' statements through the testimony of law enforcement authorities. The trial court deemed some of the statements admissible under the co-conspirator exception to the hearsay rule (OCGA § 24-3-5), and the remainder admissible under the "necessity" exception to the hearsay rule. OCGA § 24-3-1(b). Appellant contends that the evidence against him, excluding the hearsay testimony recounting the Waldrips' statements which he contends was erroneously admitted, is insufficient to authorize a rational trier of fact to find he is guilty beyond a reasonable doubt of the offenses for which he was convicted.
The victim's burning truck was found just off a Dawson County highway in the early morning hours of April 14, 1991, the day before the victim was scheduled to give eyewitness testimony in the re-trial of an armed robbery charge pending against John Mark Waldrip. The victim's body, shot and bludgeoned, was discovered in a shallow grave in Gilmer County four days later. The State established that the victim had last been seen as he left his place of employment at 10:30 p.m. on April 13, and that his unoccupied burning truck was found approximately 100 minutes later near the Dawson/Gilmer county line. Near the burning truck, authorities also found a current automobile insurance card evidencing coverage for a 1988 Ford Tempo, which card was issued to Linda Waldrip, the wife of Tommy Waldrip, the mother of John Mark, and appellant's half-sister.
Armed with the insurance card issued for the Waldrip automobile and with the knowledge that the missing victim was scheduled to testify the next day against John Mark, law enforcement officers visited the Waldrips' apartment. Tommy told authorities he had left his Dawsonville home around 9 p.m. to take appellant to Gainesville and had returned home at 11 p.m. 2 Appellant's mother confirmed that Tommy had left with appellant from her Dawsonville home between 9:15 and 9:30 p.m. John Mark told investigators that he had returned home at 10:45 p.m. after spending the evening with friends at a pool hall. 3 When John Mark's alibi was not corroborated and it was learned that he had contacted another witness scheduled to identify John Mark as the armed robber at trial, John Mark was arrested for violating a condition of his release on bond. Tommy was also arrested. On April 18, Tommy told a GBI agent that he, John Mark, and appellant had been together in the Ford Tempo when they saw the victim in his truck at 10:45 p.m.; that John Mark exited the car after which Tommy and appellant pursued the victim and ran him off the road; that Tommy shot the victim twice with a 20-gauge shotgun and struck him about 25 times with a blackjack; and that appellant hit the victim several times. According to Tommy, the duo put the victim back in his truck, drove it and the Ford Tempo to Gilmer County where they buried the body, and then drove the vehicles to another site where they burned the truck and the clothes they were wearing. After driving appellant home to Gainesville, Tommy returned to his Dawsonville apartment. 4 After giving this statement, Tommy then led law enforcement personnel to the gravesite, and the victim's body was recovered. That same day, appellant told law enforcement authorities that Tommy had given him a ride to his mother's house in Dawsonville and back to Gainesville. He told the officers, "I got a ride from the wrong person."
That evening, the GBI agent visited John Mark, who was incarcerated in the Forsyth County Detention Center. John Mark informed the agent that he did not wish to make a statement until he spoke with his father and his four-year-old daughter. When John Mark called his daughter, in the presence of the GBI agent he told the person who answered the phone that it was over, that the victim's body had been found. 5 The agent then took John Mark to the Dawson County Detention Center where Tommy was being held. After meeting with his father, John Mark told the agent that he and his father had been driving appellant from Dawsonville to Gainesville when his father told John Mark to get out of the car. John Mark stated that he did not see the victim. 6
The next day (April 19), the GBI agent revisited Tommy, who gave another statement in which he said that he had stopped the Ford Tempo in the middle of the road, thereby forcing the victim to stop his truck. John Mark, armed with the shotgun, had approached the victim's truck to speak with him, and had shot him when he saw him reach for something. John Mark had then driven the victim's truck, with his father and appellant following in the Ford Tempo, to a site where he shot the victim again and hit him with a wooden stick. In this statement, Tommy stated that appellant had thrown the victim on the ground. 7 The GBI agent then went to see John Mark, and played for him a tape recording of the interview he had just conducted with Tommy. John Mark said, "If my daddy says I shot [the victim], then I guess I did." 8
The State also presented evidence establishing that during the evening the victim disappeared, John Mark, in the presence of Tommy, had telephoned the other witness against him in the armed robbery trial to discourage him from testifying. There was evidence that, during the afternoon of the day the victim disappeared, appellant had been with Tommy and John Mark when Tommy purchased a used car and returned it shortly thereafter due to mechanical problems, and that appellant had left his mother's Dawsonville home with Tommy after 9 p.m. that evening. Because of the distance between Dawsonville and appellant's Gainesville home, the State suggested that Tommy could not have driven appellant to Gainesville and returned in time to waylay the victim as he left his job, leading to the inference that appellant was with Tommy when he encountered the victim. The site where the victim was assaulted contained shoeprints left by three different sets of shoes, and cigarette butts of the brand, but not the type, that appellant smoked were found there. 9 Telephone records showed three phone calls were placed between the Waldrips' apartment and appellant's residence or a nearby pay phone the evening after the victim disappeared. Appellant told investigators that he got a ride "with the wrong person." Appellant's cellmate testified that, while incarcerated, appellant warned him, "You don't want to f__ with me, I'll f__ with you like we f___ that other son of a bitch up."
It is clear that the evidence which most clearly implicates appellant in the crimes for which he was convicted is the hearsay testimony of law enforcement officers repeating the co-indictees' out-of-court statements after the co-indictees refused to testify. As a result of the trial court's admission of the unsworn out-of-court statements of the non-testifying co-indictees, appellant contends he was unable to confront the witnesses against him and cross-examine them, a right secured by the Sixth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Appellant maintains that the admission of the co-indictees' hearsay statements was error because the statutory prerequisites for admission of co-conspirators' statements were not met (OCGA § 24-3-5), and the statutory prohibitions against the admission of co-conspirators' confessions was violated. See OCGA § 24-3-52. In order to determine whether the evidence was sufficient to authorize appellant's convictions, we must determine whether the hearsay testimony was properly admitted since, being "wholly without probative value [and] ... hav[ing] no weight in establishing the facts necessary to convict the defendant ...," erroneously-admitted hearsay may not be considered in reviewing the sufficiency of the evidence. Duke v. State, 205 Ga. 106 (hdnte. 1), 52 S.E.2d 455 (1949); Johnson v. State, 214 Ga.App. 77(2), 447 S.E.2d 74 (1994); Calhoun v. State, 213...
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...due to lack of authentication may be considered. See Hall v. State, 244 Ga. 86(5), 259 S.E.2d 41 (1979). CompareLivingston v. State, 268 Ga. 205 (1), 486 S.E.2d 845 (1997). Inasmuch as the videotape may be considered when examining the sufficiency of the evidence and it provided sufficient ......
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