McIntyre v. State

• Decision Date: 06 November 1995
• Docket Number: No. S95A1096,S95A1096
• Citation: 463 S.E.2d 476,266 Ga. 7
• Parties: McINTYRE v. The STATE.
• Court: Georgia Supreme Court

Page 476

463 S.E.2d 476

266 Ga. 7

McINTYRE v. The STATE.

No. S95A1096.

Supreme Court of Georgia.

Nov. 6, 1995.

Reconsideration Denied Dec. 4, 1995.

J.M. Raffauf, Decatur, for McIntyre.

David J. McDade, Dist. Atty., Douglasville, Michael J. Bowers, Atty. Gen., Department of Law, Atlanta, Susan V. Boleyn, Senior Asst. Atty. Gen., Department of Law, Atlanta, Paige Reese Whitaker, Asst. Atty. Gen., Department of Law, Atlanta, for State.

CARLEY, Justice.

Robert McIntyre was tried before a jury and found guilty of murder. He appeals from the judgment of conviction and life sentence entered by the trial court on the jury's guilty verdict. ¹

1. When the evidence is construed most strongly in favor of the State and against McIntyre, the jury was authorized to find the following: McIntyre became a member of a satanic group of which Terry Chapman was the leader. Malisa Earnest and the victim were runaways who were given shelter by Chapman. The victim rejected McIntyre's sexual advances. Subsequently, McIntyre, Chapman and Earnest discussed killing the victim and agreed to strangle her with the lace from a boot. Earnest put the lace around the victim's neck and, when she began to struggle, Chapman took the lace and tightened it. McIntyre then took the lace and, placing his knee to the victim's back, tightened it around her neck. McIntyre and Chapman tied a double knot in the lace and sat on either side of the victim's body. Holding hands, they recited a satanic chant. After wrapping the body in a blanket, they buried it in the nearby woods. The next day, McIntyre took his mother's van and he, along with Chapman and Earnest, fled the state. McIntyre's parents reported that he and the van were missing. An officer in Louisiana stopped the van after determining that it was reported as stolen and the occupants were reported as missing juveniles. The Georgia authorities were contacted and they requested that McIntyre and Chapman be detained as runaways in possession of a stolen vehicle. After receiving Miranda warnings, McIntyre and Chapman were placed in a cell. Although Earnest was not detained, she was, at her request, allowed to stay in a cell near that which housed McIntyre and Chapman. During the night, Earnest volunteered to her cell-mate that she and McIntyre and Chapman had committed a murder. In the hearing of Earnest's cell-mate, the three then openly discussed the murder and the burial of the victim's body. The next morning, Earnest left for Georgia by bus and McIntyre and Chapman were taken before the juvenile court where they gave their consent to be returned to Georgia. Meanwhile, Earnest's cell-mate reported to the Louisiana authorities the admissions which she heard regarding the murder. The Georgia authorities were contacted and the victim's body was discovered. When McIntyre and Chapman arrived in Georgia, they were taken into custody. McIntyre was advised of the murder charge and given his Miranda warnings. He made no statement to the officers but, when his mother arrived, he made a statement to her in the presence of the sheriff. In this statement, McIntyre admitted to his mother that he "tied the knot off." Chapman and Earnest were tried and convicted. Chapman v. State, 259 Ga. 592, 385 S.E.2d 661 (1989); Earnest v. State, 262 Ga. 494, 422 S.E.2d 188 (1992). Chapman testified for the State and his testimony was corroborated in several material respects. McIntyre presented no evidence in his defense.

This evidence was sufficient to authorize a rational trier of fact to find proof of McIntyre's guilt of murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. During the trial, Judge Robert Noland initially presided, but had to leave during the State's presentation of evidence in order to attend the funeral of his infant grandson. Judge Robert James replaced Judge Noland over McIntyre's objection. McIntyre contends that the substitution of judges constituted a violation of his Sixth and Fourteenth Amendment rights. We assume, for purposes of this appeal only, that these rights are implicated by a midtrial substitution of judges. But see People v. Espinoza, 3 Cal.4th 806, 12 Cal.Rptr.2d 682, 695, 838 P.2d 204 (1992).

It is the general rule that any error in the substitution of judges is subject to harmless error analysis. Jimenez v. State, 838 S.W.2d 661, 666 (Tex.App.1992); United States v. Boswell, 565 F.2d 1338, 1342 (5th Cir.1978); Annot., 73 A.L.R.Fed. 833, 839, § 4; 75 Am.Jur.2d 444, Trial, § 222. The dissent has cited no authority for the proposition that certain substitutions of judges are "structural defects" which require automatic reversal. Indeed, many of the cases cited by the dissent have expressly recognized the possibility of harmless error. One of those cases was decided since Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) and dealt with a midtrial substitution of judges. Hood v. State, 334 Md. 52, 637 A.2d 1208, 1213, 1214 (1994). Although Hood held that the State must rebut a presumption of prejudice or demonstrate beyond a reasonable doubt that the error was harmless, it also recognized "that a number of courts have held to the contrary, and have required that a defendant demonstrate actual prejudice in order to obtain a new trial...." Hood v. State, supra, 637 A.2d at 1213.

Similarly, in Georgia, the temporary absence of a trial judge without suspension of the trial is not a basis for reversal unless the complaining party shows prejudice resulting from the absence. Koza v. State, 158 Ga.App. 709, 710(4), 282 S.E.2d 131 (1981). McIntyre has not shown that he was harmed by the substitution, and therefore, under the circumstances of this case, the procedure followed in the trial court does not require reversal of the judgment of conviction. Jimenez v. State, supra at 666.

3. McIntyre urges that the statement that he made to his mother should have been suppressed as the product of an illegal arrest and impermissible interrogation. However, once the officer in Louisiana determined that the van was reported as stolen and its occupants reported as runaways, he had probable cause to stop the van and arrest its occupants. After his lawful arrest in Louisiana, McIntyre gave valid consent to his return to Georgia in accordance with Article VI of OCGA § 39-3-2. By the time that McIntyre had returned to Georgia, the authorities had discovered the body of the victim and had probable cause to arrest him for murder. After being given his Miranda warnings, McIntyre made no incriminating statement to the sheriff. He did, however, make a spontaneous incriminating statement to his mother in the sheriff's presence. Arizona v. Mauro, 481 U.S. 520, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987). Under these circumstances, McIntyre's spontaneous statement to his mother was correctly admitted into evidence.

4. McIntyre requested a charge on impeachment "[b]y proof that the witness has been convicted of a crime of moral turpitude." However, the trial court refused to give this requested charge, on the ground that no certified copy of the conviction of any of the State's witnesses had been introduced by McIntyre.

The requirement that a prior conviction be proved by a certified copy is an application of the "best evidence" rule and an objection to proof of a prior conviction by secondary evidence may be waived. Moret v. State, 246 Ga. 5, 6(3), 268 S.E.2d 635 (1980). See also O'Toole v. State, 258 Ga. 614, 616(4), fn. 2, 373 S.E.2d 12 (1988); Williams v. State, 251 Ga. 749, 799(12), 312 S.E.2d 40 (1983). Thus, in the absence of a "best evidence" objection, "a witness' answer to the effect that he or she has been convicted of a crime is admissible to prove the crime, [cit.]." Williams, supra at 799(12), 312 S.E.2d 40.

On direct examination, Chapman admitted his conviction for the murder and there was no objection raised by McIntyre. On cross-examination, Chapman again admitted his conviction for the murder and there was no objection raised by the State. Murder is a crime of moral turpitude. It follows that the "best evidence" objection was waived and that Chapman's prior conviction of a crime of moral turpitude was proved by secondary evidence. Compare O'Toole, supra (no secondary evidence admitted without objection); Mincey v. State, 257 Ga. 500, 501(1), 360 S.E.2d 578 (1987) (no secondary evidence admitted without objection); Kimbrough v. State, 254 Ga. 504, 505(2), 330 S.E.2d 875 (1985) (no secondary evidence admitted without objection); Williams, supra (objection to secondary evidence raised); Ledesma v. State, 251 Ga. 885, 888(4), 311 S.E.2d 427 (1984) (objection to secondary evidence erroneously overruled); Timberlake v. State, 246 Ga. 488, 499(6), 271 S.E.2d 792 (1980) (objection to secondary evidence raised). Since Chapman's prior conviction of a crime of moral turpitude was proved by secondary evidence admitted without objection, it was error to refuse to give McIntyre's requested charge on impeachment.

However, harm as well as error must be shown for reversal. Wood v. State, 243 Ga. 273, 274(5), 253 S.E.2d 751 (1979). The failure to give a requested charge which is authorized by the evidence can be harmless error. Duvall v. State, 259 Ga. 801, 802(4), 387 S.E.2d 880 (1990). Even discounting Chapman's testimony, there was overwhelming evidence of McIntyre's guilt. Burnette v. State, 165 Ga.App. 768(1), 302 S.E.2d 621 (1983). That evidence consists of the admissions of McIntyre, Chapman and Earnest which were heard by Earnest's cellmate, and McIntyre's admission to his mother. See Meeker v. State, 249 Ga. 780, 782(5), 294 S.E.2d 479 (1982). This evidence was "unrefuted by any other evidence to the contrary." White v. State, 163 Ga.App. 179, 182(3), 292 S.E.2d 875 (1982). Since the evidence of McIntyre's guilt is overwhelming even when Chapman's testimony is discounted, it is highly probable that the erroneous...