Miller v. State

• Citation: 391 S.E.2d 642,260 Ga. 191
• Decision Date: 24 May 1990
• Docket Number: No. S90A0225,S90A0225
• Parties: MILLER v. STATE.
• Court: Georgia Supreme Court

Page 642

391 S.E.2d 642

260 Ga. 191

MILLER v. STATE.

No. S90A0225.

Supreme Court of Georgia.

May 24, 1990.

Leigh B. Finlayson, Atlanta, for Miller.

Lewis R. Slaton, Dist. Atty., Michael J. Bowers, Atty. Gen., Richard E. Hicks, Asst. Dist. Atty., Richard C. Litwin, Asst. Atty. Gen., Atlanta, for the State.

BELL, Justice.

Kelly Miller appeals his conviction for the felony murder and armed robbery of Robert Goodwin. ¹ Miller contends, inter alia, that the evidence is insufficient to support the verdict; that the trial court failed to conduct a fair and impartial trial; that the trial court erred by admitting inadmissible evidence and by limiting the scope of Miller's cross-examination; and that the state improperly placed his character into evidence on two occasions. We affirm.

On April 2, 1988, Robert Goodwin registered at the OMNI Hotel. He was in Atlanta on vacation. On April 3, 1988, Goodwin, who was wearing a lot of jewelry, entered the American Cafe, a restaurant located in the OMNI Hotel. He sat and ate dinner with Miller. Terrance Brown, the nine-year-old son of Karen Brown, Miller's fiance, was also present at Miller's table. The two men subsequently left the restaurant at separate times. However, Miller returned to the restaurant several times during the evening. Miller made a final visit to the American Cafe as it was about to close at 11:00 p.m. Miller had a garment bag folded over his arm, and asked the bartender whether there were any cameras in the hallways and exits. He also asked about alternatives to using the hotel elevator.

Although Miller was then living with Karen and Terrance Brown in Atlanta, Miller told several people at the hotel that Miller was visiting his son--Terrance Brown--from out of town.

When Miller left the hotel, he took Terrance Brown to the apartment they shared with Karen Brown. Karen Brown arrived at the apartment around midnight on April 3, 1989. Miller was not at the apartment, but he returned a short while after Karen Brown's arrival.

During the night Miller vacated the apartment and left Karen Brown a note stating he had moved to his sister's apartment. On the morning of April 4, 1988, Karen Brown went to Miller's sister's apartment. Miller gave her several items of jewelry and instructed her to pawn the jewelry at two different pawn shops. Karen Brown followed Miller's instructions. The jewelry turned out to be jewelry stolen from Goodwin.

On April 4 a hotel maid found Goodwin's body in his room. Goodwin had suffered multiple stab wounds to his chest and back, and had died as a result. Fingerprints taken at the crime scene were identified as belonging to Miller. One of Miller's shirts was found in Goodwin's room. The police also found Miller's keys inside the pocket of a pair of Goodwin's pants. The pants were stained with Goodwin's blood. Moreover, through saliva testing, it was determined that some cigarette butts found in Goodwin's room had been smoked by Miller.

Following Miller's arrest, Miller gave a statement to the police. The statement was introduced at trial after a Jackson-Denno hearing. In his statement, Miller admitted meeting Goodwin at the American Cafe. He also stated he and Terrance Brown went to Goodwin's room so that Terrance Brown could use the bathroom. He added that he and Terrance left Goodwin's room after about 15 minutes. He denied killing Goodwin. Miller did not testify at trial.

1. In his first enumeration of error Miller argues that the evidence was insufficient to support his conviction. We disagree. Reviewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found Miller guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

2. In his fourth enumeration of error Miller contends that the trial court abused its discretion by allowing J.J. James, the investigating officer, to testify to a statement made to her by an individual who worked at a nightclub and at the American Cafe at the OMNI. This individual had seen Miller with Goodwin at the American Cafe and later saw Miller at the nightclub. The individual obtained a name and address for Miller. Officer James testified that the individual gave her the name of Shawn Miller and the address. When Officer James went to the address, the officer discovered that Miller's sister lived there. Officer James testified that Miller's sister said she did not know a Shawn Miller, but did have a brother named Kelly Miller.

Miller objected to Officer James' testimony, but the court admitted it under OCGA § 24-3-2 to explain the conduct of the officer. We conclude the trial court erred, as the conduct of Officer James was not relevant to any issue in the trial. Momon v. State, 249 Ga. 865, 867, 294 S.E.2d 482 (1982). However, in view of the strength of the evidence against Miller, we conclude that the error was harmless. Johnson v. State, 238 Ga. 59, 230 S.E.2d 869 (1976).

3. In his fifth enumeration of error Miller contends that the trial court erred by allowing Officer James to identify a hotel-room checklist prepared by an OMNI employee. Miller contends that the officer's identification of the document amounted to inadmissible hearsay testimony.

Even assuming that the admission of the testimony was error, the error was harmless, as the employee who prepared the document testified later in the trial regarding the identity and contents of the document. Faircloth v. State, 253 Ga. 67, 69(3), 316 S.E.2d 457 (1984); Glass v. State, 235 Ga. 17, 19(2), 218 S.E.2d 776 (1975).

4. In his sixth enumeration of error Miller contends that the trial court erred by allowing Officer James to testify, over Miller's hearsay objection, that three OMNI employees identified a photograph of Miller as the man they saw with Robert Goodwin.

The state argues that this testimony was admissible under § 24-3-2 to explain the officer's conduct. We pretermit a decision whether this testimony was admissible under § 24-3-2, but see Momon, supra, 249 Ga. 865, 294 S.E.2d 482, as Officer James' testimony was admissible as prior consistent statements of the three OMNI employees, all of whom identified Miller at trial as the man they saw with Goodwin and also testified to their photo-identification of Miller. Jarrells v. State, 258 Ga. 833, 837(14), 375 S.E.2d 842 (1989); Cuzzort v. State, 254 Ga. 745, 334 S.E.2d 661 (1985).

5. In his seventh enumeration of error Miller contends that the trial court erred by admitting his statement into evidence.

At the Jackson-Denno hearing the investigating officer testified she read Miller his Miranda warnings. She asked him if he understood his rights, and Miller responded that he did. She then asked Miller to sign a form entitled, "Waiver of Counsel by Defendant in Custody." The form provided that "[a]fter having my constitutional rights explained to me, I freely and voluntarily waive my right to an attorney." Before signing, Miller asked if by signing the form he waived his right to an attorney. The officer responded "no" to Miller's question. Miller signed the form and then gave his statement to the police.

Miller contends that his question to the officer indicated that he did not understand the nature of his right to consult with an attorney, and that the trial court, for this reason, should not have admitted his statement into evidence.

We need not address whether the trial court erred in admitting the statement, because, even assuming the court erred, the error was harmless. Miller's statement merely provided some evidence of Miller's presence in Goodwin's room, whereas the state presented an overwhelming amount of other evidence that placed Miller in the room near the time of the murder. The cumulative nature of Miller's statement renders any error in its admission harmless. McLendon v. State, 259 Ga. 778, 387 S.E.2d 133 (1990); Foster v. State, 258 Ga. 736, 742(8)(b), 374 S.E.2d 188 (1988).

6. In his eighth enumeration of error Miller contends the trial court erred in refusing to permit him to question Officer James concerning a statement made to the officer by a Ms. Seay. The hearsay statement concerned Goodwin's social contacts during a visit to Atlanta about one year before his death. At trial Miller alleged the hearsay statement was admissible for the purpose of impeaching the testimony of Officer James. The court sustained the state's objection that the evidence was irrelevant.

On appeal, Miller relies on the following language from Seaboard C.L.R. Co. v. Smalley, 127 Ga.App. 652, 654(1), 194 S.E.2d 612 (1972), to argue that hearsay evidence is always admissible for the purpose of impeachment: "Hearsay evidence is admissible for impeachment, though inadmissible for other purposes." However, in McAllister v. State, 258 Ga. 795, 798(6) (fn. 2), 375 S.E.2d 36 (1989), we limited the foregoing language in Smalley by stating: "While a prior inconsistent statement made by a witness may be used for impeachment, there is no general rule of law which allows all hearsay evidence to be used for impeachment." Id. Thus, the hearsay evidence in question was not admissible merely because it was offered for impeachment purposes. Moreover, we find no exception to the hearsay rule that would have permitted this testimony.

Finally, where a trial court determines that proposed cross-examination would induce irrelevant testimony, the court does not abuse its discretion in denying such questioning. Lumpkin v. State, 255 Ga. 363, 365(5), 338 S.E.2d 431 (1986). Here, we find that the trial court did not abuse its discretion by disallowing testimony regarding statements made about a visit that occurred one year before Goodwin's death.

For the foregoing reasons, we find Miller's eighth enumeration of error to be without merit.

7. In his ninth enumeration of error Miller contends that the trial court erred in excluding Dr. Keith Norton's testimony regarding...