Moss v. State

• Decision Date: 25 March 2002
• Docket Number: No. S01A1217, No. S01A1218.
• Citation: Moss v. State, 561 S.E.2d 382, 275 Ga. 96 (Ga. 2002)
• Parties: MOSS v. The STATE (Two Cases).
• Court: Georgia Supreme Court

561 S.E.2d 382

275 Ga. 96

MOSS v. The STATE (Two Cases).

Nos. S01A1217, S01A1218.

Supreme Court of Georgia.

March 25, 2002.

Reconsideration Denied April 11, 2002.

Derek H. Jones, Decatur, for appellant (case no. S01A1217).

Lee W. Fitzpatrick, Canton, for appellant (case no. S01A1218).

Patrick H. Head, Dist. Atty., Dana J. Norman, Amy H. McChesney, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Ruth M. Bebko, Asst. Atty. Gen., for appellee. SEARS, Presiding Justice.

Dwayne Moss and Scott Moss, the appellants in these two cases, were jointly indicted and tried for the malice murder and felony murder of Zannie Mae Dunn and for the burglary of Dunn's apartment. Dwayne pled guilty to theft by receiving stolen property as a lesser included offense of the burglary charge, and was convicted of the felony murder of Dunn. The trial court sentenced Dwayne as a recidivist under OCGA § 17-10-7, and imposed a sentence of life without parole. Scott Moss was convicted of malice murder, felony murder, burglary, and a controlled substance violation. As a recidivist, Scott received three consecutive sentences— life without parole for malice murder, twenty years in prison for burglary, and thirty years in prison for the controlled substance offense.¹ On appeal, Dwayne and Scott raise numerous issues. For the reasons that follow, we conclude that all but one are without merit and that, as for that one issue, Dwayne and Scott are procedurally barred from raising it. Accordingly, we affirm Dwayne's and Scott's convictions.

1. Viewing the evidence in the light most favorable to the verdict, we conclude that the evidence would have authorized a rational trier of fact to find beyond a reasonable doubt that Scott Moss lived directly below the victim's apartment; that Scott and Dwayne Moss burglarized the victim's apartment on July 31, 1997, in order to obtain items to pawn so that they could obtain money to purchase crack cocaine; and that on November 12, 1997, Scott and Dwayne Moss killed the victim. We conclude that the evidence is sufficient to support Dwayne's conviction of felony murder and Scott's convictions of malice murder, burglary, and possession of cocaine.

2. Dwayne contends that the trial court erred in denying his motion to sever his trial from that of his brother.

Dwayne had the "`burden of making a clear showing of prejudice and a denial of due process in the absence of severance.' "² In determining whether to grant a severance, a trial court should consider

whether the number of defendants will create confusion of the evidence and the law applicable to each individual defendant, whether there is a danger that evidence admissible against one defendant will be considered against another despite the cautionary instructions of the court, and whether the defenses of the defendants are antagonistic to each other or each other's rights.³

The trial court has discretion in determining whether a severance is necessary and that determination will not be set aside unless there is an abuse of that discretion.⁴

Dwayne contends that his trial should have been severed from Scott's trial because there was a danger that the jury would consider Scott's statement to the police on November 25, 1997, against Dwayne despite the trial court's cautionary instruction not to do so. In that statement, Scott, who did not testify, stated that on November 12, 1997, Dwayne came to Scott's apartment about 7:30 to 8:00 p.m., and that Dwayne went in Scott's bathroom and stayed there for a while. Dwayne contends that the introduction of Scott's statement violated Bruton v. United States⁵ and required the severance of his trial. We disagree.

Under the Confrontation Clause of the Sixth Amendment, a criminal defendant has the right to confront witnesses against him and to cross-examine them.⁶ Generally, when a jury is instructed that certain testimony or evidence may only be considered against a co-defendant, the jury is presumed to follow the court's instruction and the testimony or evidence is not "considered to be... `against' [the] defendant."⁷ In Bruton, however, the Supreme Court "recognized a narrow exception to this principle,"⁸ by holding that when a facially, "powerfully incriminating" statement of a non-testifying co-defendant is presented to the jury, the risk is so great the jury will ignore the limiting instruction and consider the co-defendant's confession against the defendant that the general rule cannot be followed.⁹ The Court thus held that the introduction of such statements, even with a limiting instruction, violates the defendant's right of confrontation.¹⁰

In contrast to cases involving "powerfully incriminating" statements of a co-defendant, the Supreme Court in Richardson stated that when a co-defendant's statement does not directly incriminate the defendant and the jury is required to draw inferences to connect the statement to the defendant, "it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence."¹¹

In accordance with the latter principle, this Court and others have held that Bruton only excludes statements by a non-testifying co-defendant that directly inculpate the defendant, and that Bruton is not violated if a co-defendant's statement does not incriminate the defendant on its face and only becomes incriminating when linked with other evidence introduced at trial.¹² For example, in Thomas v. State, Thomas's co-defendant gave a statement in which he told the police that Thomas had bought a 9-millimeter gun that police found in the car in which Thomas and his co-defendant were riding at the time of their arrest on a charge unrelated to the murder prosecution. Forensic tests later showed that the 9-millimeter gun was the murder weapon. We held that because the co-defendant's statement, " standing alone, did not clearly inculpate Thomas, ... there is no Bruton error."¹³

Similarly, in the present case, Scott Moss's statement that Dwayne came to his apartment about 7:30 to 8:00 p.m. on the night of November 12 and stayed in his bathroom for a while does not, standing alone, clearly incriminate Dwayne Moss. It only became incriminating when linked with other evidence introduced at trial. Accordingly, we conclude that the introduction of Scott's statement did not violate Bruton.

Dwayne also contends that he and Scott had antagonistic defenses and that the trial court should have severed the brothers' trials for that reason. However, "[t]he mere fact that codefendants' defenses are antagonistic is not sufficient in itself to warrant the grant of a separate trial absent a showing of harm."¹⁴ "The burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process."¹⁵ In the present case, we conclude that Dwayne did not make a clear showing that any antagonism between Scott and himself was harmful to Dwayne and amounted to a denial of due process. Accordingly, we conclude that the trial court did not abuse its discretion in denying Dwayne's motion to sever.

3. Contrary to Dwayne's and Scott's contentions, we conclude that the trial court did not err in permitting the State to introduce evidence of their cocaine use, as that evidence was relevant to prove the motive for the crimes committed.¹⁶

4. We conclude that the trial court properly permitted the State to introduce evidence concerning Dwayne's plea of guilty to theft by receiving stolen property stemming from the July 31, 1997, burglary of the victim's apartment, as the evidence of the prior crime was admissible as a similar transaction.¹⁷

5. Dwayne and Scott contend that the trial court erred in permitting a police officer to testify that, in his experience, people who use cocaine "tend to pawn and burglarize and steal to support their habit" and become physically "stimulated." At trial, Dwayne and Scott objected to the testimony that cocaine users tended to "pawn and burglarize" on that ground that the testimony was "speculative," and they objected to the testimony that cocaine users become "stimulated" on the ground that the testimony was beyond the knowledge of the testifying officer. On appeal, however, Dwayne and Scott contend that such evidence improperly placed their character into evidence and did not meet the requirements for introducing evidence of habit or routine. Because Dwayne and Scott did not raise at trial the objections they now raise on appeal, we conclude that they are procedurally barred from raising these objections on appeal.¹⁸ Finally, we also conclude that even if the trial court erred in permitting the testimony in question, the error was harmless.¹⁹

6. The trial court did not err in permitting an employee of the Georgia Bureau of Investigation to testify that a hair found on the victim matched a hair sample from Dwayne Moss.²⁰ Contrary to Dwayne's contention, "hair comparison evidence is not novel and has been widely accepted in Georgia courts."²¹

7. Dwayne and Scott contend that the trial court erred in failing to grant a mistrial after it was learned during the trial that the State had taken hair samples from a close friend of the victim, but had not tested them before trial. However, because, as Dwayne and Scott conceded at trial, it would not have been surprising to find a hair of the victim's close friend on her clothing, because it was disclosed during trial that the victim's friend had given a hair sample, and because the trial court offered to have a state's expert test the hair sample to determine if there was a match, which offer Dwayne and Scott declined, we conclude that the trial court did not err in denying Dwayne's and Scott's motion for a mistrial.²²

Moreover, we disagree with Dwayne's and Scott's contention that the trial court should have granted them a...