Myers v. State
| Decision Date | 26 June 2002 |
| Docket Number | No. A02A0435.,A02A0435. |
| Citation | 256 Ga. App. 135,567 S.E.2d 742 |
| Parties | MYERS v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Page A. Pate, Atlanta, for appellant.
David J. Porter, Dist. Atty., David K. Keeton, Asst. Dist. Atty., for appellee.
A Gwinnett County jury convicted James Taber Myers and his co-defendant, William Riley Putnam, of burglary. The court sentenced Myers to seven years confinement and thirteen years probation. After his motion for new trial was denied, Myers filed the present appeal, arguing that the trial court erred in admitting hearsay testimony regarding the custodial confession of another co-defendant, Andrew Muehleman, in preventing the defense from calling Muehleman as an exculpatory witness, in admitting similar transaction evidence, and in denying Myers' motion for directed verdict. For reasons explained below, we reverse Myers' conviction and remand the case for a new trial.
On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. Paul v. State, 231 Ga.App. 528, 499 S.E.2d 914 (1998). We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, 233 Ga.App. 217(1), 504 S.E.2d 53 (1998).
So viewed, the evidence shows that Charlene Conley Smith and her husband1 returned to their apartment at approximately 8:30 p.m. on May 2, 1999, to find that the door had been forcibly opened. Smith testified that it appeared to have been "kicked in." The couple soon discovered that a shotgun had been taken from their bedroom, but that no other valuables had been removed from the apartment. The shotgun was kept in a bag which was also missing. Smith testified that after calling the police, she immediately checked the caller identification service on her telephone and saw that a call had been received from Karona Man's residence at 8:00 p.m. that night. Smith knew defendants Myers and Putnam through mutual friends, and she recalled that Myers resided at Man's home. Smith testified that Myers had visited her apartment approximately one week before the burglary occurred and that he had admired the shotgun. Smith called the number on her "caller I.D." unit and reached Myers. When she asked him about the burglary, he denied breaking into her apartment and explained that he had been at a Mexican restaurant that night.
Man testified that Myers and several other men and women in their early twenties were living at her home at the time in question. According to Man's testimony, Muehleman, her former boyfriend, lived in the house as well. Man did not testify at all about the burglary or the whereabouts of Myers and Muehleman on that night.
Investigator Clemons of the Gwinnett County Police Department began investigating the burglary approximately one week after it occurred. Clemons focused his investigation on the individuals residing in Man's home. Clemons testified that during a search of Man's home, he discovered a shotgun bag matching the description of the one taken from Smith's apartment in Muehleman's bedroom. Muehleman was subsequently arrested. Clemons interrogated Muehleman and obtained a statement implicating Myers, Muehleman, and Putnam. Based on Muehleman's confession, the police arrested Myers and Putnam.
Muehleman entered a guilty plea prior to the trial of Myers and Putnam. When the state called him as a witness at trial, Muehleman asserted his Fifth Amendment right against self-incrimination in response to certain questions. The state moved to have Muehleman declared unavailable so that his custodial statement to Investigator Clemons would be admissible under the necessity exception to the hearsay rule. After defense counsel had the opportunity to voir dire Muehleman outside the presence of the jury, the court ruled that the witness was unavailable. Next, the court ruled that Investigator Clemons could testify about Muehleman's statement after the state made a proffer of what the testimony would include. The state presented evidence outside the presence of the jury that after the burglary, Myers, Muehleman, and Putnam went to DeKalb County to confront a drug dealer and that the stolen shotgun accidentally discharged in their vehicle. The court appeared to find that Muehleman could be implicated for the crime of being in possession of stolen property in DeKalb County and was therefore unavailable to testify at all based on his Fifth Amendment privilege against self-incrimination. The court expressly found that Clemons' testimony was reliable.
Clemons then testified for the jury that Muehleman confessed that he went to Smith's apartment with Myers and Putnam to obtain a weapon that Myers had seen there; that before they left Man's home, Myers called the Smith residence to confirm that no one was home, and then the three men drove the short distance to the apartment; that Myers went to Smith's door first; that Myers tried to force entry twice but was unsuccessful; that Myers became afraid and asked to be taken to a nearby apartment complex in case Smith returned home, so Muehleman and Putnam took him there and then returned to Smith's apartment; and that Putnam actually forced entry into the apartment and retrieved the gun while Muehleman stood watch outside. A videotape of Clemons' interview with Muehleman was played for the jury later in the course of the trial.
The state also introduced evidence of a similar transaction that occurred in July 1995, when Myers purchased a firearm that had been stolen from a Gwinnett County police officer's vehicle and subsequently entered a guilty plea to theft by receiving. At the close of the state's evidence, Myers moved for a directed verdict, and the court denied the motion.
Myers' counsel attempted to recall Muehleman as a witness. Although it had declared Muehleman unavailable earlier in the trial, at this time the court instructed the witness that he would be required to testify about his involvement in the burglary, but that he would not have to testify about the events that took place afterward in DeKalb County. The court further explained that Muehleman could not assert his Fifth Amendment privilege against self-incrimination to charges he had already pled guilty to. Next, the court appointed a lawyer to advise Muehleman. After conferring with his new client, counsel announced that Muehleman would testify only about the burglary to which he pled guilty and for which Myers and Putnam were charged. However, contrary to its earlier instruction to the witness, the court ruled that because Muehleman had asserted his Fifth Amendment privilege in response to certain questions, he could not testify to anything, including his involvement in the burglary.
In order to present statements made by Muehleman during his plea colloquy that might be exculpatory for Myers, defense counsel had to call as a witness the assistant district attorney who represented the state when Muehleman entered his plea. After a transcript of the proceeding was admitted as evidence, assistant district attorney Thomas Ned Davis, Jr. read from that transcript and testified as follows:
Davis further testified that Muehleman told the court that Myers may not have known that Muehleman and Putnam were going back to rob Smith's apartment after they took him to the apartment complex down the street.
Myers testified that it was Putnam who wanted a gun for protection because he had some problems with a drug dealer; that Myers planned to ask Smith's husband, Justin, if he could borrow the shotgun; that it was Putnam's idea to steal the gun; that Myers remained in the car while the other two men attempted to kick the apartment door in; that he became "jittery" and asked the others to abandon the plan to steal the gun; that the three of them drove to a nearby apartment complex where he exited the car and told the others that he did not want to be involved in the burglary; that Muehleman and Putnam returned to pick him up fifteen minutes later; and that the two men were in possession of the Smiths' gun when they returned to Man's home.
1. First, Myers contends that the trial court erred in allowing Investigator Clemons to testify regarding Muehleman's custodial confession. The court allowed the testimony under the necessity exception to the hearsay rule after finding that Muehleman was unavailable because he asserted his Fifth Amendment privilege against self-incrimination to certain questions about the incident in DeKalb County.
OCGA § 24-3-52 provides that "[t]he confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself." The Supreme Court has expressly recognized that OCGA § 24-3-52 was designed to protect a defendant from the hearsay confession of a co-defendant who does not testify at trial. Livingston v. State, 268 Ga. 205, 211(4), 486 S.E.2d 845 (1997).
In Livingston v. State, supra, the Supreme...
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