Patterson v. State

• Decision Date: 29 June 2009
• Docket Number: No. S09A0016.,S09A0016.
• Parties: PATTERSON v. The STATE.
• Court: Georgia Supreme Court

679 S.E.2d 716

285 Ga. 597

PATTERSON v. The STATE.

No. S09A0016.

Supreme Court of Georgia.

June 29, 2009.

James D. Lamb, Columbus, for Appellant.

J. Gray Conger, Dist. Atty., Wesley A. Lambertus, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Sara K. Sahni, Asst. Atty. Gen., for Appellee.

BENHAM, Justice.

Appellant Phillip Earl Patterson was convicted in 1987 of the malice murder and armed robbery of Bruce Keeter, an assistant manager of a fast-food restaurant in Columbus, Georgia, and the theft by taking of the victim's automobile.¹

1. The State presented evidence that the victim died as a result of a bullet that struck him behind the right ear, traversed his brain, and lodged in his left temple. He was killed between 1:00 a.m. and 5:00 a.m. on September 14, 1987, and $373 and a zipped bank bag were missing from the restaurant. Several miles away from the restaurant, the victim's car was found with a broken passenger window and bloodstains. Timothy Morgan and Ronald Kinsman, former roommates and appellant's co-indictees, testified for the State. Morgan, who was awaiting trial and had been assured the death penalty would not be sought against him if he testified against appellant, testified that appellant owed Kinsman money and Kinsman demanded payment the week before the victim was killed. Shortly after the demand for payment, the trio broke into a home where appellant found a pistol. On the night of the murder, appellant arrived with the gun at the apartment shared by the co-indictees and the trio left together after 1:00 a.m. Appellant and Kinsman entered the fast-food restaurant and returned five minutes later. Kinsman had the keys to the victim's car and drove it away, while appellant and Morgan followed. They abandoned the victim's car and drove across a bridge where appellant, who had placed the pistol into the zipped bank bag which he had taken from the restaurant, threw the bag into the river. When they returned to the co-indictees' apartment, appellant gave money to Kinsman and said he would re-pay the remainder of his debt when he could. Kinsman later remembered he had left the victim's keys in the abandoned car and, fearing his fingerprints were on the keys, he and Morgan returned to the car, where Kinsman cut his finger when he broke the passenger window to gain access to the keys. After Morgan saw news reports that the victim had been killed, appellant denied having killed the victim and threatened to kill Morgan if he mentioned it. Appellant told Morgan that Morgan could not prove appellant killed the victim and that appellant's mother and brother would provide him with an alibi.

Kinsman, who had been convicted of the murder of the victim and had received the death penalty (see Kinsman v. State, 259 Ga. 89, 376 S.E.2d 845 (1989)), testified that appellant was interested in procuring a gun in order to perform robberies so that he could leave town. Kinsman stated he saw appellant break into a home and come out with a gun, and that he, Morgan, and appellant drove together to the fast-food restaurant where Kinsman and appellant entered the restaurant. Appellant took money from the victim, gave it to Kinsman, and told Kinsman to leave. Kinsman heard a gunshot after he left the building. Appellant exited the building and told Kinsman he had shot the victim.

A detective who questioned appellant shortly after his arrest testified appellant initially denied any involvement in the death of the victim but concluded the interview by stating that he had done it and his involvement could not be proved because no one had seen him commit the crime. A county jail inmate assigned to a cell adjacent to that of appellant testified appellant told him he had shot the victim.

The evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of malice murder, armed robbery and theft by taking. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Citing former OCGA § 17-7-210(e) and contending that the State did not provide a timely copy of appellant's custodial, inculpatory statement made to the inmate of the adjacent cell, appellant complains the trial court erred when it allowed the inmate in the cell next to appellant to testify about the contents of the inculpatory statement.

Former OCGA § 17-7-210, repealed by Georgia Laws 1994, p. 1895, § 1, effective January 1, 1995, entitled a defendant, upon request, to receive a copy of any statement made by him while in police custody ten days prior to trial. Despite a timely request for such statements, appellant did not receive until three days before trial a copy of the police report containing the cellmate's statement which was made ten days before trial and which recounted the inculpatory statement purportedly made by appellant. The assistant district attorney received an oral report of the statement ten days before trial and a written report three days before trial. Relying on OCGA § 17-7-210(e), the trial court determined the evidence was produced as soon as possible after its discovery, delayed the start of the trial for several hours so that defense counsel could interview the witness, and authorized additional investigatory funds for the defense.

The trial court's decision that OCGA § 17-7-210(e) applied was not erroneous. Broomall v. State, 260 Ga. 220(2), 391 S.E.2d 918 (1990). The trial court's determination that the statement was produced as soon as possible is upheld unless clearly erroneous (Rife v. State, 203 Ga.App. 353, 354, 416 S.E.2d 864 (1992)), and appellant provides nothing more than speculation to contest the trial court's determination. Accordingly, we conclude the trial court did not err when it denied appellant's motion to suppress the statement.

3. Appellant contends the trial court erred when it refused to permit appellant to play for the jury an audio recording of a post-arrest conversation between appellant and co-indictee Morgan. Defense counsel sought to admit the tape recording during his cross-examination of a police detective and again during appellant's testimony. In the recorded conversation, appellant denied having played a role in the murder of the victim. At the hearing on appellant's motion for new trial, the trial court ruled that appellant should have been allowed to play the audiotape in its entirety since co-indictee Morgan had testified to a portion of the conversation. See OCGA § 24-3-38. The trial court found the error to have been harmless since appellant's denial of involvement during the taped conversation was brought out on direct and cross-examination of appellant and co-indictee Morgan.

Assuming it was error to refuse to allow the recording to be played, the error does not require reversal of appellant's convictions since the person with whom appellant was having the conversation testified that appellant denied being involved in the shooting, and appellant testified and denied any involvement in the shooting. Appellant's recorded denial of involvement would have been cumulative of this evidence, making it highly probable that the exclusion of the tape recording did not affect the verdict. Kennedy v. State, 277 Ga. 588(4), 592 S.E.2d 830 (2004).

4. Appellant next takes issue with the trial court's denial of his motions for mistrial made during the testimony of co-indictee Kinsman on the ground that Kinsman placed appellant's character in issue when he testified about prior bad acts purportedly committed by appellant. Kinsman did so by giving a non-responsive answer to a question put to him by the assistant district attorney and by explaining on cross-examination why he did not flee when appellant left him alone in the car the night the victim was killed.

The trial court instructed the jury to disregard the information contained in the nonresponsive answer. That action, coupled with the precept that "[a] nonresponsive answer that impacts negatively on a defendant's character does not improperly place the defendant's character in issue" (Hansley v. State, 267 Ga. 48(3), 472 S.E.2d 305 (1996)), leads us to conclude that the trial court did not err when it denied appellant's motion for mistrial. Banks v. State, 281 Ga. 678(3), 642 S.E.2d 679 (2007). Kinsman's testimony concerning his fear of appellant and his knowledge that appellant was a violent person was in response to defense counsel queries about the witness's failure to leave appellant or seek help from police when appellant left the witness alone shortly before the victim was killed. Inasmuch as the witness's responses were in explanation of his answer and a witness is entitled to explain his answer (Fields v. State, 176 Ga.App. 122, 335 S.E.2d 466 (1985)), and counsel will not be heard to object to testimony unfavorable to his client that he elicited (Cofer v. State, 166 Ga.App. 436(3), 304 S.E.2d 537 (1983)), we find no error in the trial court's denial of the motion for mistrial.

5. Appellant maintains he was denied his constitutional right to effective assistance of counsel because trial counsel failed to object to portions of the State's closing argument that appellant believes were improper. Appellant takes issue with the lack of objection to comments made by the prosecuting attorney which purportedly referred to "future dangerousness" and comments which purportedly referred to appellant's invocations of his right to counsel and right to remain silent.

To prevail on a claim of ineffective assistance of trial counsel, appellant must show counsel's performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel's errors, the outcome of the trial would have been different. A strong presumption exists that counsel's conduct falls within the broad range of professional conduct [cit., and t]he combined effects of counsel's error are considered in determining the prejudice prong....

...