Pollard v. State

• Decision Date: 26 May 1999
• Docket Number: No. A99A0191.,A99A0191.
• Citation: 238 Ga. App. 253,518 S.E.2d 463
• Parties: POLLARD v. The STATE.
• Court: Georgia Court of Appeals

518 S.E.2d 463

238 Ga. App. 253

POLLARD v. The STATE.

No. A99A0191.

Court of Appeals of Georgia.

May 26, 1999.

James J. Lacy, Smyrna, Timothy L. Barton, for appellant.

Stephen D. Kelley, District Attorney, Ann S. Williams, Assistant District Attorney, for appellee. BLACKBURN, Presiding Judge.

Following a jury trial, Jack Pollard appeals his conviction of voluntary manslaughter, contending that there was insufficient evidence to support the conviction and that the trial erred by: (1) admitting into evidence the victim's statements to witnesses; (2) admitting into evidence his incriminating statements made to police at the scene; (3) admitting into evidence his incriminating custodial statements; (4) limiting defense counsel's cross-examination of the victim's sister regarding prior acts of violence by the victim; and (5) allowing physicians who treated the victim to testify regarding the extent of the victim's wound and the degree of force required to cause such a wound. For the reasons discussed below, we affirm.

1.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Pollard] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Barber v. State, 235 Ga.App. 170, 509 S.E.2d 93 (1998). See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Viewed in this light, the evidence shows that on November 2, 1996, Theodore Kirksey, Phillip Moore and Pollard went to Pollard's home to watch a video. Subsequently, Moore's wife called him to lunch, and he returned to his home next door in the duplex. Minutes later, while Moore was eating, Kirksey knocked on his door. Kirksey told Moore that Pollard had just stabbed him. When Kirksey lifted his shirt, Moore saw a small cut to the left of Kirksey's breast bone, but Kirksey was not bleeding a lot. Moore went in his duplex to call for help and did not see Kirksey again.

Kirksey left the duplex and went to an apartment complex where Cheryl Girard met him in the yard. Kirksey asked to use the phone and said that he needed help, because he had been stabbed. Shortly thereafter, Kirksey also told Mary Ellen Rollins that Pollard had stabbed him.

Brunswick Police Officer Ron Harris and Corporal McKenney Tremble arrived while Kirksey was being treated by medical personnel and spoke with the bystanders who directed them to Pollard's house. Harris, Tremble and two other officers went to Pollard's home and identified themselves. The officers stated they were investigating a stabbing, whereupon Pollard invited them into his house and immediately told the officers that he had stabbed Kirksey and demonstrated how it had happened. The officers asked where the knife was, and Pollard gave it to them.

Pollard was arrested on charges of aggravated assault, taken to the police station and advised of his Miranda rights. Pollard signed a waiver of rights form and then gave an oral statement to Corporal Tremble in which he admitted to stabbing Kirksey after a dispute over watching a video.

Although Kirksey did not appear seriously injured, the stabbing proved fatal. Kirksey died at the hospital. However, prior to his death, Kirksey told an emergency room nurse, Mary Jane Hurd, that he had been stabbed with a kitchen knife.

Pollard gave a taped statement to Detective Chanclor in which he admitted to stabbing Kirksey. Pollard learned after giving this statement that Kirksey had died. Pollard was tried and convicted and filed this appeal.

There is ample evidence to authorize the jury's finding that Pollard was guilty, beyond a reasonable doubt, of voluntary manslaughter and to support the conviction. See Jackson, supra.

2. Pollard contends the trial court erred by admitting into evidence Kirksey's statements made to witnesses shortly after the stabbing.¹ However, by failing to object to this testimony at trial, Pollard has waived his right to assert on appeal that the statements were inadmissible hearsay. Basu v. State, 228 Ga.App. 591, 592(1), 492 S.E.2d 329 (1997).

Moreover, the statements were so close in time to the stabbing that the witnesses' testimony was admissible under the doctrine of res gestae. Basu, supra; Park v. State, 230 Ga.App. 274, 278(5), 495 S.E.2d 886 (1998). OCGA § 24-3-3 provides that "[d]eclarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae."

As explained in Brantley v. State, [177 Ga.App. 13, 14-15(2), 338 S.E.2d 694 (1985) ] what the law altogether distrusts is not after-speech but afterthought.... If the declarations appear to spring out of the transaction—if they elucidate it—if they are voluntary and spontaneous, and if they are made at a time so near to it, as reasonably to preclude the idea of deliberate design, then they are to be regarded as contemporaneous.

(Punctuation omitted.) Sims v. State, 234 Ga.App. 678, 682(2), 507 S.E.2d 845 (1998). Kirksey spoke to the witnesses while still under the strain and anxiety of the stabbing. The statements were so closely connected in time to the stabbing so as to be free of afterthought and were therefore admissible.

3. Pollard next contends that his statements made in response to Officer Tremble's initial inquiry at Pollard's residence were inadmissible since he had not been given his Miranda warnings. "Miranda warnings are not required when a person responds to an officer's initial inquiry at an on-the-scene investigation which has not become accusatory." Thompson v. State, 234 Ga.App. 74, 75(1), 506 S.E.2d 201 (1998).

A suspect must be in a custodial situation for Miranda to apply; a suspect is not entitled to Miranda warnings, as a matter of right, unless he has been taken into custody or has been deprived of freedom of action in another significant way. Hardeman v. State, 252 Ga. 286, 288(1), 313 S.E.2d 95 (1984); Carroll v. State, 208 Ga.App. 316, 317(2), 430 S.E.2d 649 (1993).

(Punctuation omitted.) Thompson, supra at 76(1), 506 S.E.2d 201.

A person is not in a state of custody merely because he is a prime suspect at the time he is interrogated by the police or their agent. Even if the police have probable cause to arrest at the time of the interview and secretly intend to charge the suspect at some future time, such facts are immaterial to a determination of whether the suspect was in custody at the time of the interview, except when and to what extent the police communicate their future intent to arrest during the course of the interview.... The real issue for adjudication is whether the individual was formally arrested or restrained to the degree associated with a formal arrest. In resolving this issue, the relevant inquiry is how a reasonable person in a suspect's position would perceive his situation; that is, whether a reasonable person in [Pollard's] position would have understood the situation to constitute restraint on freedom of movement of the degree which the law associates with formal arrest.

(Citations and punctuation omitted.) Thompson, supra at 75-76(1), 506 S.E.2d 201; Hendrix v. State, 230 Ga.App. 604, 605-606(1), 497 S.E.2d 236 (1997).

In this case, Pollard, while in his own home, voluntarily confessed to the stabbing moments after the police officers told him they were conducting an investigation. Even if Pollard were a suspect at the time, there is no evidence that he was restrained or placed under arrest, and as such, legal safeguards applicable to custodial statements are inapposite to this case. His initial statements to Tremble were voluntarily made under noncustodial circumstances, and the trial court did not err in admitting the statement. Hendrix, supra; Whatley v. State, 196 Ga.App. 73, 78(5), 395 S.E.2d 582 (1990).

4. Pollard argues that his incriminating custodial statements made at the police station were involuntary and therefore inadmissible at trial. "[W]hether a defendant waives his rights under Miranda and makes a voluntary and knowing statement depends on the totality of the circumstances." (Citation omitted.) Henry v. State, 264 Ga. 861, 862(2...