Rivera v. State

• Decision Date: 25 June 2007
• Docket Number: No. S07P0151.,S07P0151.
• Parties: RIVERA v. The STATE.
• Court: Georgia Supreme Court

282 Ga. 355

647 S.E.2d 70

RIVERA v. The STATE.

No. S07P0151.

Supreme Court of Georgia.

June 25, 2007.

Reconsideration Denied July 27, 2007.

Peter D. Johnson, Augusta, Atlanta, for Appellant.

Daniel J. Craig, Dist. Atty., Madonna Marie Little, Asst. Dist. Atty.; Thurbert E. Baker, Atty. Gen., Theresa Marie Schiefer, Asst. Atty. Gen., Department of Law, Atlanta, for Appellee.

Thomas Howard Dunn; Holly Lynn Geerdes, Geerdes & Kim, LLC; Richard A. Malone, Prosecuting Attorneys' Council, Atlanta, Other Party Representation.

THOMPSON, Justice.

A jury convicted Reinaldo Javier Rivera of one count of malice murder, three counts of rape, four counts of aggravated sodomy, four counts of aggravated assault, one count of burglary, and one count of possession of a knife during the commission of a crime in connection with the rape and murder of Marni Glista and the rapes of Chrisilee Barton and Tabitha Bosdell.¹ Rivera was sentenced to death for the murder. The trial court denied Rivera's motion for new trial, and he appeals. Finding no reversible error, we affirm the convictions and sentences.

General Grounds

1. Construed to support the verdicts, the evidence showed that on the morning of October 10, 2000, under the pretext of seeking directions, Rivera detained 18-year-old Chrisilee Barton while her car was at a stop sign. When the drivers behind her became impatient and honked their car horns, Rivera suggested that they pull into a nearby parking lot, where he continued to engage Barton in conversation, eventually telling her he was a professional photographer and asking her about modeling for photographs. When Rivera could not produce any identification to verify that he was with a modeling agency as he represented himself to be, Barton tried to put him off. However, Rivera was insistent about taking photographs of her at that time so Barton suggested that he follow her to her stepfather's apartment. Although Barton tried to lose Rivera along the way by switching in and out of lanes, Rivera arrived at the apartment immediately behind her, parked his car right beside hers, and followed her inside. While she was in the bathroom, Rivera secured a kitchen knife with which he attacked Barton from behind, raping and sodomizing her while she went in and out of consciousness. Rivera then strangled Barton and, supposing she was dead, left her unconscious on the floor. Rivera exited the apartment, moved his car down the street, and returned on foot to be certain he had left no incriminating evidence behind. When Rivera reentered the apartment and realized Barton was still alive, he again tried to kill her by strangling her with a towel before obtaining another knife from the kitchen and stabbing her repeatedly in the neck, transecting her jugular vein. Barton eventually regained consciousness and, despite multiple, deep stab wounds to her neck resulting in permanent nerve injury, she was able to crawl to the telephone and call 911. When the police arrived, the deadbolt on the door to the apartment where Barton was located was locked from the inside, and it appeared Rivera had exited through a back window.

Upon hearing a description of Barton's attacker on a news report, both Rivera's co-worker and his sister-in-law reported to police that they believed Rivera was the perpetrator. Rivera was eventually located in a South Carolina motel room and transported to the hospital because of an apparent suicide attempt. During interviews with police, Rivera not only admitted to the assault on Barton but confessed to raping, sodomizing, and murdering Marni Glista in September 2000 and to raping, sodomizing, and murdering Tabitha Bosdell in June 2000. Rivera disclosed the location of Bosdell's remains in Columbia County and also revealed that there were two other murder victims in South Carolina.

Marni Glista's commanding officer realized that Glista, a 21-year-old sergeant in the Army at the time of her death, had not reported for duty when her husband called from Kuwait trying to get in touch with her on the morning of September 5, 2000. He and another Army officer went to her residence, where they found her husband's vehicle in the driveway, with the windows down and bags of groceries on the front passenger seat. A police officer later testified that inside the bags he found a cell phone, a wallet containing a $20 bill, and the store receipt showing that the groceries had been purchased at 11:12 a.m. the previous day.

Although lights and ceiling fans were on inside Glista's residence, the Army officers could get no one to the front door so they called the police, who entered the residence and discovered Glista in a bedroom lying prone on the floor at the foot of the bed, nude except for an unfastened bra on her shoulders. She was making a gurgling sound, and one finger was moving. Glista's neck and wrists were "very neatly" wrapped with white medical tape, and her wrists were also bound together by tape with about an inch of space between them. There were severe abrasions equivalent to second-degree burns on her wrists, where it appeared that she had struggled against the tape over an extended period of time, and she had injuries consistent with a ligature having been applied to her neck. There were indentation marks on her back from bed rails she had been lying against, and she suffered bruising on her chest, her knees, and her pelvic area, in addition to numerous scratches and abrasions over her body. Glista's treating physician testified that Glista suffered irreversible brain damage as a result of an hypoxic injury caused by a lack of blood flow and oxygen to the brain and that, as a result, Glista's brain swelled until it cut off her breathing, at which point she was placed on a ventilator. On September 8, 2000, Glista was declared to be brain dead, and she died the following day when she was removed from the ventilator. The medical examiner testified that Glista suffered injuries consistent with having been sexually assaulted and that the cause of her death was the delayed consequence of ligature strangulation.

Months before, on the afternoon of June 29, 2000, Rivera saw 17-year-old Tabitha Bosdell walking to her job as a telemarketer in Augusta. After persuading her to get in the car with him, he took her to a secluded area where, during a fierce struggle, he sodomized, raped, and finally strangled her, first with his arm and then with her shirt. He subsequently disposed of her body in the woods at an exit off Interstate-20 and threw her clothing onto the side of the interstate. On October 14, 2000, investigators with the Richmond County and Columbia County Sheriff's Offices found human skeletal remains in a wooded area located in Columbia County off Interstate-20 by following directions provided to them by Rivera. The remains were identified as those of Bosdell through her dental records. A belly button ring and two white socks with a blue logo that were found in the area were also identified as belonging to Bosdell.

We conclude that the evidence, viewed in the light most favorable to the jury's verdict, was sufficient to authorize a rational trier of fact to find Rivera guilty of all charges beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See OCGA §§ 16-5-1, 16-6-1, 16-6-2, 16-5-21, 16-7-1, and 16-11-106.

Guilt/Innocence Phase

2. Rivera contends that the trial court erred by not allowing expert testimony regarding a theory that there is a connection between frontal lobe dysfunction and criminality. However, the record shows that Rivera failed to raise an objection to the ruling in the trial court. Accordingly, Rivera may not raise this issue on appeal. Tatum v. State, 259 Ga. 284, 287(4), 380 S.E.2d 253 (1989). Furthermore, we conclude that the trial court properly exercised its discretion in applying the Harper analysis and concluding, based on the evidence presented to it by the parties, including the testimony of the defense's experts and the most recent scientific articles at the time of trial pertaining to this area of study, that the theory in question had not reached a scientific stage of verifiable certainty to be admissible in the trial of this case. See Harper v. State, 249 Ga. 519, 525-526(1), 292 S.E.2d 389 (1982).

3. There was no abuse by the trial court in allowing to be presented to the jury the similar transaction evidence of the murder of Tabitha Bosdell and the rapes and murders of the two South Carolina victims, Melissa Dingess and Tiffany Wilson. After conducting a hearing in full compliance with the mandate of Williams v. State, 261 Ga. 640, 642(2)(b), 409 S.E.2d 649 (1991), the trial court found that the State had satisfied its burden in showing the following: (1) that each of the similar transactions that it sought to introduce as evidence was perpetrated by defendant; (2) that a sufficient connection existed between the acts alleged in the indictment and the transactions proffered so that proof of one tends to prove the others; and (3) that each transaction was offered for appropriate purposes to show defendant's bent of mind and course of conduct. According to our review of the record, the trial court's finding was not clearly erroneous and, therefore, will not be disturbed on appeal. Davis v. State, 279 Ga. 786, 787(3), 621 S.E.2d 446 (2005). We find no merit in Rivera's contention that the similar transaction evidence was overly prejudicial, as the trial court gave detailed limiting instructions each time it was admitted and at the close of the case. See Farley v. State, 265 Ga. 622, 625(2), 458 S.E.2d 643 (1995) (similar transaction evidence determined to be relevant for a proper purpose should be admitted, and the prejudicial impact is a matter for jury instruction).

4. In his third and fourth enumerations of error, Rivera challenges the admission into evidence of audiotape recorded statements he made to police. Citing ...