Rogers v. State

• Decision Date: 23 January 2012
• Docket Number: No. S11A1709.,S11A1709.
• Citation: 290 Ga. 401,721 S.E.2d 864,12 FCDR 215
• Parties: ROGERS v. The STATE.
• Court: Georgia Supreme Court

12 FCDR 215

290 Ga. 401

721 S.E.2d 864

ROGERS

v.The STATE.

No. S11A1709.

Supreme Court of Georgia.

Jan. 23, 2012.

Lloyd Johnson Matthews, Jonesboro, for appellant.

Robert D. James, Jr., Dist. Atty., Leonora Grant, Asst. Dist. Atty., Samuel S. Olens, Atty. Gen., Paula Khristian Smith, Senior Asst. Atty. Gen., Benjamin Henry Pierman, Asst. Atty. Gen., for appellee.

CARLEY, Presiding Justice.

Appellant Eric Rogers was indicted for the malice and felony murders of Mark Birmingham and Darnell Patterson. The trial court denied a motion for discharge and acquittal which alleged violations of Appellant's constitutional and statutory rights to a speedy trial, and this Court affirmed. Rogers v. State, 286 Ga. 387, 688 S.E.2d 344 (2010). After a jury trial, Appellant was found guilty of all counts. The felony murder verdicts were vacated by operation of law. The trial court entered judgments of conviction on the malice murder verdicts and imposed two consecutive sentences of life imprisonment. A motion for new trial was denied, and Appellant filed a timely notice of appeal.^*

1. Construed most strongly in support of the verdicts, the evidence shows that, when Appellant was approximately 19 years old, he befriended his six-year-old nephew Chris Probst and then began engaging in homosexual acts with Probst which continued until he was age 12, resumed at age 15, and ceased at age 18. In 1991, when Appellant was 30 years old, he also befriended 15–year–old Mark Birmingham and began engaging in homosexual acts with him. Probst testified that he witnessed some of Appellant's homosexual acts with Birmingham, that Appellant took Probst into the woods near their DeKalb County home where Birmingham lay after being shot to death, and that Probst helped Appellant dig a grave.

In 1994, Appellant befriended 18–year–old Darnell Patterson and began engaging in homosexual acts with him. After Patterson disappeared in 1995, Appellant moved to Mississippi and admitted to Richard Husband that, after attending the Super Bowl with Patterson and taking him back to Atlanta, Appellant murdered Patterson by shooting him in the back of the head. While in Mississippi in 2000, Appellant befriended 18–year–old Benjie Keyes, hit him in the head with a hammer, broke two of his teeth with a gun, handcuffed him to a pipe, forced him to perform homosexual acts, and took him into the woods to kill him. Keyes managed to talk Appellant out of killing him. Appellant was arrested, convicted of aggravated assault, and imprisoned in Mississippi. Probst led police officers to the wooded spot where Birmingham's body was buried. Patterson's body was never found.

With respect to the murder of Patterson, Appellant asserts that his confession to Husband was not corroborated by sufficient supporting evidence and was not sufficient proof that venue was proper in DeKalb County. As to venue, OCGA § 17–2–2(h) provides that “[i]f in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.” “[U]se of subsection (h) to determine venue in a homicide case is not precluded. [Cits.]” Nelson v. State, 262 Ga. 763, 765(2), 426 S.E.2d 357 (1993), overruled on other grounds, Clark v. State, 271 Ga. 6, 10(5), 515 S.E.2d 155 (1999). Appellant appears to argue that the standard of proof must be “beyond a reasonable doubt” and that the additional language “might have been committed” is conflicting and illogical. As Appellant concedes, however, we have upheld OCGA § 17–2–2(h) as a constitutional mechanism for resolving the issue of venue when the location in which the crime is committed cannot be determined with certainty. Hinton v. State, 280 Ga. 811, 815(2), 631 S.E.2d 365 (2006). Furthermore, this Court has held that subsection (h), whether applied in a homicide or nonhomicide case, is not unconstitutionally vague or indefinite. Felker v. State, 252 Ga. 351, 367(2)(b), 314 S.E.2d 621 (1984). Likewise, we now perceive no inconsistency in the wording of OCGA § 17–2–2(h). The evidence relevant to venue showed that Patterson was last seen alive in DeKalb County, that he left from that county, that Appellant confessed that he shot Patterson back in Atlanta which is partly in DeKalb County, and that Appellant and Patterson had been together every day at Appellant's residence in DeKalb County where Appellant had previously shot Birmingham and had buried him in the woods in that county. This evidence “was sufficient to show beyond a reasonable doubt that the murder might have been committed in DeKalb County.” Hinton v. State, supra at 814(1), 631 S.E.2d 365.

As for the corroboration vel non of Appellant's confession to Husband, OCGA § 24–3–53 provides that “[a] confession alone, uncorroborated by any other evidence, shall not justify a conviction.” “However, a confession, freely and voluntarily made, is evidence of the highest character, and any corroboration thereof will be sufficient to sustain a conviction. [Cit.]” Carswell v. State, 268 Ga. 531, 532(1), 491 S.E.2d 343 (1997). “A confession need be corroborated only by any particular, not every particular.” Moore v. State, 285 Ga. 157, 161(3), 674 S.E.2d 315 (2009). In determining whether a confession is corroborated, the jury is not required to find the corpus delicti beyond a reasonable doubt from evidence separate from and wholly independent of the confession, and instead “may consider the confession along with other facts and circumstances independent of and separate from it in determining whether or not the corpus delicti has been established to their satisfaction.” Gilder v. State, 219 Ga. 495, 497(2), 133 S.E.2d 861 (1963). “To establish the corpus delicti in a homicide prosecution, the State must prove that a death occurred, but there is no requirement that a dead body be produced. [Cits.]” Richardson v. State, 276 Ga. 548, 549(1), 580 S.E.2d 224 (2003). Appellant's confession to Husband was sufficiently corroborated by evidence that Patterson disappeared near the time of the Super Bowl, that Patterson left with Appellant to go to the Super Bowl, that Appellant always carried a .380 handgun, and that he had shot Birmingham and was going to shoot Keyes. See Moore v. State, supra; McIlwain v. State, 264 Ga. 382(1), 445 S.E.2d 261 (1994). The evidence adduced at trial and summarized above was sufficient to enable a rational trier of fact to find Appellant guilty beyond a reasonable doubt of the murders of both Patterson and Birmingham. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hinton v. State, supra; White v. State, 263 Ga. 94, 95–97(1), 428 S.E.2d 789 (1993).

2. At a pre-trial hearing on the admissibility of Appellant's statement to Georgia investigators at the Mississippi prison, defense counsel requested redaction of those portions of the statement where Appellant identified which of certain named individuals he had had sex with. She also argued that admission of Appellant's statement that he did not want to answer the same question with respect to Probst would constitute an improper comment on Appellant's right to remain silent. After being asked by the State to reserve ruling on that specific statement, the trial court excluded the portions in question except for that related to Probst and directed both parties not to go into the issue regarding Probst until the jury is excused and the issue is discussed again. At trial, Investigator Alan Traylor testified, in response to the prosecutor's questions and without objection, that Appellant did not want to talk about the question of whether he had had sex with Probst. Appellant contends that the State's disregard of the trial court's preliminary ruling concerning invocation of Appellant's right to remain silent constituted prosecutorial misconduct.

“Absent exceptional circumstances, claims of prosecutorial misconduct raised[, as in this case,] for the first time after trial ‘will not warrant reversal on appeal,’ [cit.]” Fugate v. State, 263 Ga. 260, 265(10), 431 S.E.2d 104 (1993). We find no such exceptional circumstances and further note that “ ‘[t]he “contemporaneous objection rule cannot be avoided by characterizing trial occurrences as examples of prosecutorial misconduct.” (Cit.)’ [Cit.]” Sanders v. State, 289 Ga. 655, 659(2), 715 S.E.2d 124 (2011). Where, as here, “the trial court reserves ruling on a challenge to the admission of evidence, a defendant's subsequent failure to object to the testimony when it is admitted or to invoke a ruling by the trial court preserves nothing for appellate review. [Cits.]” Dasher v. State, 285 Ga. 308, 311(4), 676 S.E.2d 181 (2009). See also Stroud v. State, 272 Ga. 76, 77(3), 526 S.E.2d 344 (2000). “ ‘[A] defendant must object to the alleged impropriety at the time it occurs in order to afford the trial court the opportunity to take remedial action. (Cit.)’ [Cit.]” Peterson v. State, 274 Ga. 165, 169(3), 549 S.E.2d 387 (2001).

Moreover, Appellant's refusal to answer a particular question during the custodial interview in Mississippi was admissible. We have held that an assertion of the right to remain silent during custodial interrogation “must be unambiguous and unequivocal before interrogators are required to stop their questioning [cit.] ...” Green v. State, 275 Ga. 569, 572(2), 570 S.E.2d 207 (2002).

Resolution of that question depends on whether [the accused] articulated a “ ‘desire to cut off questioning with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be an assertion of the right to remain silent.’ ...” [Cit.]

Perez v. State, 283 Ga. 196, 200, 657 S.E.2d 846 (2008). Numerous cases “have sanctioned the admissibility of testimony regarding a defendant's silence or nonverbal conduct during questioning subsequent to a valid waiver of rights.” People v. Hart, 214...