Sanford v. The State

• Decision Date: 28 June 2010
• Docket Number: No. S10A0148.,S10A0148.
• Citation: Sanford v. State, 287 Ga. 351, 695 S.E.2d 579 (Ga. 2010)
• Parties: SANFORDv.The STATE.
• Court: Georgia Supreme Court

287 Ga. 351

695 S.E.2d 579

SANFORDv.The STATE.

No. S10A0148.

Supreme Court of Georgia.

May 17, 2010.

Reconsideration Denied June 28, 2010.

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Charles H. Frier, Atlanta, for appellant.

Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Reggie A. Lampkin, Asst. Atty. Gen., for appellee.

HINES, Justice.

A jury found Otis Sanford guilty of malice murder, felony murder, aggravated assault with a deadly weapon, and possession of a firearm during the commission of a felony in connection with the fatal shooting of Veronica Corbett.Following the denial of a new trial, Sanford appeals his convictions, claiming that the trial court erred in admitting into evidence certain out-of-court statements and in failing to properly ascertain whether he wished to exercise his right to testify, and that his trial counsel rendered ineffective assistance.For the reasons that follow, we affirm.¹

The facts construed in favor of the verdicts showed the following.On October 1, 2004, Corbett was at the home of Marhna Smith, who was the father of one of her children.Corbett lived with Sanford from time to time.That day Sanford went to Smith's home to talk to Corbett and to get his cell phone and keys from her.Smith took Sanford's things outside where Sanford could retrieve them.Corbett did not want to talk to Sanford, but he would not leave.After waiting for about ten minutes, Sanford entered the house and ran past Smith, chasing Corbett through the house and down some stairs.Sanford then fired two shots at Corbett, striking her.Smith ran from the house after he heard the gunshots, and returned when he saw Sanford leave.Officer Gerjets arrived on the scene and found Corbett with a gunshot wound to the chest, but still alive and conscious.She held a pillow to her abdomen and was in obvious pain.She told the officer that Sanford had gone down into the basement and shot her.Subsequently, Smith identified Sanford from a photographic lineup as the man at his house when Corbett was shot.Corbett died at the hospital several hours after the shooting as a result of the gunshot wound.

At trial, Officer Gerjets testified that at the crime scene Corbett told him that Sanford had shot her because they had been in a relationship and had broken up and she was “transitioning in a relationship with Smith.”Sanford did not testify at the trial.

1.The evidence was sufficient to enable a rational trier of fact to find Sanford guilty beyond a reasonable doubt of the crimes of which he was convicted.Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

2.Prior to the start of trial, the trial court held a hearing on Sanford's motion to exclude statements made by Corbett to Officer Gerjets that Sanford had shot her.The statements were made as Corbett was waiting for help from emergency responders, and the trial court ruled that the statements were admissible into evidence as dying declarations and as part of the res gestae.Sanford contends that such ruling was error because the statements inculpating him did not qualify as dying declarations in that Corbett was not in the “article of death” when she made the statements, and, in fact, did not die until several hours later; he further argues that Corbett's statements were not admissible under the rationale of res gestae because they were made in response to police questioning, and that even if the statements qualify as either dying declarations or part of the res gestae, the analysis in Crawford v. Washington,541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177(2004), should be applied to find them inadmissible.However, the contentions are unavailing.

One of the requirements for a statement to be admissible as a dying declaration is that the deceased must have been conscious of his condition....OCGA § 24-3-6.²It need only appear to the court from the circumstances of the case that there was a probability that the deceased was conscious of his condition at the time he made the statement....The testimony introduced as dying declarations need not contain any statement by the deceased to the effect that he was conscious of impending death at the time the declarations were made, since this may be inferred from the nature of the wounds and other circumstances.

Morgan v. State,275 Ga. 222, 224(5), 564 S.E.2d 192(2002)(citations and punctuation omitted).Here, the circumstances amply demonstrate that Corbett was conscious of her critical condition at the time she made the statements inculpating Sanford as the shooter: it was apparent that her wounds were extremely serious; she was clutching a pillow to her abdomen to comfort her; her breathing was “stressed”; she was in great pain; and she appeared to be overwhelmed with fear.Moreover, recognizing the dire nature of her injuries, Corbett called 911 immediately after being shot and asked if she was going to die, and as the tape of the 911 call further established, Smith pleaded with her to “stay alive.”These circumstances made a prima facie showing for the admission of the subject statements as Corbett's dying declarations.Ventura v. State,284 Ga. 215, 217(2), 663 S.E.2d 149(2008).What is more, the statements were properly admitted under the res gestae exception to the hearsay rule, even though they may have been in response to queries by the officer; Corbett made the statements shortly after the shooting, in the midst of the chaos of the crime scene, and while awaiting emergency treatment.Morgan v. State,supra at 225(5), 564 S.E.2d 192(2002).SeeOCGA § 24-3-3.³

As to Sanford's urging that this Court should apply the analysis in Crawford v. Washington,supra, to find the statements inadmissible, this Court previously has acknowledged with approval that the Supreme Court of the United States has expressly declined to extend its analysis to dying declarations.Walton v. State,278 Ga. 432, 434(1), 603 S.E.2d 263(2004).

3.Sanford also contends that the trial court erred in overruling his objection to Officer Gerjets testifying that Corbett said that she thought that Sanford had shot her because they had been in a relationship that ended and she was going back to Smith.He argues that a dying declaration is limited to the cause of the person's death and the identity of the killer, and that testimony about the motive for the killing is not permitted.On the contrary, “dying declarations are admissible to prove any relevant fact embraced in the res gestae of the killing....Conversations and conduct which are a part of the res gestae may be admitted as part of a dying declaration.”Strickland v. State,167 Ga. 452, 458(4), 145 S.E. 879(1928).Further, the admissibility of evidence as part of the res gestae is a matter within the discretion of the trial court.Wright v. State,301 Ga.App. 178, 180(1), 687 S.E.2d 195(2009).Here, there was no abuse of the trial court's discretion in this regard.Id.As for any claim that the statement should have been barred under Crawford v. Washington,supra, only a statement that is testimonial will cause the declarant to be a witness for the purpose of the Confrontation Clause; a statement is nontestimonial, even when made during police interrogation, when the circumstances objectively indicate that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.Glover v. State,285 Ga. 461, 462(2), 678 S.E.2d 476(2009).That is precisely the situation in this case.Officer Gerjets responded to the emergency situation, found the fatally wounded victim, and asked her what happened in order to assess the exigencies; also, he wanted to keep the victim talking in order to keep her from losing consciousness before emergency responders arrived.The Confrontation Clause is not implicated.Id.

4.Sanford maintains that the trial court erred in failing to properly ascertain whether he wanted to exercise his right to testify.He acknowledges that the trial court explained to him, outside the presence of the jury, that it was his decision whether to testify, but he claims that the trial court never got an on-the-record answer as to his wishes.But, the complaint is unavailing.

First, there is no requirement that the trial court have an on-the-record colloquy with a non-testifying defendant in order to inform the defendant of the right to testify and to obtain a knowing and intelligent waiver of that right.State v. Nejad,286 Ga. 695, 690 S.E.2d 846(2010), citingBurton v. State,263 Ga. 725(6), 438 S.E.2d 83(1994).However, on the record is this colloquy among the trial court, Sanford, and defense counsel:

THE COURT: Mr. Sanford, in every case to every defendant I say exactly the same thing on the record.It has-I'm not singling you out in any way.You have the right to decide for yourself in this case whether you're going to take the witness stand.

SANFORD: Yes, ma'am.

THE COURT: You can get advice from your attorneys, but only you make that decision.

SANFORD: Yes, ma'am.

THE COURT: If you do testify, you can be cross-examined like any other witness, under Georgia law.If you choose not to testify, you'll get a charge from the court that says that no defendant is not-no defendant is required to testify, and if a defendant elects not to, as you would do in this case, if that's what you decide, and they can't hold that against you.Have you made a decision whether or not you want to take the stand or you are in the process of making that decision?

SANFORD: No.

THE COURT: Ms. Berry?Has your client decided?He doesn't have to answer me.He can answer through-

COUNSEL: Yes, he has decided, your honor, and no, he will not be testifying.

Sanford complains that the trial court accepted his attorney's assertion of Sanford's intentions, without asking him if that assertion was correct, even though Sanford's answer “no” could easily be interpreted to mean he had...