Simmons v. State

• Decision Date: 05 July 2016
• Docket Number: S16A0253
• Parties: Simmons v. The State.
• Court: Georgia Supreme Court

299 Ga. 370

788 S.E.2d 494

Simmons

v.The State.

S16A0253

Supreme Court of Georgia.

Decided: July 5, 2016

Aaron Scott Palmer, McMillan, Rawlings, Davis & Howard, LLP, for Appellant.

Samuel H. Altman, District Attorney, Mary Kathryn McKinnon, Assistant District Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Matthew Min–soo Youn, Assistant Attorney General, for Appellee.

HINES, Presiding Justice.

Jermichael Simmons appeals from his convictions and sentences for malice murder, rape, and aggravated sodomy in connection with the death of Jennifer Sutton. For the reasons that follow, we affirm.¹

Construed to support the verdicts, the evidence showed that on Saturday, March 16, 2013, Sutton's body was found 50 feet from the road in an overgrown vacant lot in Swainsboro, Georgia. Her jeans and underwear had been pulled down to her knees and the shirts she was wearing had been pulled up to her chest. Blood had come from her mouth, where it appeared that she had been struck; she had been choked and asphyxiation was the cause of death.

During the early hours of March 16, 2013, Sutton and Simmons entered Billy Scott's home near the vacant lot and asked to use a bedroom to smoke illegal drugs, which Scott permitted; Scott knew Sutton, but not Simmons. Simmons and Sutton stayed in the room for thirty minutes to an hour, during which time Scott heard them arguing; when Simmons left Scott's home, Sutton followed him out, and continued to follow him as he walked down the road, exclaiming after him, “you shit me.” A used condom was found in the bedroom, which contained Simmons's DNA; examination of Sutton's vaginal and rectal areas also produced Simmons's DNA.

Over three months after the death, Simmons came to the attention of law enforcement officers, and an investigator contacted Simmons through his mother. Simmons went to the Swainsboro Police Department to be interviewed, and stated that he lived in North Carolina, but frequently visited his relatives in the area. Simmons first stated that he had known Sutton from previous sexual encounters, came upon her while walking on the street in the early morning hours of March 16, 2013, and chatted with her; she indicated that she was looking to “make some money” by selling sexual favors, but Simmons was not interested, as his fiancée was staying with him at his sister's apartment nearby, that another man came upon them while they were chatting, and Simmons left Sutton and the man together and walked to his sister's apartment. Upon further questioning, Simmons admitted that Sutton took him to a nearby house where he had sexual relations with her, but when he did not pay her, she angrily followed him down the street seeking money. Simmons admitted that he was also angry as he had not had to pay her for sex in the past, and in trying to keep her from grabbing at him and pulling on his shirt, he pushed her to the ground; although he stated that he helped her back to her feet, later during the interview, he stated that Sutton continued to fall to the ground, apparently unconscious. Simmons stated that as she was lying in the road, he pulled her to the side of it, at which time her shirts rose to her chest; he denied pulling her jeans down, or hitting or choking her. Simmons stated that he then walked to his sister's apartment; in response to a question as to why he did not call someone to help Sutton, he replied that he thought she was not badly hurt, would simply wake up, and did not want to arouse any suspicion on the part of his fiancée. He also stated that the next day, he watched from his sister's apartment as the police processed the crime scene around Sutton's body, and knew that they would eventually want to talk to him.

1. The evidence authorized the jury to find Simmons 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. Simmons notes that during its opening statement, the State alluded to the fact that, after leaving Sutton's body in a vacant lot, he “[called] no one. Not one single person.” He also points out that during its closing argument, the State alluded to Simmons's failure to come forward during the investigation of Sutton's killing² and that, during the State's case-in-chief, it presented testimony from the primary investigator that Simmons failed to come forward with the information that he had sex with Sutton the night she was killed.³ Simmons contends that these were instances of improper comment upon his silence. However, Simmons did not raise any timely objection below so as to allow the trial court to take any appropriate remedial action. See Mullins v. State , 270 Ga. 450, 511 S.E.2d 165 (1999). See also OCGA § 24–1–103 (a), (b). Thus, as to the remarks made in the State's opening statement and closing argument,

[i]nasmuch as there was no contemporaneous objection made, th[ese] allegation [s] of error ha[ve] not been preserved for review on appeal. See Phillips v. State , 285 Ga. 213, 675 S.E.2d 1 (2009). Also, there is no authority for the application of plain error review to comments made by lawyers during opening statements [or closing argument]. Rather, we apply plain error review to the trial court's jury instructions (see OCGA § 17–8–58 (b) ) and to the trial court's rulings on evidence. See OCGA § 24–1–103 (d). Opening statements [and closing arguments] are neither instructions by the trial court nor evidence. Accordingly, in the absence of an objection, th[ese] allegation [s] of error will not be considered by the Court.

Crayton v. State , 298 Ga. 792, 794, 784 S.E.2d 343 (2016) (Footnote omitted.)

Regarding the cited testimony of the investigator under our plain error review, this Court has previously stated the test for a finding of plain error.

First, there must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. [Cit.]

Cheddersingh v. State , 290 Ga. 680, 683, 724 S.E.2d 366 (2012). See also Jones v. State , 299 Ga. 40, 42 (2), 785 S.E.2d 886 (2016). See also OCGA § 24–1–103 (a) & (d).⁴

Simmons cites Mallory v. State , 261 Ga. 625, 409 S.E.2d 839 (1991) (overruled on other grounds, see Clark v. State , 271 Ga. 6, 515 S.E.2d 155 (1999) ), for the proposition that Georgia has a “bright-line” rule against admission of evidence of a defendant's “failure to come forward,” except in limited circumstances. Pretermitting whether Mallory established such a rule that governs Simmons's situation, he cannot rely upon that rule to demonstrate that it was plain error for the trial court to allow the unobjected-to testimony to be given. This Court has repeatedly noted that Mallory was decided on the basis of former OCGA § 24–3–36, a provision that has been repealed by the enactment of the new Evidence Code, which became effective January 1, 2013, and applied to Simmons's trial in 2014. See Seabolt v. Norris , 298 Ga. 583, 587 n. 3, 783 S.E.2d 913 (2016) ; State v. Sims , 296 Ga. 465, 471, 769 S.E.2d 62 (2015) ; Wilson v. State , 295 Ga. 84, 88 n. 6, 757 S.E.2d 825 (2014) ; Romer v. State , 293 Ga. 339, 343 n. 4, 745 S.E.2d 637 (2013) ; Yancey v. State , 292 Ga. 812, 817 n. 9, 740 S.E.2d 628 (2013). In doing so, we have taken pains to note that this Court “express [ed] no opinion about the continuing validity of Mallory under the new Evidence Code.” Sims , supra. See also Seabolt , supra ; Wilson , supra ; Romer , supra ; Yancey , supra. As such, it is not possible to say that for the trial court to permit the testimony at issue was a legal error that was “clear or obvious, rather than subject to reasonable dispute.” Cheddarsingh , supra. Rather, “[a]n error is plain if it is clear or obvious under current law. An error cannot be plain where there is no controlling authority on point....” Wilson v. State , 291 Ga. 458, 460, 729 S.E.2d 364 (2012). Accordingly, whether the testimony at issue violated Mallory must be considered “ ‘subject to reasonable dispute’ and thus cannot constitute plain error. [Cit.]” Id.

Simmons further asserts that the testimony at issue violated his right against self-incrimination under the Fifth Amendment to the Constitution of the United States, applicable to Georgia through the Fourteenth Amendment. See Jenkins v. Anderson , 447 U.S. 231, 235, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). But again, Simmons fails to point to authority showing that admission of the testimony is clearly and obviously legal error of constitutional magnitude. Rather, it is clear that testimony about a defendant's failure to come forward is often admissible. Id. at 240 (III), 100 S.Ct. 2124. Indeed, as in Jenkins,

no governmental action induced [Simmons] to remain silent before arrest. The failure to speak occurred before [Simmons] was taken into custody and given Miranda⁵ warnings. Consequently, the fundamental unfairness present in Doyle⁶ is not present in this case.⁷

Id. See also Salinas v. Texas , ––– U.S. ––––, 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013), noting that the Fifth Amendment privilege against self-incrimination ordinarily must be invoked to protect silence, which Simmons had not done at the time of his failure to come forward. Again, the absence of clear authority to support the proposition that Simmons...