Thompson v. State
Decision Date | 03 March 2014 |
Docket Number | No. S13A1851.,S13A1851. |
Citation | 294 Ga. 693,755 S.E.2d 713 |
Court | Georgia Supreme Court |
Parties | THOMPSON v. The STATE. |
OPINION TEXT STARTS HERE
Dell Jackson, Decatur, for appellant.
Patricia B. Attaway Burton, Dep. Atty. Gen., Paula Khristian Smith, Senior Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Rochelle Warren Gordon, Asst. Atty. Gen., Atlanta, Elizabeth A. Baker, Leonora Grant, Asst. Dist. Attys., Robert D. James, Jr., Dist. Atty., Decatur, for appellant.
Appellant Tony Lamar Thompson appeals his convictions for felony murder and related crimes regarding the death of Reynaldo Jackson.1 The evidence in a light most favorable to the verdict shows that in the early morning hours of April 4, 2010, appellant, Jackson, and Noel Williams drove together in Jackson's truck to an apartment complex in DeKalb County for the purpose of buying drugs. Williams exited the vehicle and was walking around it when she suddenly heard gunshots. When she turned around, Williams saw appellant shooting into the truck from the passenger's side. Appellant told Williams to help him move Jackson's body and help him wipe fingerprints from the vehicle, but Williams stood still in shock, and so appellant pushed Jackson's body back into the vehicle. Appellant then ran with Williams behind one of the apartment buildings. Appellant gave Williams his bloodied shirt and tried to give Williams the gun, but she refused to take it and so appellant hid the gun in a crawl space. Appellant told Williams to go to his brother's apartment and that he would meet her there. When Williams arrived at the brother's apartment, no one was home and so she called a friend who picked her up from a restaurant near the apartment complex where the shooting took place. While riding in the friend's car, Williams testified that she threw out appellant's bloody shirt on the side of the interstate. Later that morning, an apartment resident found the victim's body in the truck, and she called 911. Because the resident recognized the victim as appellant's associate, she also called appellant to tell him his “home boy” was dead. By this time, authorities had arrived and set up crime scene tape, keeping bystanders at a distance. The resident testified appellant came to the crime scene, but left after approximately ten minutes, saying he was going to church.
Upon returning home mid-morning on April 4, Williams testified she contacted the police in order to provide information about the victim's murder. Detectives picked her up at her home and took her to the police station where she made a statement and identified appellant out of a photo lineup as the person who killed the victim. Williams then rode with police to show them where to find the murder weapon and the bloody shirt, both of which police were able to recover as evidence. Investigators also found three 9mm Luger Blazer shell casings near the passenger side of the victim's truck, recovered a bullet fragment from the interior of the victim's truck, and recovered two bullets from the victim's body. At trial, the ballistics expert testified that the shell casings and projectiles had all been fired from the gun, which was a 9mm Luger, recovered with Williams' assistance. DNA experts testified that the bloody shirt contained the victim's blood DNA, as well as trace amounts of appellant's DNA on the shirt's collar. Buttons found at the scene were consistent with the remaining buttons on the bloody shirt. A fingerprint analyst testified that appellant's fingerprints matched fingerprints found on the exterior passenger door of the victim's truck. The medical examiner testified the victim was shot four times and that two of the gunshots were fatal: a gunshot to the face and a gunshot to the chest which damaged the victim's lungs, heart and liver.
Taking the stand in his own defense, appellant testified he did not commit the crime. He stated on the evening of April 3, the victim came by his apartment with Williams and another person. Appellant said the three people left after he gave the victim some of his clothes to wear to a club the three were going to that night. In the early morning hours of April 4, appellant stated Williams returned to his house and confessed to shooting the victim.
1. The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Appellant alleged counsel was ineffective for failing to object to a question propounded by the prosecutor in which he contends the prosecutor stated his opinion of appellant's guilt. In order to prevail on a claim of ineffective assistance of counsel, appellant
must show counsel's performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel's errors, the outcome of the trial would have been different. A strong presumption exists that counsel's conduct falls within the broad range of professional conduct.
(Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34(4), 644 S.E.2d 837 (2007). If a defendant fails to meet his burden on one prong of the two-prong test, then the other prong need not be reviewed by the Court. Wright v. State, 291 Ga. 869, 870(2), 734 S.E.2d 876 (2012).
A witness who was Williams' friend and who also knew appellant testified that at about 7:00 a.m. on April 4, Williams called her and said she had witnessed a murder. The witness stated that sometime after her conversation with Williams, she had a conversation with appellant. In regard to that conversation, the prosecutor questioned the witness as follows:
Q. Did the defendant call you at all that day?
A. No. I don't really remember if he called me or I called him, one.
Q. Okay. So at some point you called him or he called you?
A. Yes.
Q. And do you have any idea when that was?
A. It was the next—no, it was that same day. It was later on like in the evening though like about 3:00 or 4:00.
Q. And at that point in time did you know that Tony was the one who had committed the murder?
A. No, I didn't.
It is at this point, appellant argues that trial counsel should have objected. At the motion for new trial hearing, trial counsel testified that she did not believe the prosecutor's question was objectionable because the witness had come to the conclusion herself that appellant was involved in the incident.2 Pretermitting whether trial counsel was deficient for failing to object, an objection to the prosecutor's question as posed would not have changed the outcome of the case given the substantial evidence of appellant's guilt. Accordingly, this enumeration of error is without merit.
3. Appellant complains the prosecutor engaged in misconduct for the reasons stated in Division 2 of this opinion. However, appellant waived appellate review of any challenge regarding the prosecutor's conduct because he failed to make a contemporaneous objection at trial. Sanders v. State, 289 Ga. 655(2), 715 S.E.2d 124 (2011).
4. Appellant contends the trial court abused its discretion when it allowed two witnesses to testify about prior difficulties between the victim and appellant. Specifically, the record shows that after a proffer was made by the State, the trial court allowed the jury to hear testimony from the victim's cousin and the cousin's girlfriend concerning prior difficulties between appellant and the victim. The cousin testified that about a month and a half prior to the murder, the victim told him about a dispute appellant and the victim had over money from a check-cashing scheme in which they were both allegedly involved. The victim's cousin explained he was privy to the scheme and the dispute because he was considering joining the scheme at the victim's invitation. The cousin's girlfriend testified that two weeks prior to the murder, the victim told her he had a fist fight with appellant over money. Both witnesses also testified that appellant and the victim appeared to be on amicable terms in spite of the dispute.
Appellant alleges the trial court abused its discretion when it admitted this testimony because his Sixth Amendment right to confrontation was violated when the witnesses effectively testified on the deceased victim's behalf. Appellant's Sixth Amendment argument is solely focused on the trial court's finding that the proffered testimony had an indicia of trustworthiness, one of the prerequisites for applying the necessity exception to the rule excluding hearsay (see former OCGA § 24–3–1(b) 3). For a party to avail itself of the necessity exception, it must show that the declarant is unavailable, that the statement is relevant and probative of a material fact, and that the statement exhibits particular guarantees of trustworthiness. Johnson v. State, 294 Ga. 86(2), 750 S.E.2d 347 (2013). Appellant does not challenge the first and second required showings, but only takes issue with the trustworthiness of the statements.
“Whether testimony was accompanied by particular guarantees of trustworthiness is a matter for the trial court's discretion.” Belmar v. State, 279 Ga. 795(2), 621 S.E.2d 441 (2005). We have held that a statement is trustworthy where there is a showing that the deceased enjoyed a close personal relationship to the person who is testifying as to the statement. See Davis v. State, 294 Ga. 486(2), 754 S.E.2d 67 (2014). Here, the trial court concluded the proffered testimony was reliable because it found the victim was like a brother to both the cousin and the cousin's girlfriend; it found this close relationship was underscored by the fact that the victim invited the cousin to participate in the check-cashing scheme; and it found the victim spent a significant amount of time with the cousin and the cousin's girlfriend, noting in particular that the three spent time together on the day...
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