Verdree v. State, A09A1402.

• Decision Date: 10 August 2009
• Docket Number: No. A09A1402.,A09A1402.
• Citation: 299 Ga. App. 673,683 S.E.2d 632
• Parties: VERDREE v. The STATE.
• Court: Georgia Court of Appeals

683 S.E.2d 632

299 Ga. App. 673

VERDREE v. The STATE.

No. A09A1402.

Court of Appeals of Georgia.

August 10, 2009.

Carl Gordon Schluter, for appellant.

Rebecca Ashley Wright, Dist. Atty., Madonna M. Little, Asst. Dist. Atty., for appellee.

ELLINGTON, Judge.

In June 2000, a Richmond County jury found Jamie Verdree guilty of multiple counts of armed robbery, aggravated assault, kidnapping, possession of a firearm during the commission of a crime, and use of a firearm by a convicted felon. Verdree's counsel filed a timely motion for new trial, but the trial court did not conduct a hearing on the motion until July 2008 and did not issue a ruling denying the motion until February 2009. Verdree appeals, contending the trial court erred in admitting testimony that violated his constitutional right to confrontation, erred in admitting other evidence, gave the jury an improper instruction, and improperly sentenced him. He also argues that the eight-year delay between his motion for new trial and the hearing thereon violated his due process rights, that he received ineffective assistance of trial and appellate counsel, and that the evidence was insufficient to support his convictions. For the following reasons, we reverse the denial of Verdree's motion for new trial and remand this case to the trial court.

Viewed in the light most favorable to the jury's verdict,¹ the evidence presented showed that someone committed three armed robberies of Taco Bell restaurants in Augusta between November 1997 and March 1998. During each of the robberies, the robber walked into the restaurant as soon as it opened, threatened the restaurant employees with a silver handgun, forced them into the walk-in refrigerator, ordered an employee to open the safe and give him the keys to the registers, and then fled the scene with cash. Several of the victims of the first two robberies testified that, although the robber had part of his face covered with a stocking cap, they could see that the robber appeared to be missing a front tooth. Investigators also obtained surveillance videotapes of each of the robberies and were able to extract still photographs of the robber's face from the videotapes of the last two robberies.

Based on information obtained from a variety of sources, an investigator with the Richmond County Sheriff's Department began to focus his investigation on Jamie Verdree and obtained a search warrant for Verdree's mother's home. While executing the warrant, the investigator showed Ms. Verdree still photographs from the robberies and asked her if the pictures were of Jamie Verdree or one of Verdree's two brothers. Ms. Verdree replied that Jamie and one of his brothers were identical twins, but she could tell the man in the pictures was Jamie, because he was the twin who had a broken front tooth and she could see the broken tooth in one of the pictures.

Investigators then secured an arrest warrant for Verdree in connection with the March 1998 armed robbery, and they went to the house he shared with his girlfriend. Before knocking on the door, the officers could see Verdree through a window, standing with his girlfriend, Constance Scott, and his cousin, Wayne Roberts. After Scott answered the door, however, both she and Roberts told the officers that Verdree was not there. Scott consented to a search of the house, and the officers eventually found Verdree hiding in the attic. They arrested Verdree and also took custody of a loaded, silver .38 caliber revolver they found in a duffel bag on a couch. Although Roberts told the officers that the revolver belonged to him, the officers did not arrest Roberts because, at the time, he was not a suspect in the robberies.

An investigator conducted a custodial interview of Verdree early the next morning. According to the investigator, he advised Verdree that he was going to be charged with the March 1998 armed robbery, and, at that point, Verdree "stated something to the effect of, now you got me, I guess we'll just have to have a trial." Verdree then told the investigator that he wanted to get some sleep and did not want to answer any more questions, so the interview ended.

The investigator also testified that Wayne Roberts called him the day after Verdree was arrested and said that he wanted the sheriff's department to return to him the revolver that was seized when Verdree was arrested. The investigator asked Roberts to come to his office to discuss the gun, and Roberts did so. As the men were talking, the investigator realized that Roberts owned a blue Volkswagen Quantum that was similar to a car shown in the surveillance videotape of the March 1998 armed robbery. At that point, the investigator told Roberts that witnesses had seen Verdree getting out of Roberts' car on the morning of the robbery, and he informed Roberts that he was a suspect in the robbery. The investigator then read Roberts his Miranda rights and conducted an audiotaped interview; the State played a redacted version of the audiotape for the jury. According to the transcript of the tape, which the State distributed to the jury, Roberts told the investigator that he and Verdree were riding around in his car on the morning of the March 1998 robbery and that Verdree had said he wanted to go to Taco Bell to get something to eat. The restaurant was not open yet, so Roberts drove through the parking lot, got some gas, drove back through the lot, and parked nearby to wait for the Taco Bell to open at 10:00 a.m. Verdree then went into the restaurant while Roberts waited in the car; Verdree was inside the restaurant for about ten minutes before walking back to Roberts' car. According to Roberts, Verdree never told him that he was planning to rob the Taco Bell or said anything about the robbery afterward. Roberts also stated that he had never seen Verdree with a gun. When the investigator asked Roberts how Verdree got the gun that was used in the robbery, Roberts said that Verdree must have gotten it out of a bag in the trunk without his (Roberts') knowledge.²

1. Verdree contends that the trial court violated his constitutional right to confrontation by allowing the State to present the testimony of the investigator who conducted the custodial interview of Roberts. The record shows that, prior to Verdree's trial, his counsel filed a motion in limine asking the court to exclude any testimony about what Roberts told the investigator during the custodial interview. During two pre-trial hearings and one conducted during the trial, outside the presence of the jury, the State argued that the investigator's testimony about Roberts was admissible under the co-conspirator exception to the hearsay rule, because Roberts made the statements about Verdree while there was a conspiracy in progress between the two men and his initial statements denying any participation or knowledge about the robbery were made in furtherance of the conspiracy. The court ruled that Roberts' statements, up to the point where he admitted his involvement in the robbery, were statements of a co-conspirator in a concealment phase of an alleged crime and, therefore, were admissible outside the hearsay rule. The court also ruled that the statements were admissible because they did not amount to a confession which directly inculpated Verdree. For the following reasons, however, we conclude that the court erred in admitting the statements.

(a) Under OCGA § 24-3-5, after the State proves that a conspiracy to commit a crime existed, the declarations by any one of the conspirators during the pendency of the criminal project are admissible against all of them. But, under OCGA § 24-3-52, "[t]he confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself." "A conspirator's post-arrest statement to police incriminating a co-conspirator terminates the conspiracy, rendering the statement admissible only against the declarant." (Citations and punctuation omitted.) O'Neill v. State, 285 Ga. 125, 126, 674 S.E.2d 302 (2009). See Meadows v. State, 264 Ga.App. 160, 166(5), 590 S.E.2d 173 (2003) (a statement made to police by a conspirator which incriminates the other conspirator as a party to the crime constitutes termination of the conspiracy, regardless of whether the statement is inculpatory or exculpatory as to the declarant). Thus, Roberts' statements to the investigator, which clearly incriminated Verdree by placing him inside the Taco Bell at the exact time of the March 1998 armed robbery and kidnappings, were not made during the pendency of the criminal project and, therefore, were not admissible against Verdree under OCGA § 24-3-5. OCGA § 24-3-52; O'Neill v. State, 285 Ga. at 126, 674 S.E.2d 302.

(b) Moreover, the admission of Roberts' custodial statements to the investigator violated Verdree's Sixth Amendment right of confrontation under Crawford v. Washington, 541 U.S. 36, 40, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

The confrontation clause imposes an absolute bar to admitting out-of-court statements in evidence when they are testimonial in nature, and when the defendant does not have an opportunity to cross-examine the declarant. Although the trial in this case took place prior to the date Crawford was decided, this Court has held that, to the extent that Crawford enunciated a new rule for the conduct of criminal prosecutions, it applies retroactively to all cases pending on direct review or not yet final. [Roberts'] in-custody statement to police was testimonial inasmuch as it was made during the course of an investigation[.]

(Citations and punctuation omitted.) Soto v. State, 285 Ga. 367, 677 S.E.2d 95 (2009). See Watson v. State, 278 Ga. 763, 768(2), 604 S.E.2d 804 (2004) (statements made to police officers during an investigation qualify as "testimonial" for the purpose of determining whether Crawford applies). In this case, Roberts' statements to the investigator were testimonial in nature,...