Whitaker v. State
| Decision Date | 30 September 2002 |
| Docket Number | No. S02A1103.,S02A1103. |
| Citation | 275 Ga. 521,570 S.E.2d 317 |
| Parties | WHITAKER v. The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Amy H. Bogartz, Norcross, for appellant.
Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Peggy R. Katz, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Tammie J. Philbrick, Asst. Atty. Gen., for appellee.
Roosevelt Whitaker and Dove Smith were charged in a nine-count indictment resulting from the shooting death of Montavious Johnson and the aggravated assault of Cinwon Whitehead. Whitaker was tried separately and ultimately found guilty of felony murder, two counts of aggravated assault, and possession of a firearm during the commission of a felony.1 On appeal, Whitaker challenges several evidentiary rulings and asserts that he was denied effective assistance of trial counsel. Finding no error, we affirm.
Viewed in a light most favorable to the verdict, the evidence shows that Whitaker and co-defendant Smith contacted Johnson to arrange for the purchase of a significant quantity of cocaine. Johnson arranged with Whitehead to supply him with nine grams of cocaine and to accompany him during the deal. Whitaker warned a friend of the impending drug sale, telling him, "best you go in the house before you end up in jail or hell, one."
The two victims arrived at the designated location and Whitehead stepped out of Johnson's vehicle to consummate the deal. Before any exchange could take place, a car pulled in front of Johnson's car, blocking him in. Whitaker then appeared with an AK 47 assault rifle, pointed it at Whitehead and asked "where it's at?" Whitehead told Whitaker that the drugs were in Johnson's vehicle, then turned and ran, whereupon Johnson attempted to drive away. Whitaker fired at the vehicle at least 18 times. One shot struck Johnson in the back of the head, killing him. The vehicle continued to roll across a parking lot, collided with a parked car, and caught fire. Whitaker and Smith jumped into the car that had blocked Johnson's vehicle and fled the scene.
1. The evidence was sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), for a rational trier of fact to have found Whitaker guilty beyond a reasonable doubt of the crimes for which he was convicted.
2. Whitaker asserts that the trial court erred in permitting the State to introduce into evidence two autopsy photographs depicting burn injuries to the victim because they were irrelevant, inflammatory, and prejudicial. The first photograph was of the left eye and showed the exit wound of the bullet; the second was of the victim's left arm and chest and showed two tattoos.
Post-incision autopsy photographs of the victim "are admissible if necessary to show some material fact that becomes apparent only due to the autopsy." Peterson v. State, 274 Ga. 165, 171(5), 549 S.E.2d 387 (2001). The medical examiner testified that the gunshot wound to Johnson's head was not apparent prior to the autopsy due to the extensive burn damage, and that the cause of death was not even ascertainable until the autopsy was performed. Thus, the photograph was relevant "to aid the medical examiner in describing the cause and manner of death." Peterson, supra. With regard to the photograph of the arm and chest, the medical examiner testified that the charring more clearly defined the two tattoos which aided in confirming the identity of the victim. Thus, it too was relevant to the issues at trial. See generally Ramey v. State, 250 Ga. 455(1), 298 S.E.2d 503 (1983).
Nonetheless, relevant evidence may be excluded if the trial court in its sound discretion determines that the probative value is substantially outweighed by the danger of prejudice. Hicks v. State, 256 Ga. 715, 720(13), 352 S.E.2d 762 (1987). Whitaker argues that both photographs were unduly inflammatory and prejudicial because they showed the charred condition of the body. However, the condition of the body did not result from the autopsy, but from the vehicle fire which followed the shooting. Photographs are admissible "where alterations to the body are due to the combined forces of the murderer and the elements." Klinect v. State, 269 Ga. 570, 574(4), 501 S.E.2d 810 (1998). Because both photographs are relevant to the issues at trial and possess sufficient probative value, the trial court did not abuse its discretion in admitting them into evidence.
3. Whitaker submits that the trial court prejudiced his sole defense of misidentification by refusing to compel six FBI agents to appear and testify on his behalf.
Whitaker's defense at trial was that Johnson was actually shot by another man, John Wilson, who bears a strong resemblance to Whitaker and who, along with Whitaker's co-defendant Dove Smith, was under investigation by the FBI for a bank robbery. Whitaker served the six agents with subpoenas, but none appeared at trial to testify. The judge refused to use the court's subpoena power to compel the agents to attend because Whitaker could not establish that they would be able to provide relevant testimony.
While a defendant is entitled to show that another person committed the charged crime, the proffered evidence must also raise a reasonable inference of the defendant's own innocence. Palmer v. State, 274 Ga. 796, 797(3), 560 S.E.2d 11 (2002). The only testimony Whitaker expected the FBI agents to provide was their opinion that he and John Wilson looked alike. We agree with the trial court that this evidence was not relevant to Whitaker's misidentification defense and would, in any case, be cumulative of the testimony of other witnesses who had already commented on the resemblance between Whitaker and Wilson. Further, Wilson testified at trial, giving the jury the opportunity to observe both men.
4. Whitaker asserts that the trial court improperly limited his cross-examination of Wilson to the witness' activities on the day of the murder, thereby denying him the right to a thorough and sifting cross-examination under OCGA § 24-9-64.
A trial court has broad discretion in determining the scope of relevant cross-examination. Kolokouris v. State, 271 Ga. 597, 600(4), 523 S.E.2d 311 (1999). Whitaker based his misidentification defense on the supposition that Wilson actually committed the crime, despite the fact that four eyewitnesses (two of whom had known Whitaker for more than ten years) placed Whitaker at the scene. The trial court did not abuse its discretion in limiting the cross-examination to Wilson's activities on the day of the murder. Id.
5. State's witness Lee Ann Clark testified that she observed the shooting and she identified Whitaker as the shooter based on his body frame. On cross-examination, the defense showed the witness a facial photograph of John Wilson in a sitting position and asked if she could identify the person. The trial court sustained the State's objection on relevancy grounds. Whitaker asserts that his misidentification defense places his identity in issue, and any evidence is relevant if it tends to prove or disprove a material fact...
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