Whitehead v. The State
| Decision Date | 01 June 2010 |
| Docket Number | No. S10A0313.,S10A0313. |
| Citation | 695 S.E.2d 255,287 Ga. 242 |
| Parties | WHITEHEADv.The STATE. |
| Court | Georgia Supreme Court |
Gerard B. Kleinrock, Decatur, for appellant.
Gwendolyn Keyes Fleming, District Attorney, Daniel J. Quinn, Leonora Grant, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Sara K. Sahni, Assistant Attorney General, for appellee.
Kevon Whitehead and Raldane Gordon were jointly indicted for various crimes, including malice murder, relating to the shooting death of Horace Napier.1 Whitehead went to trial and was found guilty on all counts. On appeal, he contends that this Court should abandon its unusual rule that a defendant who objects and obtains a ruling on the admissibility of similar transaction evidence at a hearing held pursuant to Uniform Superior Court Rule (USCR) 31.3(B) waives appeal of the issue unless he repeats the same objection when the evidence is offered at trial. Whitehead also contends that the trial court erred in admitting evidence of a similar transaction at his trial. We agree that our rule regarding objection to similar transaction evidence should conform to our rule for objecting to other types of evidence, but we conclude that the trial court did not abuse its discretion in admitting the evidence at issue. We therefore affirm.
1. Construed in the light most favorable to the verdict, the evidence shows that Oral Anderson, who was a close friend of Napier's, owned a clothing store in DeKalb County with a studio in the back for recording Jamaican music. On November 5, 2007, Anderson was in the recording studio when he saw Whitehead and Gordon arrive. Whitehead and Gordon were there to sell marijuana to “Redman.” After taking the marijuana from Whitehead, Redman left without paying but told Whitehead that he would return shortly.
When Redman did not return promptly, Whitehead became angry. Anderson and other witnesses saw Whitehead, who was a convicted felon, with a handgun and later with an AK-47 rifle. Whitehead threatened to kidnap a bystander, but Anderson talked him out of it. Whitehead was loud and his demeanor was angry and threatening. Shortly thereafter, Napier and an unknown man arrived at the studio. Gordon pushed the man and then hit the man with his gun. Right after that, Anderson heard a shot fired from the direction of the man, and then more shots were fired and everyone ran. Anderson saw Napier trying to run away. Another witness testified that, after Gordon hit the unknown man, she saw Whitehead come around a corner with the AK-47. The evidence showed that five different guns had been fired at the scene, but the medical examiner determined that the victim died from a rifle wound to his head, and the only rifle shell casings found at the scene were eight fired from the same AK-47.
After the jury was sworn but before the presentation of evidence began, the trial court held a hearing outside the presence of the jury on the State's motion to present similar transaction evidence. See USCR 31.3(B); Edwards v. State, 282 Ga. 259, 261, 646 S.E.2d 663 (2007) (). During the hearing, Whitehead objected to the evidence, but the trial court ruled that the evidence could be admitted.
Consequently, during the trial Ramon Contres testified about an incident involving Whitehead that occurred about seven months after the Napier murder, early on the morning of June 28, 2008. Contres worked at a Jamaican nightclub located near Anderson's recording studio. Contres testified that he saw Whitehead fire two gunshots into the air in a crowd of about fifty people. Contres grabbed Whitehead, took him out of the club, and turned him over to the police. Contres stated that Whitehead was not arguing with anyone but instead fired into the air for no reason at all. A police officer who was working near the club heard two shots fired inside and saw people coming out of the club. He saw a security guard detaining Whitehead and went to assist. The officer had to use physical hand tactics and knee strikes to restrain Whitehead. Whitehead did not repeat his objection from the Rule 31.3(B) hearing when this evidence was presented to the jury.
After the State rested, Whitehead testified. He admitted that he came to the recording studio to sell marijuana to Redman. After Redman left, Whitehead called him and they agreed to meet at a liquor store. However, when Whitehead arrived there, he saw police cars and decided to leave. He then went to his house to get his AK-47, because he knew that Redman and others had guns and thought something could go wrong. After Whitehead returned to the recording studio, a car drove into the parking lot and an unknown man got out and approached Whitehead and the others there. Gordon hit the man twice with a gun. The man, who was also armed, started backing up but fired his gun. Whitehead testified that he started running but was shot in the back and staggered to his car. (His wound did not require hospitalization.) Whitehead then fired his AK-47 multiple times, but he claimed that he did not aim at anyone and did not know that anyone had been shot.
Whitehead also called Gordon, who had pleaded guilty to aggravated assault, as a witness. Gordon testified that, on the day of the crimes, Whitehead had a .45 caliber handgun and an AK-47. Gordon said that, while at the studio, a man he did not know walked up to them with a handgun. Gordon began to fight with the man, hit him twice, and then let him go. The man then fired at Gordon and ran away. Gordon fired twice into the air and then ran and jumped over a small retaining wall. Whitehead's car was parked on the other side. Gordon testified that Whitehead had retrieved the AK-47 from the car and stood on the retaining wall and fired the rifle. Gordon also testified that, as they drove away from the crime scene, Whitehead told Gordon that he had shot the victim in the forehead.
After the case had been submitted to the jury for deliberations, the following colloquy occurred:
The jury subsequently returned its guilty verdict. Viewed in the light most favorable to the verdict, the evidence was sufficient for the jury rationally to have found Whitehead guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Whitehead contends that the trial court erred in admitting the similar transaction evidence. During the motion for new trial proceedings, neither party argued that this issue was waived, and on appeal, the District Attorney agrees with Whitehead that we should decide the evidentiary issue on the merits. The Attorney General, however, contends that Whitehead is procedurally barred from raising the issue.
Our case law, as the Attorney General correctly notes, requires a defendant to repeat at trial any objection that he made to similar transaction evidence at the Rule 31.3(B) hearing or be deemed on appeal to have waived the objection. See Dixon v. State, 285 Ga. 312, 317, 677 S.E.2d 76 (2009); Robinson v. State, 283 Ga. 546, 547, 661 S.E.2d 538 (2008); Young v. State, 269 Ga. 478, 479, 499 S.E.2d 60 (1998). Under this rule, Whitehead would be barred from raising his similar transaction issue in this appeal, because even though he raises the same objection on appeal that he raised and obtained a ruling on during the Rule 31.3(B) hearing, he did not reassert the objection when the similar transaction evidence was offered at trial. His reiteration of the objection while the jury was deliberating is insufficient to preserve the issue under our standard rule that evidentiary objections made after the close of evidence are untimely. See Butler v. State, 273 Ga. 380, 382, 541 S.E.2d 653 (2001).
The repetitive objection rule is apparently unique to similar transaction evidence, but this Court has never explained why that should be so. Instead, the rule appears to have evolved over the course of a few cases, without discussion, from the customary rules for preserving objections to evidence. Nor have we applied the rule with vigor, as the rule has been dispositive in only one recent case.
The first case in which this Court clearly articulated the repetitive objection rule was Young, 269 Ga. 478, 499 S.E.2d 60 (1998), where we stated that, “[e]ven though Young objected to the introduction of the similar transaction evidence at the hearing conducted pursuant to Uniform Superior Court Rule 31.3(B), he was required to object to the introduction of the similar transaction evidence at trial in order to preserve the issue on appeal.” Id. at 479, 499 S.E.2d 60. The only authority cited for this proposition was Smith v. State, 268 Ga. 42, 43-44, 485 S.E.2d 189 (1997). Smith, however, stated only that a defendant waives review if he does not object to the introduction of the similar transaction evidence “at trial.” Id. at 43, 485 S.E.2d 189. Although Smith discusses a Rule 31.3 hearing that was held on the similar transaction evidence in that case, the opinion does not indicate whether Smith objected during that hearing, and so it may be that Smith did not object to the evidence at any point in the trial. See Smith, 268 Ga. at 43, 485 S.E.2d 189.
The only case that the Smith Court cited in support of its waiver holding was the Court of Appeals' decision in Buckner v. State, 219 Ga.App. 71, 464 S.E.2d 11 (1995)....
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