Justia.com Opinion Summary: Defendant appealed from the denial of his motion for a new trial following his conviction for malice murder and other related crimes. The court held that defendant did not preserve his claim that the trial court erred by admitting evidence of his prior drug arrest as similar transaction evidence; an agent's reference to defendant's mug shot from a previous arrest was harmless error based on the overwhelming evidence of defendant's guilt; and the trial court did not abuse its discretion by concluding that certain witnesses' testimony bore sufficient indicia of trustworthiness to be admissible under the necessity exception to the hearsay rule. Accordingly, the judgment was affirmed.
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In the Supreme Court of Georgia
Decided: January 23, 2012
S11A1904. BUTLER v. THE STATE.
THOMPSON, Justice.
Appellant Curtis Butler appeals from the denial of his motion for new trial
following his conviction for the malice murder of Dwayne Streeter and other
related crimes.1 Finding no error, we affirm.
1. Viewed in the light most favorable to the verdict, the jury was authorized
to find that appellant and the victim were acquaintances who on a frequent basis
bought and sold drugs from each other. On the day of the crimes, appellant and
a co-defendant went to the victim’s apartment under the guise of selling him drugs
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The crimes occurred on May 23, 2007, and Butler was indicted by a Cobb
County grand jury on October 30, 2008. After a jury trial held on December 1-9, 2008, a
jury found Butler guilty of malice murder, felony murder (2 counts), aggravated assault,
criminal attempt to commit a violation of the Georgia Controlled Substances Act, and
possession of a firearm during the commission of a crime. He was sentenced on
January 2, 2009 to life in prison for malice murder, a consecutive 15-year sentence for the
criminal attempt charge, and five years consecutive for the charge of possession of a
firearm during the commission of a crime. The felony murder and aggravated assault
convictions were merged and vacated by operation of law. See Malcolm v. State, 263 Ga.
369 (4) (434 SE2d 479) (1993). Butler filed a motion for new trial on January 2, 2009,
which was amended on November 10, 2009, and denied on March 12, 2010, after a
February 16, 2010 hearing. His notice of appeal was filed on April 5, 2010. The appeal
was docketed to the April 2011 Term of this Court and orally argued on November 8,
2011.
but with the intent to rob him in retaliation for his refusal to provide appellant with
bond money after a recent arrest. The parties argued, and the victim was fatally
shot in the chest while standing in his doorway. Appellant was questioned by
police after witnesses saw two men running from the apartment and identified
appellant’s distinctive vehicle as the one seen leaving the crime. Friends of the
victim told police the victim had been waiting for appellant at his apartment to
make a deal. Appellant provided several inconsistent stories to authorities but
ultimately admitted he was present at the drug deal at the victim’s apartment.
Construed in the light most favorable to the verdicts, the evidence was
sufficient to enable 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 SC 2781, 61 LE2d 560) (1979).
2. Appellant contends the trial court erred by admitting evidence of his prior
drug arrest as similar transaction evidence because the instances were not
sufficiently similar. However, this claim of error has not been preserved for
appeal. Although appellant objected to this evidence at a Rule 31.3 hearing, he did
not do so on the ground now raised. It is well established that "the failure of a
defendant to object to the introduction of similar transaction evidence on the basis
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that the State has not made a sufficient showing and/or the trial court has not made
the requisite findings as required by [Uniform Superior Court] Rule 31.3 (B) and
our []decision in Williams [v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649)
(1991)] precludes appellate consideration of those issues. [Cit.]” Riddle v. State,
208 Ga. App. 8, 10 (430 SE2d 153) (1993). See also Whitehead v. State, 287 Ga.
242 (2) (695 SE2d 255) (2010); Smith v. State, 268 Ga. 42 (3) (485 SE2d 189)
(1997); Buckner v. State, 219 Ga. App. 71 (2) (464 SE2d 11) (1995). See also
Hunter v. State, 202 Ga. App. 195, 198 (3) (413 SE2d 526) (1991) ("nothing in .
. . Williams suggests that the Supreme Court has determined to dispense with the
long-standing rule that, to warrant appellate consideration, an objection to the
admission of evidence must first have been raised in the trial court”). Accordingly,
appellant’s general objections that he had not yet been convicted of the similar
crimes and that introduction of the similar transaction evidence would improperly
place his character in issue did not preserve the alleged ground of error.
3. While testifying about appellant’s arrest for the similar transaction, a GBI
agent mentioned that during the investigation police identified appellant from a
mug shot they received from the Cobb County Sheriff’s office. There was no
additional inquiry concerning the mug shot and appellant did not object to the
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agent’s mention of the photograph at the time of trial. On appeal, appellant
contends the agent’s reference to his mug shot from a previous arrest improperly
placed his character into evidence. See OCGA § 24-2-2. Even assuming this issue
has been preserved for appeal and the agent’s testimony improperly placed
appellant’s character into evidence, we conclude the error was harmless based on
the overwhelming evidence of appellant’s guilt. See Sharpe v. State, 288 Ga. 565
(4) (707 SE2d 338) (2011) (introduction into evidence of mug shot relating to
previous crime impermissibly places defendant’s character into evidence).
Compare Fulton v. State, 278 Ga. 58 (5) (597 SE2d 396) (2004) (witness’
reference to fact that photograph of defendant was in police files prior to arrest for
which he was being charged did not place character into evidence).
4. Appellant contends the trial court erred by admitting into evidence under
the necessity exception to the hearsay rule the testimony of Durand Nichols and
Evanda Buxton regarding statements made by the victim about his relationship
with appellant. See OCGA § 24-3-1 (b).
Hearsay evidence is admissible under the necessity exception to the hearsay
rule if: (1) the declarant of the statement is unavailable; (2) the declarant’s
statement is relevant and more probative of a material fact than other evidence that
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may be procured and offered; and (3) the statement exhibits specific indicia of
reliability. Mills v. State, 287 Ga. 828 (3) (700 SE2d 544) (2010). In determining
whether an out-of-court statement bears sufficient indicia of trustworthiness, we
look at the totality of the circumstances. Roper v. State, 263 Ga. 201, 202 (429
SE2d 668) (1993). Whether a statement is trustworthy is a matter for the trial
court's discretion, and the exercise of such discretion will not be overturned absent
an abuse of discretion. Myers v. State, 275 Ga. 709 (2) (572 SE2d 606) (2002).
Although not challenged by appellant on this basis, we find the first and
second prerequisites are satisfied here because the victim is deceased and
unavailable to testify, the statements are relevant to show appellant’s intent,
motive, and bent of mind, and are more probative of these facts than other
evidence that could be procured and offered. See Watson v. State, 278 Ga. 763,
765 (604 SE2d 804) (2004). With regard to the third prerequisite, appellant argues
there was no evidence of a close relationship between the victim and the witnesses
or that the victim placed great confidence in the witnesses and therefore, the
statements lack the required indicia of reliability. We disagree. Nichols testified
he had known the victim for five years. They were close friends who talked at
least several times a day, often about personal matters. Nichols stated he
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considered the victim to be his “little brother.” Similarly, Buxton testified he and
the victim had been close friends for three or four years before the shooting. They
lived just minutes apart, saw or spoke with each other every day, and knew each
other’s family members. Both witnesses stated they discussed personal and
confidential matters with the victim, including the drug deals in which the victim
was involved and the fact that the victim had a falling out with appellant after he
refused to provide bond money. Based on the record evidence, we cannot say the
trial court abused its discretion by concluding the testimony of Nichols and Buxton
bore sufficient indicia of trustworthiness to be admissible under the necessity
exception to the hearsay rule. See Gibson v. State,
Ga.
(Case No. S11A1330,
decided October 3, 2011); McPherson v. State, 274 Ga. 444 (10) (553 SE2d 569)
(2001) (guaranty of trustworthiness shown by testimony that witnesses were close
friends with victim who routinely confided in them with respect to personal
matters).
Judgment affirmed. All the Justices concur.
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