Clark v. State, 515 S.E.2d 155 (Ga. 1999). · Go Syfert
Clark v. State, 515 S.E.2d 155 (Ga. 1999). Cases Citing This Book View Copy Cite
361 citation events (325 in the last 25 years) across 7 distinct courts.
Strongest positive: Palmer v. State (ga, 2024-03-05)
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999 2012 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) Palmer v. State (2×)
Ga. · 2024 · confidence medium
See Betterman, 578 U.S. at 439 (“We hold that the [Sixth Amendment speedy trial] guarantee protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges.”); Jenkins v. State, 294 Ga. 506, 510 (755 SE2d 138) (2014) (rejecting argument that 20 because of Brady violations at the defendant’s first trial, the length of the delay should be measured from the date of the defendant’s arrest instead of the date of the remittitur from this Court following affirmance of the habeas court’s…
discussed Cited as authority (rule) McIver v. State
Ga. · 2022 · confidence medium
(Citations and punctuation omitted.) Carr v. State, 267 Ga. 701 , 712 96 (10) ( 482 SE2d 314 ) (1997), overruled in part on other grounds by Clark v. State, 271 Ga. 6, 10 (5) ( 515 SE2d 155 ) (1999); see also Smith v. State, 288 Ga. 348, 355-356 (10) (b) ( 703 SE2d 629 ) (2010) (“In this regard, we must remind all prosecutors in this State that it is not their job to pursue stunts and antics during their closing arguments that are designed merely to appeal to the prejudices of jurors.”) Judgment affirmed in part and reversed in part.
discussed Cited as authority (rule) Mosley v. State
Ga. · 2020 · confidence medium
Here, trial counsel would 22 have been required to demonstrate that “the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification.” Clark v. State, 271 Ga. 6, 12 (7) (b) ( 515 SE2d 155 ) (1999).
discussed Cited as authority (rule) Williams v. State
Ga. · 2019 · confidence medium
Specifically, he cites to the statement, “the response that you get is a combination of silence, which under the law is attached agreement [sic].”6 Williams contends that a bright-line rule then in effect prohibited the State from commenting on a defendant’s pre- arrest silence or failure to come forward, citing Mallory v. State, 261 Ga. 625, 629-630 (5) ( 409 SE2d 839 ) (1991), overruled on other grounds as recognized in Clark v. State, 271 Ga. 6, 10 (5) ( 515 SE2d 155 ) (1999),7 and that, therefore, his counsel’s failure to object to the comment constituted deficient performance.
discussed Cited as authority (rule) State v. Spratlin
Ga. · 2019 · confidence medium
Rather than responding to those federal constitutional arguments, the State based its argument on Georgia cases applying the evidentiary rule this Court announced in an old Georgia Evidence Code case — Mallory v. State, 261 Ga. 625, 629-630 ( 409 SE2d 839 ) (1991), overruled on other grounds by Clark v. State, 271 Ga. 6, 9-10 ( 515 SE2d 155 ) (1999).
discussed Cited as authority (rule) Carlton Steve McKissic v. State (2×)
Ga. Ct. App. · 2018 · confidence medium
In arguing that a mistrial should have been granted, McKissic relies on Mallory v. State, 261 Ga. 625 ( 409 SE2d 839 ) (1991), overruled on other grounds as recognized in Clark v. State, 271 Ga. 6, 10 ( 515 SE2d 155 ) (1999).
discussed Cited as authority (rule) Goodrum v. State
Ga. · 2018 · confidence medium
Goodrum contends that the prosecutor’s comments violated the “bright line rule” articulated in Mallory v. State, 261 Ga. 625 ( 409 SE2d 839 ) (1991), overruled on other grounds as recognized in Clark v. State, 271 Ga. 6, 10 ( 515 SE2d 155 ) (1999), in which this Court cited a former rule of evidence and held that it is impermissible to comment on a criminal defendant’s pre-arrest silence, even where the accused had not received Miranda warnings and where the defendant testifies at trial (as Goodrum did). 2 But here the issue relevant to Goodrum’s ineffective assistance claim is not w…
discussed Cited as authority (rule) Smith v. State
Ga. · 2017 · confidence medium
“A married person’s complaints about that person’s spouse, made to one with whom the married person is conducting an adulterous affair, are subject to the possibility of exaggeration if not outright falsehood.” Carr v. State, 267 Ga. 701, 705-706 ( 482 SE2d 314 ) (1997), overruled on other grounds, Clark v. 8 State, 271 Ga. 6, 10 ( 515 SE2d 155 ) (1999).
discussed Cited as authority (rule) Smith v. State
Ga. · 2017 · confidence medium
“A married person’s complaints about that person’s spouse, made to one with whom the married person is conducting an adulterous affair, are subject to the possibility of exaggeration if not outright falsehood.” Carr v. State, 267 Ga. 701, 705-706 ( 482 SE2d 314 ) (1997), overruled on other grounds, Clark v. State, 271 Ga. 6, 10 ( 515 SE2d 155 ) (1999).
discussed Cited as authority (rule) Dublin v. State
Ga. · 2017 · confidence medium
Myself and the other investigator went down to Willie Dublin’s house on Maple and tried to talk with him and her, and neither one of them showed any kind of willingness to talk with us, so we left the house.” Dublin argued in his amended motion for new trial and contends on appeal that this amounted to a violation of the rule articulated in Mallory v. State, 261 Ga. 625 ( 409 SE2d 839 ) (1991), overruled on other grounds by Clark v. State, 271 Ga. 6, 10 (5) ( 515 SE2d 155 ) (1999).
discussed Cited as authority (rule) Lawton v. the State
Ga. Ct. App. · 2017 · confidence medium
He argues that the evidence violated the rule set out in Mallory v. State, 261 Ga. 625 ( 409 SE2d 839 ) (1991), overruled on other grounds by Chapel v. State, 270 Ga. 151, 154-156 (4) ( 510 SE2d 802 ) (1998), see Clark v. State, 271 Ga. 6, 10 (5) ( 515 SE2d 155 ) (1999), that the state may not comment upon a defendant’s silence or failure to come forward.
discussed Cited as authority (rule) Tran v. the State
Ga. Ct. App. · 2017 · confidence medium
Sanders v. State, 290 Ga. 637, 640 (4) ( 723 SE2d 436 ) (2012); Reynolds v. State, 285 Ga. 70, 71-72 ( 673 SE2d 854 ) (2009); Mallory v. State, 261 Ga. 625, 630 (5) ( 409 SE2d 839 ) (1991), recognized as overruled on other grounds in Clark v. State, 271 Ga. 6, 10 (5) ( 515 SE2d 155 ) (1999). 7 Accordingly, “it wouldbe improper for the prosecution to comment upon a criminal defendant’s silence or failure to come forward even when he takes the witness stand.” Doyle v. State, 291 Ga. 729, 733 (3) ( 733 SE2d 290 ) (2012); see also Tucker v. State, 228 Ga. App. 321, 324 (1) (b) ( 491 SE2d 420…
discussed Cited as authority (rule) Lupoe v. State
Ga. · 2016 · confidence medium
However, OCGA § 24-6-622 says, “The state of a witness’s feelings towards the parties and the witness’s relationship to the parties may always be proved for the consideration of the jury.” Under the substantially identical provision of Georgia’s old Evidence Code, see former OCGA § 24-9-68, we held that a trial court did not abuse its discretion in admitting evidence that the defendant and his alibi witnesses were members of the same gang and that the gang name “meant T will die for you, you will die for me’ as this evidence was relevant to show the state of the witnesses’s f…
discussed Cited as authority (rule) Blackmon v. State
Ga. · 2016 · confidence medium
This allegation relates to the determination of whether there was a substantial likelihood of misidentification, an issue that arises only after a court determines the identification procedure was impermissibly suggestive. 2 See Clark v. State, 271 Ga. 6, 12-13 (7) (b) ( 515 SE2d 155 ) (1999) (stating that “[t]he taint which renders an identification procedure impermissibly suggestive must come from the method used in the identification procedure” and concluding that evidence of a witness’ difficulty in communicating, length of time between shooting and reporting of crime and identificat…
cited Cited as authority (rule) Kennebrew v. State
Ga. · 2016 · confidence medium
Mallory was overruled on other grounds in Clark v. State, 271 Ga. 6, 9-10 ( 515 SE2d 155 ) (1999).
discussed Cited as authority (rule) Dumas v. State
Ga. Ct. App. · 2016 · confidence medium
See Reynolds v. State, 285 Ga. 70, 71 ( 673 SE2d 854 ) (2009); Mallory v. State, 261 Ga. 625, 630 (5) ( 409 SE2d 839 ) (1991), overruled on other grounds recognized in Clark v. State, 271 Ga. 6, 10 (5) ( 515 SE2d 155 ) (1999); Scott v. State, 305 Ga. App. 710, 716 (2) (a) ( 700 SE2d 694 ) (2010); Johnson v. State, 293 Ga. App. 728, 730 ( 667 SE2d 637 ) (2008).
discussed Cited as authority (rule) Gregory Dumas v. State
Ga. Ct. App. · 2016 · confidence medium
See Reynolds v. State, 285 Ga. 70, 71 ( 673 SE2d 854 ) (2009); Mallory v. State, 261 Ga. 625, 630 (5) ( 409 SE2d 839 ) (1991), overruled on other grounds recognized in Clark v. State, 271 Ga. 6, 10 (5) ( 515 SE2d 155 ) (1999); Scott v. State, 305 Ga. App. 710, 716 (2) (a) ( 700 SE2d 694 ) (2010); Johnson v. State, 293 Ga. App. 728, 730 ( 667 SE2d 637 ) (2008).
discussed Cited as authority (rule) Andrea Sneiderman v. State
Ga. Ct. App. · 2016 · confidence medium
Johnson v. State, 293 Ga. 641, 643 ( 748 SE2d 896 ) (2013); Roper v. State, 263 Ga. 201, 202-203 ( 429 SE2d 668 ) (1993), overruling on other grounds recognized in Clark v. State, 271 Ga. 6, 10 ( 515 SE2d 155 ) (1999).
discussed Cited as authority (rule) Sneiderman v. State
Ga. Ct. App. · 2016 · confidence medium
Johnson v. State, 293 Ga. 641, 643 ( 748 SE2d 896 ) (2013); Roper v. State, 263 Ga. 201, 202-203 ( 429 SE2d 668 ) (1993), overruled on other grounds recognized in Clark v. State, 271 Ga. 6, 10 ( 515 SE2d 155 ) (1999).
discussed Cited as authority (rule) Marcus Turner v. State
Ga. Ct. App. · 2015 · confidence medium
The Georgia Supreme Court has held that in criminal cases “a comment upon a defendant’s silence or failure to come forward . . . will not be allowed even where the defendant has not received Miranda warnings and where he takes the stand in his own defense.” Mallory v. State, 261 Ga. 625, 630 (5) ( 409 SE2d 839 ) (1991), overruled on other grounds, Chapel v. State, 270 Ga. 151, 155 (4) ( 510 SE2d 802 ) (1998), as recognized in Clark v. State, 271 Ga. 6, 9 (5) ( 515 SE2d 155 ) (1999).2 This case, however, is distinguishable on its facts from Doyle and Mallory.
discussed Cited as authority (rule) Turner v. State
Ga. Ct. App. · 2015 · confidence medium
The Supreme Court of Georgia has held that in criminal cases “a comment upon a defendant’s silence or failure to come forward... will not be allowed even where the defendant has not received Miranda warnings and where he takes the stand in his own defense.” Mallory v. State, 261 Ga. 625, 630 (5) ( 409 SE2d 839 ) (1991), overruled on other grounds, Chapel v. State, 270 Ga. 151, 155 (4) ( 510 SE2d 802 ) (1998) , as recognized in Clark v. State, 271 Ga. 6, 9 (5) ( 515 SE2d 155 ) (1999) . 2 This case, however, is distinguishable on its facts from Doyle and Mallory .
discussed Cited as authority (rule) Johnnie Culbreath v. State
Ga. Ct. App. · 2014 · confidence medium
“It is error to allow testimony concerning a pre-trial identification of a defendant if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification.” Clark v. State, 271 Ga. 6, 12 (7) (b) ( 515 SE2d 155 ) (1999).
discussed Cited as authority (rule) Culbreath v. State
Ga. Ct. App. · 2014 · confidence medium
“It is error to allow testimony concerning a pre-trial identification of a defendant if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification.” Clark v. State, 271 Ga. 6, 12 (7) (b) ( 515 SE2d 155 ) (1999).
discussed Cited as authority (rule) Wilson v. State
Ga. · 2014 · confidence medium
See Crawford v. Washington, 541 U.S. 36, 51 ( 124 SCt 1354 , 158 LE2d 177) (2004); McNaughton v. State, 290 Ga. 894, 897 ( 725 SE2d 590 ) (2012). 5 In the new Evidence Code, the admission of excited utterances is governed by OCGA § 24-8-803 (2), which defines an “excited utterance” as “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” 6 Mallory was overruled on other grounds in Clark v. State, 271 Ga. 6, 9-10 ( 515 SE2d 155 ) (1999).
discussed Cited as authority (rule) State v. Brown
S.C. Ct. App. · 2014 · confidence medium
As to Bowman's argument regarding the photographic lineups: State v. Traylor, 360 S.C. 74, 81 , 600 S.E.2d 523, 526 (2004) ("A criminal defendant may be deprived of due process of law by an identification procedure which is unnecessarily suggestive and conducive to irreparable mistaken identification."); State v. Moore, 343 S.C. 282, 287 , 540 S.E.2d 445, 447 (2000) (noting the two-prong inquiry requiring the circuit court to determine (1) whether the identification process was unduly suggestive and if so, (2) whether the out-of- court identification process was nevertheless so reliable that n…
cited Cited as authority (rule) Mathis v. State
Ga. · 2013 · confidence medium
Clark v. State, 271 Ga. 6, 12 ( 515 SE2d 155 ) (1999).
cited Cited as authority (rule) Boothe v. State
Ga. · 2013 · confidence medium
Clark v. State, 271 Ga. 6, 11 ( 515 SE2d 155 ) (1999).
cited Cited as authority (rule) Yancey v. State
Ga. · 2013 · confidence medium
Mallory was overruled on other grounds in Clark v. State, 271 Ga. 6, 9-10 (5) ( 515 SE2d 155 ) (1999).
discussed Cited as authority (rule) Reaves v. State
Ga. · 2013 · confidence medium
Luallen v. State, 266 Ga. 174, 178 (4) ( 465 SE2d 672 ) (1996), overruled on other grounds, Clark v. State, 271 Ga. 6, 9-10 (5) ( 515 SE2d 155 ) (1999); Johnson v. State, 289 Ga. App. 41, 43 ( 656 SE2d 200 ) (2007).
discussed Cited as authority (rule) Jimmy Gooden v. State
Ga. Ct. App. · 2012 · confidence medium
Citing Mallory v. State 12 and Reynolds v. State,13 Gooden maintains on appeal that the prosecutor’s question, italicized above, together with the answer, impermissibly injected his post-arrest silence into the proceedings and that his trial counsel should have objected thereto.14 The transcript of the hearing on motion for new trial does not contain trial counsel’s testimony revealing his reason for not 11 (Emphasis added.) 12 261 Ga. 625 ( 409 SE2d 839 ) (1991), overruled on other grounds, Clark v. State, 271 Ga. 6, 9-10 (5) ( 515 SE2d 155 ) (1999). 13 285 Ga. 70 ( 673 SE2d 854 ) (2009).…
cited Cited as authority (rule) Gooden v. State
Ga. Ct. App. · 2012 · confidence medium
(Emphasis supplied.) 261 Ga. 625 ( 409 SE2d 839 ) (1991), overruled on other grounds, Clark v. State, 271 Ga. 6, 9-10 (5) ( 515 SE2d 155 ) (1999). 285 Ga. 70 ( 673 SE2d 854 ) (2009).
discussed Cited as authority (rule) Sanders v. State
Ga. · 2012 · confidence medium
Reynolds v. State, 285 Ga. 70 *641 ( 673 SE2d 854 ) (2009); Landers v. State, 270 Ga. 189, 190 ( 508 SE2d 637 ) (1998); Mallory v. State, 261 Ga. 625, 629-630 (5) ( 409 SE2d 839 ) (1991), overruled on other grounds, Clark v. State, 271 Ga. 6, 9-10 (5) ( 515 SE2d 155 ) (1999).
discussed Cited as authority (rule) Rogers v. State
Ga. · 2012 · confidence medium
As to venue, OCGA § 17-2-2 (h) provides that “[i]f in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.” “[U]se of subsection (h) to determine venue in a homicide case is not precluded. [Cits.]” Nelson v. State, 262 Ga. 763, 765 (2) ( 426 SE2d 357 ) (1993), overruled on other grounds, Clark v. State, 271 Ga. 6, 10 (5) ( 515 SE2d 155 ) (1999).
discussed Cited as authority (rule) Veasey v. State
Ga. Ct. App. · 2011 · confidence medium
However, based on our review of the arguments made by Veasey, “we find no clear error in the trial judge’s conclusions that these strikes were [not] exercised in a racially discriminatory manner.” Id. (citation and punctuation omitted). 12 Chapman v. State, 273 Ga. 348, 349-50 (2) ( 541 SE2d 634 ) (2001); see also Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984). 13 Chapman, 273 Ga. at 350 (2). 14 Id.; Henderson v. State, 303 Ga. App. 898, 898 (1) ( 695 SE2d 334 ) (2010). 15 Henderson, 303 Ga. App. at 898 (1). 16 Overton v. State, 295 Ga. App. 223, 237…
discussed Cited as authority (rule) Boring v. State
Ga. · 2011 · confidence medium
See, e.g., id. at 674 (4) (trial court properly admitted evidence of gang involvement where State adduced evidence that defendant committed crimes at request of fellow gang members and was required to participate therein under gang’s code of conduct); Clark v. State, 271 Ga. 6, 9 (4) (515 *434 SE2d 155) (1999) (evidence of defendants’ “membership in an unsavory group,” though incidentally bearing on their character, admissible when alleged motive for crime “directly involve[dj” such membership); Mize v. State, 269 Ga. 646 (3) ( 501 SE2d 219 ) (1998) (trial court properly allowed ev…
discussed Cited as authority (rule) Norris v. State
Ga. · 2011 · confidence medium
The “best evidence” rule, embodied in OCGA § 24-5-4, means that, when the contents of a writing are material, the original of the writing must be produced or its absence accounted for. [Cit.] Secondary evidence of the contents of a writing will be admissible “if an original writing is properly authenticated, its existence and admissibility shown, and its absence accounted for. . . .” [Cits.] Clark v. State, 271 Ga. 6, 11 (6) ( 515 SE2d 155 ) (1999).
discussed Cited as authority (rule) Brown v. State
Ga. Ct. App. · 2011 · confidence medium
On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender. 23 261 Ga. 625 ( 409 SE2d 839 ) (1991), overruled on other grounds, Clark v. State, 271 Ga. 6, 9-10 (5) ( 515 SE2d 155 ) (1999). 24 Id. at 630 (5). 25 See Landers v. State, 270 Ga. 189, 190-191 (2) ( 508 SE2d 637 ) (1998) (state improperly commented upon defendant’s silence during argument but error not preserved for appellate re…
discussed Cited as authority (rule) Hilton v. State
Ga. · 2010 · confidence medium
See Mize v. State, 269 Ga. 646, 650 ( 501 SE2d 219 ) (1998) (holding that evidence of the defendant’s racist beliefs and membership in the Ku Klux Klan and evidence that he possessed racist symbols were admissible to show motive and bent of mind); Clark v. State, 271 Ga. 6, 9 ( 515 SE2d 155 ) (1999) (holding that evidence that the defendant and the victim were members of a gang and that the victim had been killed for talking to police about a crime that members of the gang had committed was admissible, because the State may present evidence of motive and because relevant evidence does not be…
discussed Cited as authority (rule) Scott v. State
Ga. Ct. App. · 2010 · confidence medium
Blair was released from custody after paying a fine. 9 Sims v. State, 251 Ga. 877, 879 (3) ( 311 SE2d 161 ) (1984). 10 Kell v. State, 280 Ga. 669, 671 (2) (a) ( 631 SE2d 679 ) (2006). 11 Johnson v. State, 255 Ga. App. 721, 722 (2) ( 566 SE2d 440 ) (2002). 12 Fields v. State, 260 Ga. 331, 333 (4) ( 393 SE2d 252 ) (1990). 13 Evans v. State, 288 Ga. App. 103, 107 (2) ( 653 SE2d 520 ) (2007). 14 Smith v. State, 302 Ga. App. 128, 132 (1) (b) ( 690 SE2d 449 ) (2010). 15 Gibbs v. State, 287 Ga. App. 694, 696 (1) ( 652 SE2d 591 ) (2007). 16 Greene v. State, 295 Ga. App. 803, 805 ( 673 SE2d 292 ) (2009…
cited Cited as authority (rule) Arellano v. State
Ga. Ct. App. · 2010 · confidence medium
Mallory v. State, 261 Ga. 625, 630 (5) ( 409 SE2d 839 ) (1991), overruled on other grounds, Clark v. State, 271 Ga. 6, 9-10 (5) ( 515 SE2d 155 ) (1999).
discussed Cited as authority (rule) McKinley v. State
Ga. Ct. App. · 2010 · confidence medium
Public officers are authorized to maintain a record of facsimile exemplifications, which may but is not required to include the retention of the exemplification as transmitted by facsimile. *208 OCGA § 24-7-20 provides: The certificate or attestation of any public officer, either of this state or any county thereof, shall give sufficient validity or authenticity to any copy or transcript of any record, document, paper of file, or other matter or thing in his respective office, or pertaining thereto, to admit the same in evidence. 4 See Clark v. State, 271 Ga. 6, 11 (6) ( 515 SE2d 155 ) (1999)…
discussed Cited as authority (rule) Mayberry v. State
Ga. Ct. App. · 2009 · confidence medium
Reynolds v. State, 285 Ga. 70, 71 ( 673 SE2d 854 ) (2009); Mallory v. State, 261 Ga. 625, 630 (5) ( 409 SE2d 839 ) (1991), overruled on other grounds, Clark v. State, 271 Ga. 6, 9-10 (5) ( 515 SE2d 155 ) (1999).
discussed Cited as authority (rule) Adams v. State
Ga. Ct. App. · 2009 · confidence medium
Smith, P. J., and Bernes, J., concur. 1 261 Ga. 625 ( 409 SE2d 839 ) (1991), overruled on other grounds, Clark v. State, 271 Ga. 6, 9-10 (5) ( 515 SE2d 155 ) (1999). 2 Mallory, supra at 630 (5). 3 285 Ga. 70 ( 673 SE2d 854 ) (2009). 4 Id. at 71 . 5 Whitaker v. State, 283 Ga. 521, 524 (3) ( 661 SE2d 557 ) (2008) (citation and punctuation omitted); see Hill v. State, 250 Ga. 277, 283 (4) (a) ( 295 SE2d 518 ) (1982) (improper reference to a defendant’s silence does not automatically require reversal). 6 See Berryhill v. State, 285 Ga. 198, 203 (5) ( 674 SE2d 920 ) (2009) (where trial court gave…
discussed Cited as authority (rule) Harris v. State
Ga. Ct. App. · 2009 · confidence medium
See, e.g., Edge v. State, 275 Ga. 311, 313 (3) ( 567 SE2d 1 ) (2002); Mallory v. State, 271 Ga. 150, 153 (6) ( 517 SE2d 780 ) (1999); Clark v. State, 271 Ga. 6, 9 (4) ( 515 SE2d 155 ) (1999). 8 Kolokouris v. State, 271 Ga. 597, 600 (4) ( 523 SE2d 311 ) (1999). 9 Id. 10 (Citations omitted.) Id. 11 See Haywood v. State, 283 Ga. App. 568, 569 ( 642 SE2d 203 ) (2007) (admission of evidence rests within trial court’s sole discretion). 12 Thomason v. State, 281 Ga. 429, 434 (13) ( 637 SE2d 639 ) (2006). 13 See Hargett v. State, 285 Ga. 82, 86 (3) (e) ( 674 SE2d 261 ) (2009); Bell v. State, 294 Ga.…
discussed Cited as authority (rule) Brooks v. State
Ga. · 2009 · confidence medium
Accord Doggett v. United States, 505 U. S. 647, 652 (112 SC 2686, 120 LE2d 520) (1992); Ruffin v. State, 284 Ga. 52, 55 ( 663 SE2d 189 ) (2008). 4 Ruffin, 284 Ga. at 65 (trial court’s grant or denial of a motion to dismiss the indictment on speedy trial grounds is reviewed for abuse of discretion only). 5 Id. 6 Bowling v. State, 285 Ga. 43, 47 ( 673 SE2d 194 ) (2009). 7 Rivers v. State, 283 Ga. 1, 5 ( 655 SE2d 594 ) (2008). 8 Clark v. State, 271 Ga. 6, 12 ( 515 SE2d 155 ) (1999) (citations omitted). 9 Id.
discussed Cited as authority (rule) Reynolds v. State
Ga. · 2009 · confidence medium
All the Justices concur. 1 Mallory was overruled on other grounds by Chapel v. State, 270 Ga. 151, 154-156 (4) ( 510 SE2d 802 ) (1998), see Clark v. State, 271 Ga. 6, 10 (5) ( 515 SE2d 155 ) (1999). 2 The Court of Appeals additionally cited Glidewell v. State, 279 Ga. App. 114, 123-124 (7) (d) ( 630 SE2d 621 ) (2006), and Roebuck v. State, 261 Ga. App. 679, 684 (4) ( 583 SE2d 523 ) (2003), which applied Morrison .
discussed Cited as authority (rule) Gibson v. State
Ga. Ct. App. · 2008 · confidence medium
Smith, P. J., and Adams, J., concur. 1 (Citation, punctuation and footnote omitted.) Parker v. State, 273 Ga. App. 823, 824 ( 616 SE2d 139 ) (2005). 2 (Citation, punctuation and footnote omitted.) Id. 3 Standfill v. State, 267 Ga. App. 612, 615-616 (2) ( 600 SE2d 695 ) (2004). 4 (Punctuation and footnote omitted.) Id. 5 (Citation omitted.) Pace v. State, 272 Ga. App. 16, 18 (3) ( 611 SE2d 694 ) (2005). 6 Gibson contends that Sigur should have admonished Anderson that the lineup may or may not contain a picture of the perpetrator and that Anderson did not have to pick anyone. 7 See, e.g., Stand…
discussed Cited as authority (rule) In the Interest of J. L. H.
Ga. Ct. App. · 2007 · confidence medium
Miller and Ellington, JJ., concur. 1 In the Interest of A. D., 282 Ga. App. 586, 587 (1) ( 639 SE2d 556 ) (2006). 2 Anderson v. State, 237 Ga. App. 595, 596 (3) ( 516 SE2d 315 ) (1999). 3 Simmons v. State, 285 Ga. App. 129,130-131 ( 645 SE2d 622 ) (2007). 4 Clark v. State, 271 Ga. 6, 12 (7) (a) ( 515 SE2d 155 ) (1999).
examined Cited as authority (rule) Bass v. State (3×) also: Cited "see"
Ga. Ct. App. · 2007 · confidence medium
Carr v. State, 267 Ga. 701, 702-703 ( 482 SE2d 314 ) (1997), overruled on other grounds, Clark v. State, 271 Ga. 6, 10 (5) ( 515 SE2d 155 ) (1999). 278 Ga. 74 ( 597 SE2d 332 ) (2004).
discussed Cited as authority (rule) Brooks v. State
Ga. Ct. App. · 2007 · confidence medium
Howard, Jr., District Attorney, for appellee. 1 See Cargill v. State, 255 Ga. 616, 636 (21) (a) ( 340 SE2d 891 ) (1986) (trial court was not given an opportunity to admonish the prosecuting attorney and give appropriate corrective instructions to the jury where defense counsel failed to object). 2 Mallory v. State, 261 Ga. 625, 630 (5) ( 409 SE2d 839 ) (1991), overruled on other grounds, Clark v. State, 271 Ga. 6, 9-10 (5) ( 515 SE2d 155 ) (1999).
Retrieving the full opinion text from the archive…
Clark
v.
the State; Storey v. the State
S99A0532, S99A0533.
Supreme Court of Georgia.
Apr 12, 1999.
515 S.E.2d 155
William R. Carlisle, Rex B. Abernathy, Frank D. Perry, for appel-| lant (case no. S99A0532)., Larry J. Barkley, for appellant (case no. S99A0533)., Tambra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Jeanne K. Strickland, Assistant Attorney General, for appellee.
Benham.
Cited by 167 opinions  |  Published
Benham, Chief Justice.

Appellants were tried together and convicted of malice murder in connection with the death of 15-year-old Brian Bowling. [1]

[*7] The State presented evidence that Brian suffered a fatal gunshot wound to his right temple while in his bedroom in his parents’ home in rural Floyd County. A .38 caliber handgun was found between Brian’s feet. A neurosurgeon who treated Brian testified that his report of his examination of Brian did not mention finding a powder bum, often left by a gun fired in close proximity to skin, a fact he would have included had he found such a burn. The neurosurgeon also testified that the 45 percent angle of the bullet’s entrance into the victim’s head was “unusual” for a self-inflicted wound, as was the lack of powder burns.

It was undisputed that appellant Cain Joshua Storey, Brian’s best friend, had entered Brian’s room several minutes before the shot was fired, and those members of Brian’s family who had seen Storey before he entered Brian’s room described him as acting strangely and appearing nervous. After the shooting, Storey initially told Brian’s family members that he “didn’t mean to kill him,” and that he “didn’t mean for him to die.” He then said that Brian had shot himself with a gun that Storey had brought to Brian’s room, making Storey feel responsible for Brian’s death. A hearing-and-speech-impaired man visiting the Bowling home the night of the shooting testified that he saw a man he later identified as appellant Darrell Lee Clark running away from the home immediately after the shot was fired. Family members who entered Brian’s room after the shot was fired noticed that a plywood board normally positioned in front of Brian’s broken window was out of place, and testified that Brian and his friends used the window as a means of ingress into and egress from Brian’s room.

Through the testimony of a woman who hosted a party attended by both appellants three and one-half months after Brian’s death, the State presented evidence that Storey had told the witness, in Clark’s presence, that they were members of a gang called “Free Birds” and that they had shot Brian because he knew too much about their burglary of a safe. The party hostess also testified that she had learned in her Storey-Clark conversation that Brian had wanted to leave the gang and its activities. The witness stated that Clark told her he was present when Brian was shot, but that he had not pulled the trigger. The witness further testified that appellants told her the gang had rules promising death as punishment for a member who talked to[*8] police. Through the testimony of Bowling family members and police! investigators, the jury was informed that, a week before he died,[ Brian had talked with police, in Storey’s presence, about the theft of a safe and its contents from Storey’s father. At the time of Brian’sl conversation with the police, appellants Storey and Clark had been! arrested for the theft of the safe, and the investigating officer! described Brian’s statement as useful to the investigation since it I corroborated. Storey’s statement which had implicated Clark as aj participant in the theft of the safe.

1. The evidence summarized above was sufficient to authorize a | rational trier of fact to find beyond a reasonable doubt that appellants were guilty of murder. Jackson v. Virginia, 443 U. S. 307 (99 SC | 2781, 61 LE2d 560) (1979).

2. Appellant Storey contends on appeal that the trial court erred in denying his motion in limine which sought to preclude the State from mentioning in its opening statement appellant Storey’s admission to police that he had accidentally shot Brian.

“[T]he opening statement is of no small significance in that it outlines for the jury what a party intends to show at trial.” Sims v. State, 251 Ga. 877 (3) (311 SE2d 161) (1984). The prosecutor is permitted to use the opening statement to set out what the evidence is expected to show (Massey v. State, 263 Ga. 379 (2) (434 SE2d 467) (1993)), and the remarks should be confined to a summary of what admissible evidence is expected to show. Cargill v. State, 255 Ga. 616 (21) (340 SE2d 891) (1986). It is improper for a prosecutor to refer in the opening statement to a defendant’s incriminating statement prior to a Jackson-Denno hearing on the admissibility of the defendant’s statement. Brown v. State, 250 Ga. 862 (2) (302 SE2d 347) (1983). In the case at bar, the trial court held a Jackson-Denno hearing in response to the motion in limine and ruled, prior to the prosecutor’s opening statement, that Storey’s incriminating statement was admissible. The fact that the trial court sua sponte revisited the issue several days after Storey’s audiotaped confession was played for the jury and ruled the confession inadmissible as the product of a hope of benefit offered by the interviewing investigator, does not affect the fact that, at the time the opening statement was made, Storey’s incriminating statement was admissible evidence expected to be presented to the jury. Compare Alexander v. State, 270 Ga. 346 (2) (509 SE2d 56) (1998) (where prejudicial portions of the prosecutor’s opening statement were never backed up by evidence). The trial court did not err when it denied Storey’s motion in limine.

3. A deputy county coroner who saw the victim’s wound at the hospital and again at a funeral home testified at trial. After he admitted that he had never been allowed to give an expert opinion in court regarding the existence of gunpowder on a body, and that his[*9] ixperience and training did not enable him to look at an object and five a scientific opinion whether gunpowder residue was present Decause examination by microscope was necessary, the trial court leclined to certify the coroner as an expert witness. Instead, the depity coroner was permitted to give his lay opinion, based on his familiarity with the appearance of powder bums on human flesh and his examination of the victim, to testify that he saw no visible powder marks on the victim which meant that the fatal shot had been fired from a distance of at least 12-18" from the victim’s head.

Even if error, the admission of the deputy coroner’s testimony was not reversible error as it is cumulative of the neurosurgeon’s testimony that he found no powder burns on the victim, and of the testimony of the Crime Lab’s firearms expert that gunpowder residue is not found on a target when the shot is fired from a minimum distance of three feet. See Williams v. State, 256 Ga. 655 (2) (352 SE2d 756) (1987).

14. Storey takes issue with the trial court’s admission of evidence concerning the existence of a gang and the punishment for one who told police about the criminal activities of members. The State’s theory in this case was that the victim and appellants were members of a gang and that the victim had been killed for talking to police about a crime members of the gang had committed. The State is authorized to present evidence of a defendant’s motive for allegedly committing a criminal act. Johnson v. State, 260 Ga. 457 (2) (396 SE2d 888) (1990). When that motive directly involves appellants’ membership in an unsavory group, the relevant and material evidence does not become inadmissible because it may incidentally put appellants’ character or reputation into evidence. Mize v. State, 269 Ga. 646 (3) (501 SE2d 219) (1998) (evidence of Ku Klux Klan and National Vastilian Aryan Party membership admissible to establish motive); Earnest v. State, 262 Ga. 494 (1) (422 SE2d 188) (1992) (evidence of satanic cult membership admissible to establish motive).

5. Appellant Clark sees reversible error in the trial court’s admission, under the necessity exception to the statute prohibiting the admission of hearsay evidence (OCGA § 24-3-1), of testimony concerning a statement made by the victim two months before his death. At trial, the victim’s brother-in-law testified that Brian had told him that Brian and appellants were “in a gang called ‘Free Birds’. . . .”

It is undisputed that the witness's testimony as to what Brian purportedly had said was hearsay, the admission of which is limited to specified cases of necessity. OCGA § 24-3-1(b); McKissick v. State, 263 Ga. 188(3), (429 SE2d 655) (1993). The two prerequisites for the admission of hearsay because of necessity are: a finding that the hearsay is necessary, and a finding that the declarant's hearsay statement is surrounded by particularized guarantees of trustworthi[*10] ness. Mallory v. State, 261 Ga. 625(2), (409 SE2d 839) (1991). We recently held in Chapel v. State, 270 Ga. 151(4), (510 SE2d 802) (1998), that the hearsay declarant's death or unavailability, in and of itself, does not satisfy the "necessary" component, implicitly overruling those cases which held otherwise. See, e.g., Holland v. State, 267 Ga. 833(3), (483 SE2d 584) (1997); Carr v. State, 267 Ga. 701(3), (482 SE2d 314) (1997); Jordan v. State, 266 Ga. 499(3), (467 SE2d 568) (1996); Luallen v. State, 266 Ga. 174(5), (465 SE2d 672) (1996); Drane v. State, 265 Ga. 663(1), (461 SE2d 224) (1995); Hayes v. State, 265 Ga. 1(3), (453 SE2d 11) (1995); Hawkins v. State, 264 Ga. 484(2), (448 SE2d 214) (1994); Roper v. State, 263 Ga. 201, (429 SE2d 668) (1993); McKissick v. State, 263 Ga. 188(3), (429 SE2d 655) (1993); Nelson v. State, 262 Ga. 763(3), (426 SE2d 357) (1993); White v. White, 262 Ga. 168, (415 SE2d 467) (1992); Mallory v. State, supra, 261 Ga. 625(2), (409 SE2d 839) (1991). See also Suits v. State, 270 Ga. 362(2), (507 SE2d 751) (1998). To satisfy the requirement that the hearsay be "necessary," in addition to showing the hearsay declarant's unavailability due to death, privilege, or other reason, the proponent of the hearsay must also show "that the statement is relevant to a material fact and that the statement is more probative on that material fact than other evidence that may be procured and offered." Chapel v. State, supra, 270 Ga. at 155, 510 SE2d 802. The trial court's finding in the case at bar that admission of the hearsay was necessary is not error as the State established that the declarant was unavailable due to death; that his purported statement regarding gang membership was relevant to a material fact—the motive for the shooting; and that the most probative evidence of Brian's gang membership was Brian's admission of that fact.

After the completion of the three-pronged examination of whether the hearsay is “necessary,” the trial court must then examine whether the hearsay statement is surrounded by “particularized guarantees of trustworthiness,” that is, whether there is “something present which the law considers a substitute for the oath of the declarant and his cross examination by the party against whom the hearsay is offered.” Higgs v. State, 256 Ga. 606 (3) (351 SE2d 448) (1987). Absent a showing of particular guarantees of trustworthiness or indicia of reliability, the proffered hearsay must be excluded from evidence. Ohio v. Roberts, 448 U. S. 56, 66 (100 SC 2531, 65 LE2d 597) (1980). In the case at bar, the trial court made no inquiry or finding concerning the particularized guarantees of trustworthiness necessary for the admission of the hearsay. However, the erroneous admission of the hearsay amounted to harmless error since establishing Brian’s membership in the gang with appellants was admitted through the testimony of the party hostess. Holland v. State, supra, 267 Ga. at 837. See also Dix v. State, 267 Ga. 429 (2) (479 SE2d 739) (1997).

[*11] 6. Over appellants' objections, the trial court permitted two women who had cleaned the Storey home to testify about the handwritten contents of a composition book they came across during their work, some six to ten weeks before Brian died. The book, on the cover of which was written "Free Birds," contained a list of names denoted as "members," which list included the victim and appellants, and "rules" to cover the behavior of the members. [2] One of the women, a relative of appellant Storey, testified she asked him about the book and he told her it belonged to another young man. The book itself was not offered as evidence, and the purported author/owner of the book did not testify. Appellants contended at trial and now on appeal that the testimony of the women regarding the contents of the writing was not the best evidence of the writing and was inadmissible hearsay.

The “best evidence” rule, embodied in OCGA § 24-5-4, [3] means that, when the contents of a writing are material, the original of the writing must be produced or its absence accounted for. Green, Ga. Law of Evidence (4th ed.), § 100. Secondary evidence of the contents of a writing will be admissible “if an original writing is properly authenticated, its existence and admissibility shown, and its absence accounted for. . . .” Rumsey, Agnor’s Ga. Evid. (3rd ed.), § 13-8. See also OCGA § 24-5-25. In the case at bar, the secondary evidence was admitted without the proponent establishing the existence, admissibility and authentication of the composition book, and without accounting for the absence of the original. Compare Summerour v. State, 211 Ga. App. 65 (1) (438 SE2d 176) (1993). The secondary evidence offered, the testimony of the women, was hearsay (id.), and it was admitted without a determination that it fell within an exception to the rule prohibiting the use of hearsay. The erroneous admission of the women’s testimony concerning the contents of the composition book is, however, made harmless by the testimony of the party hostess concerning gang membership and rules. Holland v. State, supra, 267 Ga. at 837; Dix v. State, supra, 267 Ga. 429 (2).

7. Seven months after Brian's death, a man contacted police and told them his speech-and-hearing-impaired brother had information about the shooting. Using his brother as an interpreter, the impaired witness told the investigating officer he had seen someone run by the[*12] Bowlings' front window immediately after the fatal shot was fired. The officer left the witness and put together a six-photo lineup which he presented to the witness who, without waiting for further instruction from the officer, immediately selected appellant Clark's photo as depicting the man he saw running from the scene of the shooting. The witness later identified Clark at trial through a sworn and qualified sign language interpreter. [4] Appellant Clark contends the photo lineup was impermissibly suggestive, thereby tainting the witness's in-court identification of Clark, and appellant Storey maintains the witness's testimony should have been struck due to his inability to communicate.

[*11] (a) The best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for.
(b) Written evidence of a writing is considered of higher proof them oral evidence

[*12] (a) While the transcript reflects some difficulty in communicating with the witness, the witness answered the questions put to him through the interpreter. The credibility of the evidence elicited through the use of the interpreter was for the jury who observed the witness’s behavior and responses. Hensley v. State, 228 Ga. 501 (1) (186 SE2d 729) (1972). The trial court did not err in denying the motion to strike the testimony of the witness.

(b) It is error to allow testimony concerning a pre-trial identification of a defendant if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification. Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972); Reid v. State, 210 Ga. App. 783 (2) (437 SE2d 646) (1993). The taint which renders an identification procedure impermissibly suggestive must come from the method used in the identification procedure. Sherman v. State, 225 Ga. App. 869 (2) (485 SE2d 557) (1997). An identification procedure is impermissibly suggestive when it leads the witness to an “all but inevitable identification” of the defendant as the perpetrator (Brewer v. State, 219 Ga. App. 16 (6) (463 SE2d 906) (1995)) or, as was held in Heyward v. State, 236 Ga. 526 (224 SE2d 383) (1976), is the equivalent of the authorities telling the witness, “This is our suspect.” See also Hodnett v. State, 269 Ga. 115 (4) (498 SE2d 737) (1998) (appellant did not show lineup was impermissibly suggestive when he failed to demonstrate how the lineup made him stand out from the other lineup participants in an arbitrary or apparent way).

A photocopy of the photo lineup displayed to the witness contains photos of six young, white males with shoulder-length hair and a moustache. Most of appellant Clark's grounds for finding the lineup impermissibly suggestive (the witness's difficulty in communicating and his use during the photo lineup of his brother as an interpreter;[*13] the length of time between the shooting and the witness's report and the identification procedure; his acquaintance with the victim's family who was rumored to believe that Clark was involved in Brian's death) are not assertions that the identification procedure was impermissibly suggestive, but are factors which go to the credibility of the witness, or which go to determining whether there was a substantial likelihood of misidentification, undertaken only after it is determined that the identification procedure was impermissibly suggestive. See Whatley v. State, 266 Ga. 568(2), (468 SE2d 751) (1996) (a court need not consider whether there was a substantial likelihood of misidentification if it determines that the identification procedure was not impermissibly suggestive). See also Taylor v. State, 232 Ga.App. 383, 385, (501 SE2d 875) (1998) (the difficulty a witness has in identifying at trial a suspect the witness selected in a pre-trial lineup goes to the credibility of the witness).

The only allegation which goes to the identification procedure itself is appellant Clark’s assertion that the police officer who put the lineup together told the brother of the witness that he was going to put appellant Clark’s photo in the lineup. The factual premise for the assertion is based on answers to defense counsel’s questioning of the officer who presented the lineup to the witness. After the officer testified on direct examination that he had not indicated to either the witness or his brother that a photo of “the individual” was in the lineup, the officer several times gave an affirmative response to defense counsel’s questions that he told the witness and his brother that he “would go fix a lineup with [appellant] Clark’s picture in it, and . . . bring it back and present it to them.” On re-direct and recross-examination, the officer could not recall giving the brothers the name of anyone he was going to include in the lineup.

Even if we were to assume from the officer’s unclear testimony that he did mention appellant by name to the witness’s brother who, in turn, relayed the information to the witness (there being no evidence of the latter fact), we find no error in the admission of the identification testimony. A police officer displaying a lineup to a victim or witness should avoid telling the person that the lineup contains the police officer’s suspect. Mitchell v. State, 236 Ga. 251 (2) (223 SE2d 650) (1976); Campbell v. State, 228 Ga. App. 258 (2) (b) (491 SE2d 477) (1997); Reid v. State, 210 Ga. App. 783 (2) (437 SE2d 646) (1993). However, such a statement does not make a lineup impermissibly suggestive since the very fact that a lineup is being conducted suggests that a suspect is contained therein. Id. Accordingly, testimony concerning the pre-trial identification was not subject to suppression, and the in-court identification of appellant Clark by the witness was not the result of an impermissibly suggestive pre-trial identification procedure.

[*14] Decided April 12, 1999. William R. Carlisle, Rex B. Abernathy, Frank D. Perry, for appel-| lant (case no. S99A0532). Larry J. Barkley, for appellant (case no. S99A0533). Tambra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Jeanne K. Strickland, Assistant Attorney General, for appellee.

Judgments affirmed.

All the Justices concur.
1

The victim suffered a gunshot wound to the head on October 18, 1996, and died the next day. In an indictment returned August 8, 1997, appellants were charged with malice murder and conspiracy to commit murder. Appellant Storey was additionally charged with involuntary manslaughter. Their joint trial commenced on January 12,1998, and concluded on January 19 with the jury’s return of guilty verdicts on the murder and conspiracy[*7] charges. Appellants were sentenced to life imprisonment for the murder conviction on January 27. Clark filed a motion for new trial on February 10, and amended it on September-30. Storey filed a motion for new trial on February 24 and amended it on October 5. The trial court denied both amended motions on October 28, and appellants filed separate notices of appeal on November 30. Their appeals were docketed in this Court on January 6, 1999, and oral argument was heard on March 15,1999.

2

Both women testified to the substance of some of the “rules” each saw listed in the composition book: “Never talk to [police]. Always stick up for your brother. Never do drugs. [I]f a brother is caught narcing on .. . another brother, the punishment’s death.”

4

OCGA § 24-9-4 provides that “[n]o physical defect in any of the senses shall incapacitate a witness. An interpreter may explain the evidence of such witness.”