Thomas v. State, 485 S.E.2d 783 (Ga. 1997). · Go Syfert
Thomas v. State, 485 S.E.2d 783 (Ga. 1997). Cases Citing This Book View Copy Cite
“he mere fact that there was no written waiver of miranda rights or other 4 miranda v. arizona, 384 u. s. 436 ( 86 sct 1602 , 16 le2d 694) (1966). 5 written record of such waiver did not render his statement inadmissible.”
171 citation events (108 in the last 25 years) across 3 distinct courts.
Strongest positive: Andrews v. State (ga, 2018-01-29)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (quoted) Andrews v. State (2×) also: Cited "see"
Ga. · 2018 · signal: see · quote attribution · 1 verbatim quote · confidence high
he mere fact that there was no written waiver of miranda rights or other written record of such waiver did not render his statement inadmissible.
examined Cited as authority (quoted) Andrews v. State (2×) also: Cited "see"
Ga. · 2018 · signal: see · quote attribution · 1 verbatim quote · confidence high
he mere fact that there was no written waiver of miranda rights or other 4 miranda v. arizona, 384 u. s. 436 ( 86 sct 1602 , 16 le2d 694) (1966). 5 written record of such waiver did not render his statement inadmissible.
discussed Cited as authority (quoted) Bradshaw v. State (2×) also: Cited "see"
Ga. · 2016 · signal: see · quote attribution · 1 verbatim quote · confidence high
the mere fact that there was no written waiver of miranda rights or other written record of such waiver did not render his statement inadmissible
discussed Cited as authority (quoted) Brown v. State (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2003 · quote attribution · 1 verbatim quote · confidence low
for the admission of a co-defendant's statements to constitute a bruton violation the statements standing alone must clearly inculpate the defendant.
discussed Cited as authority (rule) Peter Ulbrich v. State
Ga. Ct. App. · 2022 · confidence medium
See Sutton v. State, 295 Ga. 350, 353 (3) ( 759 SE2d 846 ) (2014) (“Bruton is not implicated where the statement does not facially incriminate appellant and only becomes incriminating when linked with other evidence introduced at trial.”) (citation and punctuation omitted); Shelton, 350 Ga. App. at 777 (1); Thomas v. State, 268 Ga. 135, 137-138 (6) ( 485 SE2d 783 ) (1997) (co-defendant’s custodial statement that defendant had purchased a gun did not directly inculpate defendant convicted of murder and aggravated assault).
discussed Cited as authority (rule) Newman v. State
Ga. · 2020 · signal: cf. · confidence medium
Cf. Thomas v. State, 268 Ga. 135, 137 (4) ( 485 SE2d 783 ) (1997) (The prosecutor did not make improper remarks during opening statement where “references in opening statement and closing argument to Thomas and his co-defendant as ‘partners in crime,’ and ‘gangsters,’ who committed a cowardly, despicable act, were reasonable inferences from the evidence.”).
discussed Cited as authority (rule) Taylor v. State
Ga. · 2018 · confidence medium
To constitute a Bruton violation, a co-defendant’s statement “standing alone must clearly inculpate the defendant.” (Citations omitted; emphasis in original.) Thomas v. State, 268 Ga. 135, 137 (6) ( 485 SE2d 783 ) (1997). [T]his Court and others have held that Bruton only excludes statements by a non-testifying co-defendant that directly inculpate the defendant, and that Bruton is not violated if a co-defendant’s statement does not incriminate the defendant on its face and only becomes incriminating when linked with other evidence introduced at trial.
discussed Cited as authority (rule) State v. Smith
Ga. · 2018 · confidence medium
See Moss v. State, 275 Ga. 96, 98-99 (2) ( 561 SE2d 382 ) (2002) (no Bruton violation where statements by co-defendant did not directly inculpate defendant and only later became incriminating when linked with other evidence at trial); Thomas v. State, 268 Ga. 135, 137-138 (6) ( 485 SE2d 783 ) (1997) (no Bruton violation when co-defendant’s statement, that Thomas had bought gun later determined to be murder weapon, did not clearly inculpate defendant).
discussed Cited as authority (rule) State v. SMITH
Ga. · 2018 · confidence medium
See Moss v. State, 275 Ga. 96, 98-99 (2) ( 561 SE2d 382 ) (2002) (no Bruton violation where statements by co-defendant did not directly inculpate defendant and only later became incriminating when linked with other evidence at trial); Thomas v. State, 268 Ga. 135, 137-138 (6) ( 485 SE2d 783 ) (1997) (no Bruton violation when co-defendant’s statement, that Thomas had bought gun later determined to be murder weapon, did not clearly inculpate defendant).
discussed Cited as authority (rule) Hudson v. State
Ga. Ct. App. · 2014 · confidence medium
However, “[t]he failure to introduce a certified copy of an impeaching prior conviction is subject to a best evidence’ objection... and such objection may be waived.” (Citation omitted.) Thomas v. State, 268 Ga. 135, 140 (13) ( 485 SE2d 783 ) (1997).
discussed Cited as authority (rule) Johnny William Hudson v. State
Ga. Ct. App. · 2014 · confidence medium
However, “[t]he failure to introduce a certified copy of an impeaching prior conviction is subject to a ‘best evidence’ objection . . . and such objection may be waived.” (Citation omitted.) Thomas v. State, 268 Ga. 135, 140 (13) ( 485 SE2d 783 ) (1997).
cited Cited as authority (rule) Coleman v. State
Ga. Ct. App. · 2014 · confidence medium
See also Daniel v. State, 285 Ga. 406, 408 (3) (b) ( 677 SE2d 120 ) (2009); Thomas v. State, 268 Ga. 135, 137-138 (6) ( 485 SE2d 783 ) (1997). 4.
cited Cited as authority (rule) Jemal David Coleman v. State
Ga. Ct. App. · 2014 · confidence medium
See also Daniel v. State, 285 Ga. 406, 408 (3) (b) ( 677 SE2d 120 ) (2009); Thomas v. State, 268 Ga. 135, 137-138 (6) ( 485 SE2d 783 ) (1997). 4.
cited Cited as authority (rule) Lane v. State
Ga. Ct. App. · 2013 · confidence medium
See also Dulcio v. State, 292 Ga. 645, 649 ( 740 SE2d 574 ) (2013); Thomas v. State, 268 Ga. 135, 137-138 ( 485 SE2d 783 ) (1997).
cited Cited as authority (rule) Merkeith Lane v. State
Ga. Ct. App. · 2013 · confidence medium
See also Dulcio v. State, 292 Ga. 645, 649 ( 740 SE2d 574 ) (2013); Thomas v. State, 268 Ga. 135, 137-138 ( 485 SE2d 783 ) (1997).
discussed Cited as authority (rule) Perkins v. State
Ala. Crim. App. · 2012 · confidence medium
“In the absence of contrary evidence, defense counsel’s actions are presumed to be part of trial strategy.” ’ (quoting Thomas v. State, 268 Ga. 135, 139-40 , 485 S.E.2d 783, 790 (1997))).” 962 So.2d at 285-86 .
examined Cited as authority (rule) Nicole Joyner v. State (3×) also: Cited "see"
Ga. Ct. App. · 2012 · confidence medium
Thus, Joyner’s statement did not violate Bruton.18 Given the foregoing circumstances, and 17 Moss, 275 Ga. at 98 (2); see Thomas v. State, 268 Ga. 135, 137-38 (6) ( 485 SE2d 783 ) (1997) (“For the admission of a co-defendant’s statements to constitute a Bruton violation the statements standing alone must clearly inculpate the defendant.” (punctuation omitted)); Garlington v. State, 268 Ga. App. 264, 267-68 (1) (a) ( 601 SE2d 793 ) (2004). 18 See Moss, 275 Ga. at 99 (2) (holding that admission of non-testifying co- defendant’s statement to police that murder defendant came to his apar…
examined Cited as authority (rule) Manhertz v. State (3×) also: Cited "see"
Ga. Ct. App. · 2012 · confidence medium
See Moss, 275 Ga. at 99 (2) (holding that admission of nontestifying oo-defendant’s statement to police that murder defendant came to his apartment and went in bathroom and stayed there for awhile did not violate Bruton rule because statement, standing alone, did not clearly incriminate defendant but only became incriminating when linked with other evidence); Thomas, 268 Ga. at 137-38 (6) (holding that co-defendant’s statement, that at time of defendant’s arrest for kidnapping, which was unrelated to shootings for which defendant was now on trial, defendant had a pistol, which he had bou…
examined Cited as authority (rule) Kirk Manhertz v. State (3×) also: Cited "see"
Ga. Ct. App. · 2012 · confidence medium
Thus, Joyner’s statement did not violate Bruton.18 Given the foregoing circumstances, and 17 Moss, 275 Ga. at 98 (2); see Thomas v. State, 268 Ga. 135, 137-38 (6) ( 485 SE2d 783 ) (1997) (“For the admission of a co-defendant’s statements to constitute a Bruton violation the statements standing alone must clearly inculpate the defendant.” (punctuation omitted)); Garlington v. State, 268 Ga. App. 264, 267-68 (1) (a) ( 601 SE2d 793 ) (2004). 18 See Moss, 275 Ga. at 99 (2) (holding that admission of non-testifying co- defendant’s statement to police that murder defendant came to his apar…
discussed Cited as authority (rule) Henderson v. State (2×)
Ga. Ct. App. · 2010 · confidence medium
The prosecutor went on to acknowledge that the police did not do a thorough job of investigating and developing the evidence in the case. “[T]he prosecutor’s attempts to discredit certain contentions of defense counsel do not justify the grant of a new trial. [Cits.]” Thomas v. State, 268 Ga. 135, 137 (4) ( 485 SE2d 783 ) (1997).
discussed Cited as authority (rule) Nelms v. State (2×)
Ga. · 2009 · confidence medium
Daniel, supra at 408 (3) (b); Thomas v. State, 268 Ga. 135, 137 (6) ( 485 SE2d 783 ) (1997).
discussed Cited as authority (rule) Daniel v. State
Ga. · 2009 · confidence medium
See id.; Thomas v. State, 268 Ga. 135, 137 (6) ( 485 SE2d 783 ) (1997). (c) Marcus also contends the court erred by denying his motion for severance because the State’s use of Warren’s statement to police violated his Sixth Amendment right to confrontation.
discussed Cited as authority (rule) Carter v. State
Ga. · 2009 · confidence medium
“For the admission of a co-defendant’s statements to constitute a Bruton violation . . . the statements standing alone must clearly inculpate the defendant.” (Citations and punctuation omitted.) Thomas v. State, 268 Ga. 135, 137 (6) ( 485 SE2d 783 ) (1997).
discussed Cited as authority (rule) Metz v. State
Ga. · 2008 · confidence medium
“For the admission of a co-defendant’s statements to constitute a Bruton violation the statements standing alone must clearly inculpate the defendant.” (Citations and punctuation omitted.) Thomas v. State, 268 Ga. 135, 137 (6) ( 485 SE2d 783 ) (1997).
discussed Cited as authority (rule) Smith v. State
Ga. · 2007 · confidence medium
But the contention overlooks the fact that there was other evidence at trial from which the jury could reasonably infer that Smith fancied himself as part of the “gangster experience.” Thomas v. State, 268 Ga. 135, 137 (4) ( 485 SE2d 783 ) (1997).
discussed Cited as authority (rule) Burgess v. State
Ala. Crim. App. · 2005 · confidence medium
Ct. 122, 132, 799 N.E.2d 1267, 1277 (2003) ("We hold that it was a reasonable tactical decision not to request a limiting instruction, as such instructions typically highlight the permissible uses of evidence, as well as the limitations."); Hudson v. State, 277 Ga. 581, 585 , 591 S.E.2d 807, 811 (2004) ("Hudson did not question his trial counsel regarding the reasons why counsel chose not to move for limiting instructions regarding the jury's consideration of a certified copy of Hudson's prior felony conviction. `In the absence of contrary evidence, defense counsel's actions are presumed to be…
cited Cited as authority (rule) Brown v. State
Ga. · 2004 · confidence medium
Thomas v. State, 268 Ga. 135, 136 (3) ( 485 SE2d 783 ) (1997). 9.
discussed Cited as authority (rule) Garlington v. State
Ga. Ct. App. · 2004 · confidence medium
See also Sims v. State, 243 Ga. 83, 85 (2) ( 252 SE2d 501 ) (1979) (a “party will not be heard to complain of the violation of another person’s constitutional rights”). 7 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). 8 (Citation omitted.) Sims, supra at 84 (1). 9 (Citation and punctuation omitted; emphasis in original.) Wallace v. State, 267 Ga. App. 801, 805 (4) ( 600 SE2d 808 ) (2004). 10 See Thomas v. State, 268 Ga. 135, 138 (6) ( 485 SE2d 783 ) (1997) (co-defendant’s statement, that the defendant had the gun used in the crimes charged but had not fired it, standing alone, was not…
discussed Cited as authority (rule) Wallace v. State
Ga. Ct. App. · 2004 · confidence medium
In order “[f]or the admission of a co-defendant’s statements to constitute a Bruton violation],] the statements standing alone must clearly inculpate the defendant.” (Citation and punctuation omitted; emphasis in original.) Thomas v. State, 268 Ga. 135, 137 (6) ( 485 SE2d 783 ) (1997).
discussed Cited as authority (rule) Hudson v. State (2×) also: Cited "see"
Ga. · 2004 · confidence medium
“In the absence of contrary evidence, defense counsel’s actions are presumed to be part of trial strategy. [Cits.]” Thomas v. State, 268 Ga. 135, 139-140 (12) ( 485 SE2d 783 ) (1997).
cited Cited as authority (rule) Smith v. State
Ga. Ct. App. · 2003 · confidence medium
Thomas v. State, 268 Ga. 135, 139 (10) ( 485 SE2d 783 ) (1997).
discussed Cited as authority (rule) Kilpatrick v. State
Ga. · 2003 · confidence medium
Appellant timely filed a notice of appeal on March 1, 2002, the appeal was docketed on May 10, 2002, and submitted for decision without oral argument on July 1, 2002. 2 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 3 Strickland v. Washington, 466 U. S. 668, 687-688 (104 SC 2052, 80 LE2d 674) (1984). 4 See Gibson v. State, 272 Ga. 801, 804 ( 537 SE2d 72 ) (2000). 5 Ledford v. State, 264 Ga. 60, 66 ( 439 SE2d 917 ) (1994). 6 Tharpe v. State, 262 Ga. 110, 116 ( 416 SE2d 78 ) (1992) (Benham, J., concurring). 7 See Jones v. State, 273 Ga. 231, 234 ( 539 SE2d 154 ) (2000). 8 S…
discussed Cited as authority (rule) Mika v. State
Ga. Ct. App. · 2002 · confidence medium
“In the absence of contrary evidence, defense counsel’s actions are presumed to be part of trial strategy. . . . [Mika] has shown nothing that would demonstrate that his trial counsel failed to exercise reasonable professional judgment in his handling of the case.” (Citation and punctuation omitted.) Thomas v. State, 268 Ga. 135, 139-140 ( 485 SE2d 783 ) (1997).
discussed Cited as authority (rule) Ogle v. State
Ga. Ct. App. · 2002 · confidence medium
Smith, P. J, and Ellington, J, concur. 1 Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). 2 (Citations and punctuation omitted.) Thomas v. State, 268 Ga. 135, 139 (10) ( 485 SE2d 783 ) (1997). 3 (Footnote omitted.) Davis v. State, 272 Ga. 327, 330 (4) ( 528 SE2d 800 ) (2000). 4 Absent a Miranda violation, Ogle’s statement was not limited to use as impeachment evidence only, as Ogle argues by brief.
discussed Cited as authority (rule) Johnson v. State
Ga. Ct. App. · 2002 · confidence medium
Absent contrary evidence, defense counsel’s actions are presumed to be part of trial strategy, Thomas v. State, 268 Ga. 135, 139 (12) ( 485 SE2d 783 ) (1997); Mc-Clarity, supra, 234 Ga. App. at 351 (3), errors in which do not constitute ineffective assistance.
discussed Cited as authority (rule) Moss v. State
Ga. · 2002 · confidence medium
Scott’s appeal was docketed in this Court on May 14, 2001, and was orally argued on September 18, 2001. 2 Butler v. State, 270 Ga. 441, 446 (4) ( 511 SE2d 180 ) (1999). 3 Butler, 270 Ga. at 446 . 4 Heard v. State, 274 Ga. 196, 199 ( 552 SE2d 818 ) (2001); Gee v. State, 261 Ga. 178, 179 (3) ( 402 SE2d 719 ) (1991). 5 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). 6 See Richardson v. Marsh, 481 U. S. 200, 208 (107 SC 1702, 95 LE2d 176) (1987); United States v. Taylor, 186 F3d 1332, 1335-1336 (11th Cir. 1999). 7 Richardson, 481 U. S. at 206 . 8 Richardson, 481 U. S. at 207 . 9 Richardson, 481 …
discussed Cited as authority (rule) Thomas v. State
Ga. Ct. App. · 2001 · confidence medium
The transcript of that hearing, if any, is not included in the record on appeal. 8 (Citation omitted.) Rupert v. State, 239 Ga. App. 128, 131 (1) (a) ( 520 SE2d 695 ) (1999). 9 (Citation and punctuation omitted.) Anthony v. State, 236 Ga. App. 257, 259 (2) ( 511 SE2d 612 ) (1999). 10 Turner v. State, 269 Ga. 392, 393-394 ( 497 SE2d 560 ) (1998). 11 See Thomas v. State, 268 Ga. 135, 141 (18) ( 485 SE2d 783 ) (1997) (there was no reversible error where one of the jurors was omitted when the jury was polled, but defense counsel failed to object). 12 We note that Thomas does not challenge the volu…
cited Cited as authority (rule) Cook v. State
Ga. · 2001 · confidence medium
“Thus, it is not necessary to address specifically and individually every instance of alleged ineffective assistance.” Thomas v. State, 268 Ga. 135, 140 (12) ( 485 SE2d 783 ) (1997).
cited Cited as authority (rule) Givens v. State
Ga. · 2001 · confidence medium
Thomas v. State, 268 Ga. 135, 137 (5) ( 485 SE2d 783 ) (1997); Fargason v. State, 266 Ga. 463, 465 (3) ( 467 SE2d 551 ) (1996).
discussed Cited as authority (rule) Johnson v. State
Ga. Ct. App. · 2000 · confidence medium
Smith, P. J., and Phipps, J., concur. 1 Chadwick v. State, 236 Ga. App. 199, 201-202 (2) ( 511 SE2d 286 ) (1999). 2 Id.; Roberson v. State, 241 Ga. App. 226, 230 (2) ( 526 SE2d 428 ) (1999) (physical precedent only); Skillern v. State, 240 Ga. App. 34, 35 (2) ( 521 SE2d 844 ) (1999). 3 See Roberson, supra; Thomas v. State, 268 Ga. 135, 141 (17) ( 485 SE2d 783 ) (1997).
discussed Cited as authority (rule) Rice v. State
Ga. Ct. App. · 2000 · confidence medium
“Therefore, the giving of the entire Code section on aggravated [child molestation] did not mislead the jury or violate [Rice’s] due process rights.” Thomas v. State, 268 Ga. 135, 141 (17) ( 485 SE2d 783 ) (1997). (b) Under Count 4, Rice was indicted for aggravated sodomy in that he “did unlawfully then and there perform and submit to a sexual act involving the sexual organs of the accused and the anus of another person, to-wit: [the victim] . . . said act being done with force and against the will of said other person.” In support of this count, the State offered the outcry testimon…
discussed Cited as authority (rule) Gilliam v. State
Ga. Ct. App. · 1999 · confidence medium
Compare Fourth Edition of Kurtz 892-893. 4 261 Ga. at 747 (3). 5 145 Ga. App. at 392 . 6 143 Ga. App. 791 (1) ( 240 SE2d 142 ) (1977). 7 (Citations and punctuation omitted.) Childs v. State, 257 Ga. 243, 253 (17) ( 357 SE2d 48 ) (1987); see Hunley v. State, 227 Ga. App. 234, 235 (1) ( 488 SE2d 716 ) (1997) (error to instruct jury aggravated assault included assault with intent to murder when indictment only charged assault with a deadly weapon; modicum of evidence showed possible murderous intent); Levin v. State, 222 Ga. App. 123, 127 (6) ( 473 SE2d 582 ) (1996) (“we are constrained to find…
cited Cited as authority (rule) Gough v. State
Ga. Ct. App. · 1999 · confidence medium
Thomas v. State, 268 Ga. 135, 141 (17) ( 485 SE2d 783 ) (1997).
discussed Cited as authority (rule) Alexander v. State (2×)
Ga. · 1998 · confidence medium
Thomas v. State, 268 Ga. 135, 137 (4) ( 485 SE2d 783 ) (1997); Freeman v. State, 130 Ga. App. 718, 720 (1) ( 204 SE2d 445 ) (1974).
discussed Cited as authority (rule) Moses v. State
Ga. · 1998 · confidence medium
The case was submitted for decision on briefs on April 27,1998. 2 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 3 See Willingham v. State, 268 Ga. 64, 65 ( 485 SE2d 735 ) (1997); Sterling v. State, 267 Ga. 209, 212-213 ( 477 SE2d 807 ) (1996). 4 Thomas v. State, 268 Ga. 135, 141 (17) ( 485 SE2d 783 ) (1997). 5 Id. 6 Id. 7 248 Ga. 682, 683 ( 285 SE2d 533 ) (1982). 8 Id. at 683 . 9 Id. at 683 , quoting OCGA § 16-5-1 (b). 10 Id. at 683. 11 Holcomb v. State, 268 Ga. 100,105 (6) ( 485 SE2d 192 ) (1997); Martin v. State, 258 Ga. 300, 301-302 ( 368 SE2d 515 ) (1988).
cited Cited as authority (rule) Nichols v. State
Ga. Ct. App. · 1998 · confidence medium
Thomas v. State, 268 Ga. 135, 141 (18) ( 485 SE2d 783 ) (1997).
discussed Cited as authority (rule) Stevenson v. State
Ga. Ct. App. · 1998 · confidence medium
Thomas v. State, 268 Ga. 135, 141 (17) ( 485 SE2d 783 ) (1997); Harwell v. State, 231 Ga. App. 154, 155-158 (3) ( 497 SE2d 672 ) (1998); Blige v. State, 208 Ga. App. 851 (2) ( 432 SE2d 574 ) (1993), aff’d, 264 Ga. 166 ( 441 SE2d 752 ) (1994). (c) The fifth enumeration is that the court erred in not specifically charging the jury that Stevenson’s knowledge that the persons assaulted were police officers was an essential element of the crime as required by Bundren v. State, 247 Ga. 180, 181 (2) ( 274 SE2d 455 ) (1981).
cited Cited as authority (rule) McClarity v. State
Ga. Ct. App. · 1998 · confidence medium
(Citations omitted.) Thomas v. State, 268 Ga. 135, 139 (12) ( 485 SE2d 783 ) (1997); Brewer v. State, 219 Ga. App. 16, 21 (7) ( 463 SE2d 906 ) (1995) (same).
discussed Cited as authority (rule) McClarity v. State
Ga. Ct. App. · 1998 · confidence medium
NOTES [1] (Citations omitted.) Thaxton v. State, 260 Ga. 141, 142 (2), 390 S.E.2d 841 (1990). [2] Hayes v. State, 203 Ga.App. 143, 144 (2), 416 S.E.2d 347 (1992). [3] Mallory v. State, 225 Ga.App. 418, 422 (4), 483 S.E.2d 907 (1997). [4] Thaxton, supra, 260 Ga. at 142 (2), 390 S.E.2d 841 . [5] Davis v. State, 229 Ga.App. 787, 789 (2), 494 S.E.2d 702 (1997); see Smith v. State, 268 Ga. 42, 43 (3), 485 S.E.2d 189 (1997) (similar transaction issue waived if defendant fails to object at trial). [6] Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284 , 260 S.E.2d 20 (1979); Stephens v. Dept. of Transp…
examined Cited as authority (rule) Harwell v. State (7×) also: Cited "see"
Ga. Ct. App. · 1998 · confidence medium
Thomas v. State, 268 Ga. 135, 141 ( 485 SE2d 783 ) (1997); Chandler v. State, 213 Ga. App. 46, 47 ( 443 SE2d 679 ) (1994); Moore v. State, 207 Ga. App. 892, 894-895 ( 429 SE2d 335 ) (1993).
Thomas
v.
the State
S97A0722.
Supreme Court of Georgia.
Jun 9, 1997.
485 S.E.2d 783
Elaine T. McGruder, for appellant., Paul L. Howard, District Attorney, Carl P. Greenberg, Assistant District Attorney, Thurbert E. Baker, Attorney General, Deborah L. Gale, Assistant Attorney General, for appellee.
Carley.
Cited by 78 opinions  |  Published
4 passages pin-cited by 4 cases
Pinpoint authority: #14,345 of 633,719
Citer courts: Supreme Court of Georgia (3) · Court of Appeals of Georgia (1)
Carley, Justice.

A jury found Reginald D. Thomas guilty of one count of malice murder and two counts of aggravated assault. The trial court entered judgments of conviction on the jury verdicts. For the murder, the court sentenced Thomas to life imprisonment and, for the aggravated assaults, it sentenced him to two consecutive terms of twenty years. Thomas appeals. [1]

1. Construed most favorably for the State, the evidence is as follows: Thomas asked Delores Foster to rent a vehicle and, after co-defendant Damian Owens paid her, she rented a Mitsubishi for them. Subsequently, David Colbert and his companions exchanged words with some men in a Mitsubishi who threatened to shoot and made menacing gestures. However, someone in Colbert’s group shot at the Mitsubishi first and, shortly thereafter, Thomas sought medical attention at a hospital for a gunshot wound to his arm. At the hospital, Thomas gave a false name and told a police officer that he had been caught in a crossfire while riding in the rented vehicle.[*136] Within an hour after Thomas left the hospital, someone fired about twelve rounds from a nine-millimeter pistol at a vehicle occupied by Colbert and his two companions. Colbert was killed and his two companions were injured. When Ms. Foster, who rented the Mitsubishi for Thomas and Owens, inquired about the bullet holes and other damage to the vehicle, Owens told her that “they” were caught in a crossfire. Just over a week later, Sir George Candy Franklin was driving a car with Thomas and Owens in the back seat and an older man in the front seat. When Franklin exited the car at a convenience store, he told East Point Police Officer Thomas Cherry that Thomas and Owens had kidnapped him at gunpoint. After asking Owens to exit the car, Officer Cherry removed a .357-caliber pistol from under Owens’ belt. A nine-millimeter pistol was found under the car seat, but near the rear. The nine-millimeter pistol was turned over to the firearms examiner who determined that the bullets which caused the death of Colbert and injured Colbert’s two companions were fired from that pistol. Owens admitted to police that he owned the gun which Officer Cherry took from him, but Owens denied possession of the nine-millimeter pistol.

Thomas contends that the nine-millimeter pistol did not connect him to the crimes because there were other persons in the car driven by Franklin. However, Owens was the only other person in the car who had any apparent motive to commit the crimes and Owens was armed with another gun. Taken as a whole, the evidence is sufficient to authorize a jury to find Thomas guilty as a party to the crimes beyond a reasonable doubt and to the exclusion of every reasonable hypothesis save that of guilt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Trice v. State, 266 Ga. 102, 103 (1) (464 SE2d 205) (1995); Jenkins v. State, 201 Ga. App. 395, 396-397 (1) (411 SE2d 122) (1991).

2. Thomas urges that the prosecutor engaged in misconduct because, before the trial started, he had reason to believe that two other people were actually the shooters. It is immaterial whether Thomas was the actual shooter if he was, in fact, a party to the shootings. As discussed in Division 1, the evidence of Thomas’ guilt as a party to the crimes was sufficient. There is no showing that any of the evidence used to establish Thomas’ guilt was perjured. See Johnson v. State, 258 Ga. 506, 508 (4) (371 SE2d 396) (1988).

3. Thomas contends that the prosecutor also engaged in misconduct because, during his opening statement, he referred to the nine-millimeter pistol as stolen but subsequently presented no evidence in that regard. Thomas neither objected at trial nor sought a curative instruction. Poteat v. State, 251 Ga. 87, 91 (6) (303 SE2d 452) (1983); Smith v. State, 221 Ga. App. 428 (3) (472 SE2d 4) (1996). Instead, it was Thomas himself who elicited testimony that he initially was[*137] charged with theft by receiving stolen property based on his possession of the pistol, but that the indictment subsequently was dismissed.

Thomas further urges that, although the prosecutor said that someone would testify as to whether the District Attorney’s office intended to charge Thomas with kidnapping, no one so testified. The record shows that the prosecutor did not state what he expected the testimony to prove and, furthermore, that the prosecutor did present evidence that Franklin claimed that he had been kidnapped. Thus, we find no error.

4. Thomas argues that the prosecutor made numerous unfair and improper remarks. The prosecutor’s references in opening statement and closing argument to Thomas and his co-defendant as “partners in crime,” and “gangsters,” who committed a cowardly, despicable act, were reasonable inferences from the evidence. Simmons v. State, 266 Ga. 223, 228 (6) (b) (466 SE2d 205) (1996); Pinion v. State, 225 Ga. 36, 38 (5) (165 SE2d 708) (1969). Likewise, the prosecutor’s attempts to discredit certain contentions of defense counsel do not justify the grant of a new trial. Port Royal &c. R. Co. v. Davis, 95 Ga. 292, 301 (5) (22 SE 833) (1895). Compare Estep v. State, 129 Ga. App. 909, 915-916 (8) (201 SE2d 809) (1973).

5. Thomas enumerates as error the trial court’s admission of evidence that he had been shot earlier on the night in question. Thomas urges that this was evidence of a similar transaction or prior difficulty which the trial court should not have admitted without the requisite notice and hearing. Evidence that an accused is the victim, rather than the perpetrator, of a previous assault cannot raise an inference that he or she “is more likely to have committed the crime for which he is on trial.” Barrett v. State, 263 Ga. 533, 534 (2) (436 SE2d 480) (1993). Thus, evidence that Thomas had been shot is clearly not traditional evidence of similar transactions or prior difficulties which would require notice and a hearing prior to its admission. Furthermore, the evidence that Thomas had been the victim of a shooting was relevant to his motive for the crimes charged and was, therefore, admissible. Fargason v. State, 266 Ga. 463, 465 (3) (467 SE2d 551) (1996); Hull v. State, 265 Ga. 757, 760 (5) (462 SE2d 596) (1995).

6. Thomas contends that the denial of his motion for severance and the admission of Owens’ statement were erroneous under Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). “ ‘ “For the admission of a co-defendant’s statements to constitute a Bruton violation . . . the statements standing alone must clearly inculpate the defendant. (Cits.)” [Cit.]’ [Cit.]” (Emphasis in original.) Owen v. State, 266 Ga. 312, 314 (4) (467 SE2d 325) (1996). The relevant portion of Owens’ statement is that, at the time of the arrest for[*138] the unrelated kidnapping of Franklin, Thomas had a nine-millimeter gun that he had bought, but which he had not fired, as far as Owens knew. Owens’ statement that he thought Thomas had bought, but had not fired the gun, standing alone, did not clearly inculpate Thomas, and there is no Bruton error. See Wilkins v. State, 266 Ga. 278, 279 (2) (a) (466 SE2d 592) (1996); Bailey v. State, 203 Ga. App. 133, 137 (3) (416 SE2d 151) (1992).

7. Thomas contends that the trial court erred by failing to grant a mistrial or give curative instructions when the prosecutor called Franklin as a witness, knowing that Franklin would invoke the Fifth Amendment. The record shows that Franklin asserted his right to remain silent on one question only and later changed his mind. There is no showing that the prosecutor knew that Franklin would invoke the Fifth Amendment, and defense counsel argued only that the prosecutor should have known that Franklin would do so. Defense counsel undertook a thorough cross-examination. Under these circumstances, we find no reversible error. Parrott v. State, 206 Ga. App. 829, 832-833 (2) (427 SE2d 276) (1992); Bowen v. State, 194 Ga. App. 80, 81 (2) (389 SE2d 516) (1989). See also Bolar v. State, 216 Ga. App. 195, 196 (2) (453 SE2d 790) (1995). Compare Lawrence v. State, 257 Ga. 423, 424 (3) (360 SE2d 716) (1987).

8. Thomas enumerates as error the trial court’s admission of the statement he made following his arrest for kidnapping. Thomas’ contention that his statement was inadmissible because of the State’s non-compliance with former OCGA § 17-7-210 was not raised in the trial court and will not, therefore, be considered on appeal. Huguley v. State, 253 Ga. 709, 710 (2) (324 SE2d 729) (1985). With regard to the objection that Thomas did raise below, the mere fact that there was no written waiver of Miranda rights or other written record of such waiver did not render his statement inadmissible. Mitchell v. State, 254 Ga. 353, 355 (7) (a) (329 SE2d 481) (1985); Barrs v. State, 202 Ga. App. 520, 521 (3) (414 SE2d 733) (1992). Accordingly, we find no error.

9. Franklin’s testimony concerning the circumstances of Thomas’ arrest for kidnapping was admissible, “ ‘even though it may incidentally show the commission of another crime. (Cits.)’ [Cits.]” Moulder v. State, 207 Ga. App. 335, 337 (6) (427 SE2d 793) (1993). See also Smith v. State, 265 Ga. 706, 707 (462 SE2d 369) (1995); Preston v. State, 257 Ga. 42, 45 (7) (354 SE2d 135) (1987). Although Franklin may have falsely claimed that he was a kidnap victim, the record shows that the prosecutor elicited testimony regarding the alleged falsity of Franklin’s claim and that defense counsel was allowed to cross-examine the police officer. There was no showing that the pretrial unavailability of the information regarding the alleged falsity of Franklin’s claim resulted in any harm to Thomas. Shearer v. State, [*139] 259 Ga. 51, 52 (2) (376 SE2d 194) (1989). See also Hicks v. State, 232 Ga. 393, 396 (207 SE2d 30) (1974); Webster v. State, 174 Ga. App. 427 (330 SE2d 168) (1985).

10. Thomas enumerates as error the trial court’s admission of the nine-millimeter pistol into evidence, contending that the chain of custody of the weapon was not established and that the officer who found the pistol did not identify the pistol with certainty. A weapon may be “admissible if the identification is sufficient to allow the jury to decide, under the evidence relative to identification, whether it is the identical weapon used by the defendant. [Cits.]” Dunn v. State, 263 Ga. 343, 345 (3) (434 SE2d 60) (1993). See also Williams v. State, 213 Ga. App. 119, 120 (1) (443 SE2d 534) (1994). In this case, the nine-millimeter pistol was clearly proved to be the murder weapon. The East Point officer who found the pistol in the car was certain that it was a blue semiautomatic of the same type as the one admitted. The firearms examiner testified that she received the pistol from an East Point officer. We conclude that the State met the burden of proving that the nine-millimeter pistol offered as the murder weapon was the nine-millimeter seized at the time of Thomas’ arrest for kidnapping. Brown v. State, 253 Ga. 363, 364 (2) (320 SE2d 539) (1984). “ ‘The State “need not negative every possibility of tampering and need only establish reasonable assurance of the identity” of the evidence.’ [Cit.]” Brown v. State, supra at 364 (2). The record shows that the nine-millimeter pistol seized from the car was in the possession of the East Point Police Department until it was delivered to the firearms examiner. Brown v. State, supra.

11. The trial court stated to the jurors that they would be excused for the weekend prior to the defense presenting its case, if the defense desired to present a case. Although Thomas urges that the trial court erred in failing also to tell the jurors that the defense had no obligation to present a defense, the record shows that the trial court did indicate that the defendants were not required to present a defense and at no point did the court imply that they have any obligation to present a defense. Accordingly, Thomas’ contention is without merit. See Earnest v. State, 262 Ga. 494, 496 (4) (422 SE2d 188) (1992); Joiner v. State, 236 Ga. 580, 581 (3) (224 SE2d 414) (1976); Hughley v. State, 144 Ga. App. 771, 772 (2) (242 SE2d 367) (1978).

12. Thomas further contends that his trial counsel provided ineffective assistance of counsel in numerous particulars. Although appellate counsel represented Thomas at the hearing on the motion for new trial and raised this issue, she did not call trial counsel or present any other evidence. In the absence of contrary evidence, defense counsel’s actions are presumed to be part of trial strategy. Earnest v. State, supra at 496-497 (5); Scott v. State, 223 Ga. App. 479, 483 (2) (c) (477 SE2d 901) (1996); Foster v. State, 222 Ga. App.[*140] 239 (474 SE2d 38) (1996); Brewer v. State, 219 Ga. App. 16, 21 (7) (463 SE2d 906) (1995); Green v. State, 218 Ga. App. 648, 650 (3) (b) (463 SE2d 133) (1995). Thus, it is not necessary to address specifically and individually every instance of alleged ineffective assistance. Thomas “has shown nothing that would demonstrate that his trial counsel failed to exercise reasonable professional judgment in his handling of the case. [Cit.]” Stephens v. State, 265 Ga. 120, 122 (2) (453 SE2d 443) (1995).

13. Thomas urges that the trial court erred in failing to give a curative instruction after an alibi witness admitted on cross-examination her prior conviction, but the prosecutor introduced no certified copy thereof. The failure to introduce a certified copy of an impeaching prior conviction is subject to a “best evidence” objection, not a request for curative instructions, and such objection may be waived. McIntyre v. State, 266 Ga. 7, 10 (4) (463 SE2d 476) (1995). Here, defense counsel did not make a proper objection at the time. Instead, the following day, defense counsel requested the giving of a specific curative instruction, but then agreed to the giving of a general charge on impeachment, including the necessity of a certified copy of any prior conviction. Accordingly, there was no error. McIntyre v. State, supra; Strickland v. State, 260 Ga. 28, 30 (4) (b) (ii) (389 SE2d 230) (1990); Fann v. State, 254 Ga. 514, 517 (3) (331 SE2d 547) (1985).

14. Thomas complains of several portions of the prosecutor’s closing argument, including references to the message that a “not guilty” verdict would send, to the victim’s absence on Father’s Day, and to use of this case as a vehicle for establishing the principles of right and wrong. We do not find that these remarks either improperly influenced the jury’s passions and prejudices or diverted attention from the evidence. McClain v. State, 267 Ga. 378, 385 (4) (a) (477 SE2d 814) (1996); Philmore v. State, 263 Ga. 67, 69 (3) (428 SE2d 329) (1993); Ward v. State, 262 Ga. 293, 297 (6) (g) (417 SE2d 130) (1992); Davis v. State, 255 Ga. 598, 611 (17) (340 SE2d 869) (1986).

Thomas contends that the prosecutor erroneously commented on the credibility of witnesses. While a prosecutor may not urge his personal belief as to the credibility of witnesses, he may ask the jury to deduce conclusions about credibility from proven facts. Alexander v. State, 263 Ga. 474, 477 (2) (d) (435 SE2d 187) (1993). Our review of the prosecutor’s argument as to the credibility of witnesses reveals no error.

Thomas further contends that the prosecutor repeatedly misstated evidence regarding the nine-millimeter gun and what defense counsel said about it. Considered in context, the challenged remarks were reasonable inferences from the evidence.

15. The instruction regarding testimony of an accomplice did not[*141] state or imply the trial court’s belief that Thomas was a participant in the crimes charged. See Ladson v. State, 248 Ga. 470, 477 (11) (285 SE2d 508) (1981).

16. Thomas contends that the trial court erred by failing to instruct the jury to distinguish between malice murder and felony murder. The verdict clearly established that the jury found Thomas guilty of both malice murder and felony murder. As the trial court properly entered its judgment of conviction and sentence only on the malice murder verdict, we find no error. Malcolm v. State, 263 Ga. 369, 372 (5) (434 SE2d 479) (1993). Thomas further argues that the trial court’s instruction on malice could be construed as directing the jury that it must find intention to kill upon proof of “wanton and reckless disregard.” We have already approved the language at issue over similar contentions and, thus, find no error. Flynn v. State, 255 Ga. 415, 417 (2) (c) (339 SE2d 259) (1986); Lackey v. State, 246 Ga. 331, 337 (11) (271 SE2d 478) (1980).

17. Although Thomas was indicted for aggravated assault by use of a handgun, the trial court recited the entire Code section on aggravated assault in its charge to the jury, thereby instructing that intent to murder, rape or rob are alternative methods by which a person commits aggravated assault. Thomas enumerates the giving of this charge as error.

There was no evidence of any intent to rape or rob. Therefore, the giving of the entire Code section on aggravated assault did not mislead the jury or violate Thomas’ due process rights. Dukes v. State, 265 Ga. 422, 424 (457 SE2d 556) (1995). Moreover, the trial court read the indictment verbatim in advising the jury of the offense of assault with a deadly weapon. Chandler v. State, 213 Ga. App. 46, 47 (2) (443 SE2d 679) (1994). See also Moore v. State, 207 Ga. App. 892, 895 (2) (429 SE2d 335) (1993).

18. Thomas contends that the trial court erred by omitting one of the jurors from the poll conducted after the verdict. Because defense counsel was present during the polling of the jury and failed to object to the omission, there is no reversible error. Hunter v. State, 177 Ga. App. 326, 327 (2) (339 SE2d 381) (1985). See also Tucker v. State, 252 Ga. 263 (312 SE2d 300) (1984); Awtrey v. State, 175 Ga. App. 148, 152 (6) (332 SE2d 896) (1985).

19. Thomas’ contention that the trial court erred by failing to advise him regarding his right to appeal is moot, because the trial court granted this out-of-time appeal.

Judgments affirmed.

All the Justices concur. [*142] Decided June 9, 1997 — Reconsideration denied June 30, 1997. Elaine T. McGruder, for appellant. Paul L. Howard, District Attorney, Carl P. Greenberg, Assistant District Attorney, Thurbert E. Baker, Attorney General, Deborah L. Gale, Assistant Attorney General, for appellee.
1

The crimes occurred on February 20, 1994 and the grand jury indicted Thomas on April 15,1994. On June 14,1995, the jury returned its guilty verdicts and, the following day, the trial court entered its judgments of conviction and sentences. On July 2, 1996, the trial court granted Thomas’ motion for out-of-time appeal. He filed a motion for new trial on July 31,1996, and amended his motion on October 17,1996. The trial court denied the motion for new trial on December 16,1996. Thomas filed his notice of appeal on December 31,1996 and the case was docketed in this Court on February 5, 1997. The parties presented oral argument on April 14,1997.