Gomillion v. State , 298 Ga. 505 ( 2016 )

In the Supreme Court of Georgia
Decided: February 22, 2016
S15A1617. GOMILLION v. THE STATE.
THOMPSON, Chief Justice.
This is the second appearance of this case in this Court. In Gomillion v.
State, 296 Ga. 678 (769 SE2d 914) (2015), we held that the evidence was legally
sufficient to support appellant Michael Gomillion’s convictions relating to the
shooting death of Clyde Chaney. Id. at 678-680. However, we also held that,
in denying appellant’s motion for new trial, the trial court failed, in response to
appellant’s request, to exercise its discretion to review the evidence as a
thirteenth juror. Id. at 680-681. Without addressing appellant’s remaining
enumerations of error, we therefore vacated the order denying the motion for
new trial and remanded the case for the trial court to apply the proper standard
to the general grounds. Id. at 681. On remand, the trial court exercised its
discretion as a thirteenth juror and denied the motion for new trial. Appellant
then filed this appeal. For the reasons that follow, we affirm.
1. When Chaney was shot, he “was at a drug or ‘trap’ house run by
LaQuincy Bryant and Benny Clay. Early on in the day, appellant came by
looking for Bryant, but Bryant was not at the house.” Id. at 678. Before the
shooting, Clay told Bryant that appellant had come by the house looking for
him. At trial, over appellant’s hearsay objection, Bryant testified that, after the
shooting, a neighbor told him that she had seen appellant running from the crime
scene. Appellant contends that Bryant’s testimony regarding the neighbor’s
statement was inadmissible hearsay and that the trial court erred by allowing it.
We find no error.
Bryant was a key witness for the State, and Clay’s statement to Bryant that
Gomillion had been looking for him on the night of the shooting, coupled with
the neighbor’s statement that she had seen Gomillion running away after the
shooting, led Bryant to decide that he should leave immediately because he was
likely Gomillion’s target, not Chaney.1 For this reason, and because the trial
court instructed the jury that the statement “is being allowed in not because of
the fact it may be true, . . . it’s being admitted to explain [Bryant’s] conduct,
1
We note that the defense attacked Bryant’s credibility on cross-examination by questioning
why he left the crime scene without talking to the police and without seeking assistance for Chaney,
his friend.
2
why he left the scene,” the trial court did not abuse its discretion in admitting the
neighbor’s statement to explain Bryant’s reason for leaving. See former OCGA
§ 24-3-22 (providing that, “[w]hen, in a legal investigation, information,
conversations, letters and replies, and similar evidence are facts to explain
conduct and ascertain motives, they shall be admitted in evidence not as hearsay
but as original evidence”); McCoy v. State, 273 Ga. 568, 572 (544 SE2d 709)
(2001) (holding that out-of-court statements were admissible to explain a
witness’s delay in going to the police); Collins v. State, 273 Ga. 93, 96 (538
SE2d 47) (2000) (same); Moore v. State, 295 Ga. 709, 712 (763 SE2d 670)
(2014) (explaining that we review a trial court’s “admission of evidence for an
abuse of discretion”).
2. Appellant contends that the trial court erred in allowing Tamir Harris
to testify about a previous shooting as a similar transaction because the State
failed to show that appellant was the shooter. See Gomillion, 296 Ga. at 679
(describing Harris’s testimony about this shooting). We conclude, however, that
even if the trial court erred in admitting the evidence, the error was harmless.
2
Appellant was tried before the effective date of our new Evidence Code.
3
First, appellant does not challenge the admission of evidence of a second
similar transaction that occurred in 2001, about four years before the present
crimes. Evidence of that crime, to which appellant pled guilty, showed that
appellant shot Richard Crowley five times after a dispute over money at a drug
house and that, when he did so, he was wearing dark clothing and a mask. See
id. Thus, even if the jury should not have heard the evidence of the crime
described by Harris, the jury nevertheless heard the probative similar transaction
evidence of the 2001 shooting.
Moreover, the evidence – other than Harris’s similar transaction testimony
– that appellant shot Chaney is overwhelming. This evidence consisted of the
2001 similar transaction; forensic evidence that the bullet recovered from the
victim could have been fired from appellant’s .357 Magnum; and that on the day
of the crime, appellant cleaned and loaded the gun at a friend’s house, told
someone on the telephone that “This is what I do to someone who takes from
me. Murder, b***h,” and went by the drug house at which the shooting
occurred looking for Bryant. There was also evidence that, after the shooting,
several people saw the shooter, who was wearing dark clothing and a ski mask,
run from the scene; that one of the people at the drug house recognized appellant
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as the shooter when the shooter stopped under a street light and pulled off the
ski mask; and that, after appellant was arrested, dark clothing and a blue ski
mask were found in the car he was driving.
Considering the proper admission of the 2001 crime and the strength of
the evidence against appellant, we conclude that it is highly probable that any
error by the trial court in admitting evidence of the similar transaction involving
Harris did not affect the jury’s verdict. See Peoples v. State, 295 Ga. 44, 55-58
(757 SE2d 646) (2014) (explaining that “‘[t]he test for determining
nonconstitutional harmless error is whether it is highly probable that the error
did not contribute to the verdict’” and holding that the trial court’s error in
admitting evidence of a similar transaction was harmless, in part, because of the
overwhelming evidence of guilt (citation omitted)); McCain v. State, 292 Ga.
App. 886, 887 (665 SE2d 912) (2008) (holding that any error in admitting
evidence of an independent crime by the defendant was harmless, in part,
because the jury heard evidence of another properly admitted similar
transaction); Bradford v. State, 261 Ga. App. 621, 622 (583 SE2d 484) (2003)
(same).
3. Appellant contends that the trial court erred in denying his motion to
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suppress the evidence seized from the car he was driving. See Gomillion, 296
Ga. at 679-680 (describing the evidence found in the car appellant was driving).
We disagree.
Appellant was not the owner of the car he was driving. The day appellant
was arrested, the police contacted the owner of the car and obtained her consent
to search it. Among other reasons, the trial court denied the motion to suppress
on the ground that the owner’s consent properly authorized the police to search
the vehicle. Appellant asserts, however, that the owner of the car had effectively
given the car to him, giving him an expectation of privacy in the car and
requiring that the police obtain his consent before searching it. Even assuming
that appellant had a legitimate expectation of privacy in the vehicle, see 6 W.
LaFave, Search and Seizure § 11.3 (e) (5th ed.) (explaining that “it has been
held that . . . a person driving the car with the owner’s consent or bailee’s
consent . . . ha[s] standing to object to a search of that vehicle”), we conclude
that the search was proper.
Here, when a police officer contacted Averi Lamb after the car had been
impounded, she confirmed that she was the owner of the car and said that she
had permitted appellant to use the car. The officer asked for and obtained
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Lamb’s consent to search the car. Because Lamb was the car’s owner and said
only that she had given permissive use of the vehicle to another, the police
officer could have reasonably believed that she had not relinquished any of her
right to use and control possession of the car and therefore had the right to
consent to a search of it. See United States v. Guzman, 507 F3d 681, 687 (8th
Cir. 2007) (explaining, that, generally, “[a]n owner of a vehicle may consent to
its search even if another person is driving the vehicle” and has an expectation
of privacy in it). Accord United States v. Jensen, 169 F3d 1044, 1049-1050 (7th
Cir. 1999); Hardy v. Commonwealth, 440 SE2d 434, 437 (Va. Ct. App. 1994).
See also Illinois v. Rodriguez, 497 U.S. 177, 188-189 (110 SCt 2793, 111 LE2d
148) (1990) (if a police officer could have reasonably believed that a third party
had authority to consent to a search, the search is lawful).3
Appellant, however, contends that, despite the owner’s consent, his
expectation of privacy in the car required that the police obtain his consent to
justify the warrantless search. Even if we assume that the owner’s interest was
not superior to appellant’s and that if appellant had been present and objected
3
We note that there is no evidence that Lamb had “lost sufficient control [of the vehicle] as
to lack authority to consent to a search.” 4 W. LaFave, Search and Seizure § 8.6 (b) (5th ed.)
7
to the search, the police would have had to honor his objection, but see Hardy,
440 SE2d at 437 (holding that, when the owner of a car loaned his car to the
defendant for an indefinite time, the owner’s interest in the car was superior to
the defendant’s privacy interest and that the owner’s consent to search overrode
the defendant’s objection to the search), this argument is without merit.
To begin, appellant cites to no case that requires the police to obtain the
consent of all persons with common authority over a premises or vehicle to
make a warrantless search lawful. On the contrary, cases of the United States
Supreme Court “firmly establish that police officers may search jointly occupied
premises if one of the occupants consents.” Fernandez v. California, U.S.
(134 SCt 1126, 1129, 188 LE2d 25) (2014). Although “[i]n Georgia v.
Randolph, 547 U.S. 103 (126 SCt 1515, 164 LE2d 208 (2006), [the Court]
recognized a narrow exception to this rule, holding that the consent of one
occupant is insufficient when another occupant is present and objects to the
search,” Fernandez, 134 SCt at 1129,4 the Fernandez Court declined to extend
4
For purposes of this case, we will assume that cases involving premises like Fernandez and
Randolph are applicable in the context of vehicle searches. But see Randolph, 547 U.S. at 115(saying that “we hold to the centuries-old principle of respect for the privacy of the home” and that
“it is beyond dispute that the home is entitled to special protection as the center of the private lives
of our people” (citations and quotation marks omitted)); Rakas v. Illinois, 439 U.S. 128, 148 (99 SCt
8
the rule of Randolph, holding that it is limited to situations when an objecting
resident is physically present. There, Fernandez was arrested and taken from an
apartment he shared with another person, but not before he objected to the
police searching the apartment. About an hour later, a police officer returned
to the apartment and obtained the consent of the remaining resident to search the
premises in Fernandez’s absence. Id. at 1030. Fernandez contended that his
absence “should not matter because he was absent only because the police had
taken him away.” Fernandez, 134 SCt at 1134. The Court rejected this
contention, holding that Fernandez was lawfully arrested, see id.; that “an
occupant who is absent due to a lawful detention or arrest stands in the same
shoes as an occupant who is absent for any other reason,” id.; and that Randolph
“unequivocally requires the presence of the objecting occupant in every
situation other than the one mentioned in the dictum” in Randolph, id. at 1134-
1135. That dictum was “that consent by one occupant might not be sufficient
if ‘there is evidence that the police have removed the potentially objecting tenant
from the entrance for the sake of avoiding a possible objection.’” Id. at 1134
421, 58 LE 2d 387) (1978) (“We have on numerous occasions pointed out that cars are not to be
treated identically with houses or apartments for Fourth Amendment purposes.”).
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(quoting Randolph, 547 U.S. at 121). The Fernandez Court also rejected
Fernandez’s argument that the objection that he made at the premises before he
was arrested “remained effective until he changed his mind and withdrew his
objection.” Id. at 1035. Here, appellant never lodged an objection to the search
of the car and does not contest the lawfulness of his arrest. Under the principles
of Fernandez and Randolph, because appellant was not present and objecting at
the time of the search of the vehicle he was driving, the owner’s consent was all
that was required for the search to be lawful.
Judgment affirmed. All the Justices concur.
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