Geiger v. State ( 2014 )

295 Ga. 190FINAL COPY
S14A0168. GEIGER v. THE STATE.
BENHAM, Justice.
Appellant Richard Geiger was sentenced to life imprisonment for his
conviction for the felony murder of his live-in girlfriend, predicated upon
aggravated assault by stabbing, plus five years to serve consecutively for
possession of a knife during the commission of a felony.1 He appeals on the
ground that his arrest on his mother’s property, along with evidence seized at the
time of his arrest and statements made as a result of his arrest, should have been
suppressed. He also complains that prosecutorial misconduct required a
mistrial. For the reasons set forth below, we affirm.
1. Viewed in the light most favorable to the verdict, the evidence
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The crime occurred on March 6, 2007, and the Liberty County grand jury returned an
indictment on September 13, 2007, charging appellant with malice murder, felony murder
(aggravated assault by stabbing the victim with a knife), aggravated assault, and possession of a knife
during the commission of a felony. Appellant was tried May 6 and 7, 2010, and the jury found him
not guilty of malice murder but guilty of the other crimes charged. The trial court sentenced
appellant to life in prison for the felony murder conviction, to confinement for twenty years to be
served concurrently for the aggravated assault, and to confinement for a period of five years to be
served consecutively to the other sentences for the possession conviction. On May 28, 2010,
appellant filed a motion for new trial which was later amended. After a hearing, the trial court
denied appellant’s motion for new trial by order entered June 24, 2013. Appellant filed a timely
notice of appeal on July 1, 2013, and the case was docketed in this Court to the January 2014 term
for a decision to be made on the briefs.
presented at trial showed appellant lived with his girlfriend, victim Rosie Lee
Smith, at her apartment in Liberty County. She was married but had been living
apart from her husband, Larry Smith, for many years. On March 6, 2007, Mr.
Smith traveled from out of town to visit his wife at her residence. Upon
receiving notice that her husband was coming to visit, Mrs. Smith asked
appellant to pack his belongings and leave. While appellant was packing, he
pulled a concealed knife out of his sleeve and stabbed Mrs. Smith in the chest,
and she died at the scene. Mr. Smith was at the apartment when he heard a
thump and saw appellant running from the apartment. He found Mrs. Smith
sitting on the floor of the hallway closet with a stab wound and not moving.
That night, appellant admitted to a friend that he had stabbed Mrs. Smith, and
he ran off upon learning she had died. Two days later, law enforcement
obtained an arrest warrant for appellant and, based on information he had been
seen at his mother’s house, they drove to her Bulloch County home. As law
enforcement officers were pulling onto the mother’s property, they observed
appellant crossing a cotton field behind the home and they took him into
custody. Appellant waived his rights, made a full confession, admitted he
disposed of the knife he used to stab the victim, and told officers of its location.
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Authorities recovered the knife and submitted it to the GBI for testing. Blood
found on the knife matched that of Mrs. Smith. Appellant testified at trial and
stated he went to Mrs. Smith’s apartment on the day she was killed with a knife
concealed in his clothing. He admitted that he stabbed her with the intent to hurt
her because he was upset that she was making him leave, but stated he did not
intend to kill her. The evidence as described above was sufficient to authorize
a rational jury to find appellant guilty beyond a reasonable doubt of felony
murder. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d
560) (1979).2
2. The arresting officers obtained a warrant for appellant’s arrest, had
reason to believe he was at his mother’s house, and were prepared to take him
into custody there if an arrest could be made. Appellant asserts, however, that
the warrantless entry onto his mother’s property to execute the arrest warrant
was illegal, and thus the trial court erred by denying his motion to suppress his
arrest, the evidence seized pursuant to his arrest, and the statements he made
2
As set forth in footnote 1, the trial court imposed a sentence of twenty years for the
aggravated assault conviction to be served concurrently with the life sentence for the felony murder
conviction. The conviction for aggravated assault merged as a matter of fact with the conviction for
felony murder, however, and thus the sentence for the aggravated assault conviction is vacated. See
OCGA § 16-1-7 (a); Nazario v. State, 293 Ga. 480 (746 SE2d 109) (2013).
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upon his arrest. Appellant makes no argument, nor could he, that merely
entering onto his mother’s property to knock and inquire of his whereabouts
required the authorities first to obtain a search warrant. Instead, his argument
is based upon appellant’s assumption that he was wrongly apprehended within
the curtilage of his mother’s home without a search warrant. In his motion to
suppress, citing Minnesota v. Olson, 495 U. S. 91 (II) (110 SCt 1684, 109 LE2d
85) (1990), appellant asserted he had standing to challenge the search. But in
Olsen, the United States Supreme Court held that the warrantless arrest of a
suspect after a warrantless entry into the home in which he was staying violated
the suspect’s Fourth Amendment rights, where neither consent to enter the home
nor exigent circumstances to justify a warrantless entry were shown. In this
case, however, the arresting officers had obtained a warrant for appellant’s
arrest. Assuming appellant was living at his mother’s home, then the arrest
warrant authorized entry to make the arrest. See Payton v. New York, 445 U. S.
573, 603 (100 SCt 1371, 63 LE2d 639) (1980) (“[F]or Fourth Amendment
purposes, an arrest warrant founded on probable cause implicitly carries with it
the limited authority to enter a dwelling in which the suspect lives when there
is reason to believe the suspect is within.”); United States v. Bervaldi, 226 F3d
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1256, 1262-1263 (II) (11th Cir. 2000); Carter v. State, 308 Ga. App. 686, 687-
688 (1) (708 SE2d 595) (2011). If, on the other hand, appellant was not living
in his mother’s home and was simply present or visiting there, he had no
standing to complain about a warrantless entry into the house or its curtilage, as
only those living in the home could challenge such a search. See Steagald v.
United States, 451 U. S. 204, 213-214 (101 SCt 1642, 68 LE2d 38) (1981)
(holding, in a challenge raised by a resident, that the police cannot enter a home
to execute an arrest warrant for a person not living there without a search
warrant, consent, or exigent circumstances). In either event, the evidence
presented at the motion to suppress hearing showed appellant was in plain view
of the officers who arrived at his mother’s residence for the lawful purpose of
determining whether he was present, and he was apprehended in the proverbial
“open field.” Several marked cars arrived at the residence at or about the same
time and one or more of the cars drove to the rear of the residence to secure it
while other officers planned to knock on the front door. The undisputed
testimony presented at the motion to suppress hearing established that even the
officers who drove to the front of the property to knock on the front door could
see appellant walking across the field near the house as their vehicles
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approached the house. For that reason, the officers drove their vehicles directly
to the field to prevent appellant from attempting to escape and to arrest him.
Applying a “clearly erroneous” standard of review, we find no error in the trial
court’s findings of fact with respect to appellant’s motion to suppress. See
Miller v. State, 288 Ga. 286, 286-287 (1) (702 SE2d 888) (2010).
The United States Supreme Court has reaffirmed “that no expectation of
privacy legitimately attaches to open fields.” Oliver v. United States, 466 U. S.
170, 180 (III) (A) (104 SCt 1735, 80 LE2d 214) (1984) (finding no Fourth
Amendment violation when law enforcement officers, acting on a tip, arrived at
petitioner’s farm, drove past the house to a locked gate with a “no trespassing”
sign, walked around the gate to a footpath, and ultimately found a field of
marijuana in a highly secluded field on the property). That this open field was
behind the house and near a shed at the rear of the house does not establish it
was within the curtilage for purposes of Fourth Amendment protection, even if
appellant had standing to assert search protection. “At common law, the
curtilage is the area to which extends the intimate activity associated with the
sanctity of [the occupants’] home and the privacies of life.” (Citation and
punctuation omitted.) Id. at 180. A cotton field behind a house which is visible
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from the road cannot reasonably be deemed to be intimately associated with the
privacies of life in the home. Even an area that is within the curtilage does not
provide constitutional protection for activities that are conducted within plain
view of police observation. See California v. Ciraolo, 476 U. S. 207, 213 (II)
(106 SCt 1809, 90 LE2d 210) (1986). Appellant had no reasonable expectation
of privacy when walking across an open field in view of the road. Accordingly,
the trial court did not err in denying appellant’s motion to suppress his arrest or
any evidence seized during the arrest.
3. On cross-examination, the prosecutor directed appellant’s attention to
the custodial statement he made to the arresting officers, which had been played
to the jury, that “he could never harm anybody.” The prosecutor then asked
appellant whether it was true, however, that the day before Mrs. Smith’s death
he had pulled a knife on a man that was her ex-boyfriend. The state had not laid
a proper foundation for presenting similar transaction evidence, and appellant’s
attorney objected and moved for mistrial on the ground that reference to this
alleged incident improperly placed appellant’s character into evidence. During
a conference outside the presence of the jury, the trial court instructed the
prosecutor to stay away from this evidence but denied the motion for mistrial.
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The trial court then instructed the jury to disregard the previous comment by the
prosecutor and ordered it to be stricken. The prosecutor then commenced
questioning appellant about whether his previous girlfriend had also asked him
to leave and asked whether his leaving was related to “something about her
stabbing you with a screwdriver?” Again, appellant’s counsel objected and
requested a mistrial. Outside the hearing of the jury, the trial court strongly
rebuked the prosecutor and instructed him to stay away from that kind of
evidence, but denied the motion for mistrial. Appellant’s counsel renewed the
motion for mistrial which again was denied, but, alternatively, counsel asked for
curative instructions. When the jury returned, no curative instructions were
given. Although appellant’s enumeration of error asserts the trial court erred by
failing to grant a mistrial for prosecutorial misconduct, he does not argue
entitlement to a mistrial in his brief, but argues the trial court’s failure to give
curative instructions and to rebuke counsel in the presence of the jury created
reversible error.3
With respect to the first prosecutorial statement to which appellant raised
3
Appellant has abandoned his argument regarding the trial court’s denial of motion for
mistrial and therefore it will not be addressed.
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an objection, we agree that the record demonstrates the prosecutor violated
OCGA § 17-8-75 by making “statements of prejudicial matters which [were] not
in evidence . . . .” For the purpose of this analysis we will assume, without
deciding, that the second prosecutorial statement to which appellant raised an
objection, which referenced that the appellant, himself, was a victim of an
assault, was also an improper prejudicial statement by the prosecutor.
Accordingly, it was “the duty of the court to interpose and prevent the same.”
Id. Further, “[o]n 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.” Id. Once a defendant’s
counsel has raised an objection, OCGA § 17-8-75 imposes a duty upon the trial
court “to rebuke the prosecutor, give an appropriate curative instruction, or grant
a mistrial in the event that the prosecutor has injected into the case prejudicial
statements on matters outside of the evidence.” O’Neal v. State, 288 Ga. 219,
221 (1) (702 SE2d 288) (2010). Contrary to the state’s argument, once an
objection has been raised, a defendant does not waive appellate review of the
trial court’s failure to rebuke a prosecutor or give a curative instruction by
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failing to request a specific remedy. Id.In this case, however, the trial court’s error in failing to remedy the impact
of the prejudicial statements by the prosecutor, if any, was harmless. Given the
overwhelming evidence of appellant’s guilt, including his custodial confession,
we find it is highly probable that the trial court’s error, if any, did not contribute
to the verdict. See O’Neal, 288 Ga. at 222 (2) (applying a harmless error
analysis to the issue of the trial court’s failure to comply with the duty imposed
by OCGA § 17-9-75). Consequently, we find no reversible error.
Judgment affirmed and sentence vacated in part. All the Justices concur.
Decided May 19, 2014.
Murder. Liberty Superior Court. Before Judge Stewart.
T. Mack Taylor, for appellant.
Tom Durden, District Attorney, Melissa L. Poole, Russell B. Mabrey, Jr.,
Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant
Attorney General, Andrew G. Sims, Assistant Attorney General, for appellee.
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