Jarnigan v. State , 295 Ga. 603 ( 2014 )

In the Supreme Court of Georgia
Decided: June 2, 2014
S14A0190. JARNIGAN v. THE STATE.
S14A0191. DAVIS v. THE STATE.
BLACKWELL, Justice.
Deonshowna Jarnigan and Grant Alexander Davis were tried together by
a DeKalb County jury and convicted of the murder of Dontavious Blair, among
other crimes. Jarnigan and Davis appeal, both contending that the trial court
improperly commented on the evidence in the presence of the jury. Davis alone
also contends that the trial court erred when it admitted certain evidence at trial,
when it restricted his cross-examination of a witness for the prosecution, and
when it charged the jury. Upon our review of the record and briefs, we see no
error, and we affirm.1
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The crimes were committed on April 28, 2010. Along with Sylvester Antoine Guice,
Jarnigan and Davis were indicted on April 12, 2011, and each was charged with malice
murder, three counts of felony murder, two counts of armed robbery, one count of burglary,
and five counts of aggravated assault. In addition, Davis and Guice were charged with
unlawful possession of a firearm during the commission of a felony. The trial of Jarnigan and
Davis commenced on April 25, 2011, and the jury returned its verdict four days later, finding
both guilty on all counts. Jarnigan and Davis each was sentenced to imprisonment for life for
the malice murder of Blair, two consecutive terms of imprisonment for life for the armed
1. Viewed in the light most favorable to the verdict, the evidence shows
that Brittnee Mahoney and Krystale Jennings hosted “stripper parties,” and they
invited Jarnigan to their home to discuss whether Jarnigan might wish to work
at such parties. In anticipation of visiting their home, Jarnigan devised a plan to
rob them, and Jarnigan enlisted the aid of Davis and Sylvester Antoine Guice.
On April 28, 2010, Jarnigan went to the home, and as she visited with Mahoney
and Jennings, Davis and Guice — both of whom were armed — hid nearby.
After a few minutes, Jarnigan left to go to a store, but she shortly returned to the
home.
robberies of Blair and Kyle Baber, a consecutive term of imprisonment for twenty years for
burglary, and four consecutive terms of imprisonment for twenty years for the aggravated
assaults upon Baber, Brittnee Mahoney, Darvi Stevenson, and Krystale Jennings. Davis was
sentenced to an additional consecutive term of imprisonment for five years for unlawful
possession of a firearm during the commission of a felony. The verdict as to felony murder
was vacated by operation of law, Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479)
(1993), and the remaining aggravated assault (upon Blair) merged with the malice murder
(of Blair). Guice was not tried but instead pled guilty to voluntary manslaughter. Davis filed
a motion for new trial on May 23, 2011, Jarnigan filed a motion for new trial two days later,
and both motions were amended on August 15, 2012. On the motions for new trial, the trial
court vacated the sentences for the aggravated assault upon Baber — Jarnigan and Davis both
had complained in their motions that the aggravated assault upon Baber merged with the
armed robbery of Baber — but the trial court otherwise denied the motions, all on June 26,
2013. Jarnigan and Davis timely filed notice of appeal on June 28, 2013, and the cases were
docketed in this Court for the January 2014 term and submitted for decision on the briefs.
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Jarnigan, however, did not come back inside the home. Jennings saw
Jarnigan outside, she came out to speak with Jarnigan, and when she did, she
was accosted by Davis and Guice, who pointed a gun at Jennings. Davis and
Guice entered the home, where they confronted Kyle Baber and took his pants
from him at gunpoint, evidently because he refused their demand that he empty
his pockets. Davis and Guice then tried to enter a bedroom, but Mahoney and
Blair held the door shut. A shot was fired through the door, and it fatally
wounded Blair. At that point, Davis and Guice broke into the bedroom, put a
gun to Mahoney’s head, and took a wallet from Blair’s body. As Davis and
Guice left the home, they encountered Darvi Stevenson and put a gun in his
face. Jarnigan then drove Davis and Guice away. Investigators later found
Davis’s fingerprints on the glass of the front door of the home.
Neither Jarnigan nor Davis disputes the legal sufficiency of the evidence.
We nevertheless have independently reviewed the evidence to assess whether
it is sufficient to sustain their convictions. Upon that review, we conclude that
the evidence adduced at trial was sufficient to authorize a rational trier of fact
to find beyond a reasonable doubt that Jarnigan and Davis were guilty of the
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crimes of which they were convicted. Jackson v. Virginia, 443 U. S. 307, 319
(III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
2. Jarnigan and Davis both contend that the trial court improperly
commented on the evidence in the presence of the jury. During closing
arguments, the lawyer for Jarnigan said:
[T]he State wanted you to believe Krystale Jennings. The same
young lady who sat on that stand and pretty much admitted to you
that she runs stripper parties, and implied that she’s kind of a pimp.
She collects money; she benefits. She also sat there and told you
that she cards people and looks at their IDs. I submit to you that’s
not true. She has not been honest with you at all. My client is
eighteen years old.
At that point, the prosecuting attorney objected that “[t]hat didn’t come into
evidence,” and the trial judge responded, “I’m going to sustain that objection.”
According to Jarnigan and Davis, the ruling of the trial court on the objection
of the prosecuting attorney amounted to an improper comment upon the
evidence. We disagree.
Pursuant to OCGA § 17-8-57, “[i]t is error for any judge in any criminal
case, during its progress or in his charge to the jury, to express or intimate his
opinion as to what has or has not been proved or as to the guilt of the accused.”
But in almost all cases, “sustaining or overruling an objection is not a violation
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of OCGA § 17-8-57.” Walker v. State, 308 Ga. App. 176, 182 (2) (b) (707 SE2d
122) (2011) (punctuation and citation omitted). See also Ellis v. State, 292 Ga.
276, 282 (3) (736 SE2d 412) (2013); Mathis v. State, 276 Ga. App. 205, 207
(622 SE2d 857) (2005); Lockaby v. State, 265 Ga. App. 527, 528-529 (1) (594
SE2d 729) (2004). In the circumstances presented here, the claim that a “simple
statement sustaining an objection in any way implicates OCGA § 17-8-57” is
“patently meritless.” Leggon v. State, 249 Ga. App. 467, 473 (6) (549 SE2d
137) (2001). Moreover, the trial court in this case cautioned the jury that “[b]y
no ruling or comment that the [c]ourt has made during the progress of the trial
has the [c]ourt intended to express any opinion upon the facts of the case, upon
the credibility of the witnesses, upon the evidence[,] or upon the guilt or
innocence of the defendants.” See Ellis, 292 Ga. at 282 (3). The trial court did
not violate OCGA § 17-8-57.
3. Davis claims that the trial court improperly admitted hearsay testimony
when it allowed Emily Taylor — an expert fingerprint examiner with the
Georgia Bureau of Investigation who testified for the prosecution — to testify
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that another fingerprint examiner had “verified” her work.2 Before Taylor said
that another examiner had “verified” her work, she explained that GBI
fingerprint examiners use a methodology known as “ACE-V,” a term that
2
Davis objected on hearsay grounds when Taylor testified that the initials of Jessie
Wargo appeared on a fingerprint card, when Taylor identified Wargo as another fingerprint
examiner, and when Taylor testified that Wargo had “verified” the work that Taylor had
done. But without more, the identification of a person who put initials upon a document is
not hearsay. See People v. Mandez, 997 P2d 1254, 1264-1265 (V) (Colo. App. 1999). And
Davis made no hearsay objection when Taylor explained that verification involves an
independent analysis by another examiner who reaches her own conclusions based upon her
own analysis and comparisons, and Davis likewise made no hearsay objection when Taylor
testified that Wargo would have noted any disagreement with Taylor, implying that the
absence of such a notation indicated that Wargo agreed with Taylor. Moreover, Davis made
no objection at all on confrontation grounds. Accordingly, we have no occasion in this case
to consider whether any testimony offered by Taylor was barred by the Confrontation Clause,
see Moore v. State, 294 Ga. 682, 685 (2) (755 SE2d 703) (2014), and about hearsay, we
decide only whether the testimony that Wargo “verified” the work of Taylor was
inadmissible. See Andrews v. State, 293 Ga. 701, 704 (3) (749 SE2d 734) (2013). We
express no opinion about whether confrontation objections or additional hearsay objections
would have had merit, and we caution the reader to keep in mind the limited scope of our
decision in this case. We also caution the reader that this case is governed by our former
Evidence Code, and we offer no opinion about admissibility under the new Evidence Code.
We note as well that Davis argues in his briefs that, to the extent his lawyer failed to
make objections on confrontation grounds or additional objections on hearsay grounds, his
lawyer was ineffective. But in support of this argument, Davis relies on a transcript of a
hearing on the motion for new trial that appears nowhere in the record transmitted to this
Court. Although the Attorney General noted the absence of this transcript in his brief, Davis
— who filed a brief in reply to the brief of the Attorney General — never has moved to
supplement the record with this missing transcript or attempted to explain its absence. See
Wilson v. State, 304 Ga. App. 623, 625-626, n.13 (2) (697 SE2d 275) (2010). Accordingly,
we must presume that the trial court was authorized to find that Davis failed to carry his
heavy burden to show ineffective assistance in this regard. See Wade v. State, 274 Ga. 791,
793 (6) (560 SE2d 14) (2002); Sorrells v. State, 267 Ga. 236, 241 (9) (476 SE2d 571) (1996).
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derives from the four steps of the process, “analysis, comparison, evaluation,
and verification.” Viewed in this context, the testimony that another examiner
had “verified” the work of Taylor tended to show that Taylor had followed a
standard and accepted methodology in her field of expertise, and the verification
to which Taylor testified, therefore, formed a basis for her own expert opinion.
When offered and admitted for such a purpose, testimony about the
verification of a fingerprint comparison that is as limited as that to which Davis
objected, see note 2 supra, is not inadmissible hearsay. An expert witness
generally is permitted to explain the basis for her opinions, including the
standard and accepted methodology that she used to form her opinions. See
Miller v. Miller, 288 Ga. 274, 275 (1) (705 SE2d 839) (2010). As a prominent
national treatise on evidence law has explained:
In some fields[,] corroboration or verification is part of the standard
procedure by which judgments are reached. Fingerprint examiners,
for example, generally follow a procedure known as ACE-V, an
acronym standing for analysis, comparison, evaluation, and
verification. One of the necessary steps that a fingerprint examiner
must follow to declare a match is verification – confirming that a
second expert agrees with his conclusion. When courts permit a
fingerprint expert to testify about ACE-V, they are allowing
testimony that an out-of-court expert has corroborated the opinion
of the witness.. . . If the bolstering process is built into the methods
of the field, courts may be less likely to exclude corroboration as
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bolstering, for in any given instance, the verification by another
qualified expert shows that the expert is following an established
protocol in the discipline.
David H. Kaye et al., The New Wigmore: Expert Evidence § 4.7.1 (b) (1). The
North Carolina Supreme Court has agreed that testimony about the verification
of a fingerprint comparison is not inadmissible hearsay to the extent that the
verification is part of a standard and accepted methodology and thereby forms
a basis for the opinion of the testifying fingerprint examiner. State v. Jones, 368
SE2d 844, 848 (N.C. 1988). We do not have to decide in this case, however, the
full extent to which testimony about the verification process is permissible.
Here, Davis objected when Taylor said that another examiner “verified” her
work, but he made no hearsay objection when Taylor later explained that the
other examiner had employed the same examination process, and he made no
hearsay objection when she implied that the other examiner had reached the
same conclusions. Compare State v. Connor, 937 A2d 928, 930 (N.H. 2007).
We are satisfied that the testimony to which Davis objected — testimony merely
about the fact of “verification,” not about the details of the verification process
or the independent conclusions of the verifying examiner — was properly
admissible to explain the basis for the opinion of the testifying examiner, which
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is not hearsay. See Roebuck v. State, 277 Ga. 200, 202 (1) (586 SE2d 651)
(2003); State v. Quick, 405 SE2d 179, 196 (N.C. 1991). Accordingly, the trial
court did not err in admitting this testimony over objection.
4. Davis also claims that the trial court improperly restricted his cross-
examination of Taylor. Although the accused is generally entitled to a thorough
and sifting cross-examination of the witnesses for the prosecution, the scope of
cross-examination is not unlimited, and trial courts “retain wide latitude to
impose reasonable limits on cross-examination based on concerns about, among
other things[,] interrogation that is only marginally relevant.” Nicely v. State,
291 Ga. 788, 796 (4) (733 SE2d 715) (2012) (citations and punctuation
omitted). Here, Davis complains that, when he asked Taylor about the precise
standards applied by fingerprint examiners in certain other countries, the trial
court sustained an objection to the relevance of the question. But the trial court
permitted Davis to elicit testimony that there is no national standard in the
United States that identifies how similar two prints must be to amount to a
match. Moreover, the trial court allowed Davis to elicit testimony that the degree
of similarity is determined by each examiner, based on her own training and
experience. Davis also complains that, when he tried to ask Taylor about a
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particular case in which the Federal Bureau of Investigation mistakenly
identified an Oregon lawyer as a terrorist based on a fingerprint match,3 the trial
court sustained an objection. But as to misidentifications in fingerprint
comparison, Davis never attempted to cross-examine Taylor about her general
awareness of other cases in which faulty fingerprint analysis led to a
misidentification. Moreover, Davis was permitted to cross-examine Taylor about
the possibility of mistakes in fingerprint comparison. See In re H.A., 311 Ga.
App. 660, 660, n.1 (716 SE2d 768) (2011). We see no abuse of discretion in the
limitation of the cross-examination of Taylor in this case.
5. Last, Davis argues that the jury charge on unlawful possession of a
firearm during the commission of a felony worked a constructive amendment of
the indictment, so as to permit his conviction in a manner that was not charged
in the indictment. Davis complains that the indictment charged only that he
unlawfully had a rifle “on his person” during the commission of the predicate
felonies, but the trial court charged the jury that a person has a firearm during
the commission of a felony when he has a firearm on his person or “within
3
See generally Mayfield v. United States, 599 F3d 964 (9th Cir. 2010).
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arm’s reach of” his person. Davis did not object to this instruction, however, and
for that reason, we review it only for plain error. See OCGA § 17-8-58 (b). See
also State v. Kelly, 290 Ga. 29, 31-32 (1) (718 SE2d 232) (2011).
Where the indictment charges that a defendant committed an offense in
one specific way, it generally is error for a trial court to instruct the jury that the
offense could be committed in another way. Williams v. Kelley, 291 Ga. 285,
286 (728 SE2d 666) (2012). But as this Court has made clear repeatedly, the
potential harm of such an error is cured “where the court provides the jury with
the indictment and instructs jurors that the burden of proof rests upon the State
to prove every material allegation of the indictment and every essential element
of the crime charged beyond a reasonable doubt.” Id. at 286-287 (citation and
punctuation omitted). The record in this case shows quite clearly that the trial
court so instructed the jury, and it also read and specifically provided the
indictment to the jury. Id. at 287. Accordingly, the jury charge does not amount
to plain error. See Kelly, 290 Ga. at 33 (2) (a).
Judgments affirmed. All the Justices concur.
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