Amey v. the State , 337 Ga. App. 480 ( 2016 )

FIFTH DIVISION
PHIPPS, P. J.,
DILLARD and PETERSON, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 21, 2016
In the Court of Appeals of Georgia
A16A0242. AMEY v. THE STATE.
PHIPPS, Presiding Judge.
In connection with a drive-by shooting, Terrell Amey was convicted of
aggravated assault and cruelty to children. In this appeal, Amey contends that the trial
court erred by admitting into evidence a certain letter. We affirm.
At the jury trial, the state’s witnesses testified to the following. During the late
night of April 14, 2012, Amey was the front seat passenger of an SUV being driven
by his adult male cousin. Seated behind the driver was an adult male, who was a close
friend of both Amey and the driver. Seated behind Amey was the driver’s one-year
old son.
The driver received a phone call, and the caller’s voice was heard through the
SUV’s speakers. The caller, who was an adult male cousin of Amey and the driver,
exclaimed that “some boys was trying to jump” on him at a particular Pilot gas
station. The immediate reactions by the men in the SUV, as detailed at trial by both
the driver and the backseat passenger, led to the shooting underlying this case.
The driver testified, “We all agreed to go down there and see what was going
on.” When they arrived at the Pilot gas station, the caller was with another relative
of the driver. The caller began pointing to a Dodge Charger that was exiting the
parking lot. The driver of the SUV inferred from such gesturing that, leaving the
scene in that vehicle, “must have been the guys that was trying to mess with them or
jump on them.” The driver quickly made a U-turn and pursued the Charger. As the
driver testified, “[W]hen I went up the road [Amey] told [the backseat passenger] to
pass the gun to [him]. When [the backseat passenger] passed the gun [Amey] rolled
down the window and he told me to pull up beside [the Charger].” The road, as the
driver described at trial, had only two lanes – each for traveling in the opposite
direction of the other. The driver recounted what happened when he next steered the
SUV into the lane designated for traveling in the opposite direction: “I pulled up
beside [the Charger,] and he fired shots.” The prosecutor asked for clarification: “And
who was the shooter that night?” The driver answered, “Terrell Amey.”
2
The backseat passenger gave a similar account at trial. Upon receiving the call,
they “proceeded to go to the Pilot.” Once there, they saw the “Charger leaving the
scene,” so they “proceeded to go behind them.” Amey asked for his (the backseat
passenger’s) handgun, which the backseat passenger typically kept on his waistband.
The backseat passenger handed his gun to Amey. Amey lowered his window and
extended his arm outside the SUV. When the SUV and the Charger were aligned,
“[h]e . . . started shooting.” The prosecutor asked for clarification, “Who shot that
gun?” The backseat passenger answered, “Terrell Amey.”
The driver and the backseat passenger were co-indicted with Amey on charges
of: (i) aggravated assault upon the driver of the Charger; and (ii) cruelty to children,
for committing the aggravated assault in the presence of the driver’s minor son. As
the driver and backseat passenger acknowledged while on the stand, both had entered
negotiated guilty pleas in exchange for their testimony at Amey’s trial, and were then
residing in prison.
Also at trial, the man who had been driving the Charger at the time it was fired
upon took the stand. He described leaving the Pilot, being chased by the SUV, then
being fired upon from the SUV’s passenger-side window. And a police officer who
3
had investigated the criminal incident testified that several bullets had penetrated the
rear quarter panel of the Charger and its trunk.
The state also presented evidence of the letter in question. To introduce that
letter, the state called to the stand an assistant district attorney who had been
temporarily assigned to the case (“the former ADA”). From that witness, the state
elicited testimony that, during the trial preparation period, Amey’s lawyer provided
to him an envelope with a letter inside. The envelope was hand-addressed to “Terrell
Amey”; the sender, the envelope showed, was Amey’s cousin who had been the
driver of the SUV during the drive-by. The letter inside was also handwritten. It
stated, in pertinent part,
Rell, It hurt me to go along with that lie [the backseat passenger] told
when he said yu shot at that car. I’m sorry. I just went along with it
because I thought u had left the courtroom and I knew by me taking a
plea that I was going to meet up with him in jail. And I didn’t want to
have to fight him about him saying I told on him. He knew he shot out
that back window. Yu was in the passenger seat. Yu was still sleep until
the shot went off. But if yu have to go to trial yu know I’m not gone
come and lie for him this time. . . . “E” a real dummy. . . . Love ya, Dip
4
“E,” as the prosecutor had elicited from the back-seat passenger, was the back-seat
passenger’s nickname. And “Dip,” as the prosecutor had elicited from the driver, was
the driver’s nickname.
When the prosecutor had the driver on the stand, however, the prosecutor
questioned the driver about whether he had written to family members since his
incarceration, and more specifically, whether he could identify the envelope and letter
described above. The driver responded that he had written to his family, including
one letter to Amey. The driver identified the hand-addressed envelope as the one in
which he had mailed his letter to Amey. But when shown the letter (recited, in part,
above), the driver claimed that it was not the letter that he had placed inside that
envelope. As the driver explained, “I didn’t write that letter. . . . I sent him a letter but
it wasn’t saying nothing what that says.”
Amey complains on appeal, “[T]he only practical purpose for the admission of
the letter was to infer [sic] that it was written by the defendant in an attempt to
5
mislead the state.”1 Contending that the trial court erred by admitting the letter in
evidence,2 Amey advances the following arguments.
1. First, Amey argues that the letter was inadmissible for lack of authentication.
He cites OCGA § 24-9-901 (a),3 which provides: “The requirement of authentication
or identification as a condition precedent to admissibility shall be satisfied by
evidence sufficient to support a finding that the matter in question is what its
proponent claims.”
Prior to opening statements, the trial court conducted a hearing on the
admissibility of the letter. Amey’s lawyer made clear that the defense would not be
seeking to present the letter to the jury and further sought a ruling disallowing the
state from using the letter, positing that the state would not be able to authenticate it.
The prosecutor responded,”[The former ADA] could be called to testify he
received this [letter] from the Defense.” The prosecutor further apprised the court
1
(Emphasis supplied.)
2
Alexis v. State, 313 Ga. App. 283, 286 (2) (721 SE2d 205) (2011) (“Whether
to admit evidence is a matter resting in the trial court’s sound discretion.”) (citation
and punctuation omitted).
3
This case was tried after January 1, 2013, which was the effective date of
Georgia’s new Evidence Code, including OCGA § 24-9-901 (“Requirement of
authentication or identification”). See generally Moore v. State, 295 Ga. 709, 713 (3),
n. 2 (763 SE2d 670) (2014).
6
that, during trial preparation, the state asked the driver about the letter and the driver
denied writing it. Positing that the letter was nevertheless admissible, the prosecutor
explained,
The letter is not being offered as to prove the truth of the matter asserted
in that, quite the contrary. That it is in fact not true, that there was a
falsity made in this case that was attempted to be perpetrated on the
State. It was offered by the Defense as something that this co-defendant
[driver] had written, which he apparently has not.4
After hearing additional argument from both sides, the Court overruled the defense
objection, and the state introduced the letter (and the envelope) as set forth above.
Maintaining that the letter was inadmissible for lack of authentication, Amey
points out that the state adduced no witness who saw the letter being written,
presented no testimony by a handwriting expert or a witness familiar with the
handwriting, and introduced no other writing with which the jury could compare the
letter. Amey concedes in his brief that “he was, at one point, in custody of [the
letter],” but he recites language in McCombs v. State5 that “‘[i]t would . . . be a very
4
(Emphasis supplied.)
5
109 Ga. 496 (34 SE 1021) (1900).
7
unsafe rule to hold that the possession and ownership of a . . . document may
authorize an inference that the owner . . . did write the matter contained in it.’”6
We agree with the state that it sufficiently authenticated the letter pursuant to
OCGA § 24-9-901 (b), which allows for authentication based upon its “[a]ppearance,
contents, substance, internal patterns, or other distinctive characteristics, taken in
conjunction with circumstances.”7 As the state concedes (and as the record
demonstrates), “the letter was offered to show that [Amey] fabricated [a document]
in an attempt to deceive the [s]tate and avoid punishment.” Hence, the state had the
burden of presenting “sufficient evidence to make out a prima facie case that the
proffered evidence is what it purports to be. Once that prima facie case is established,
the evidence is admitted and the ultimate question of authenticity is decided by the
jury.”8
6
Id. at 499 (1), quoting Van Sickle v. People, 29 Mich. 61, 65 (1874).
7
OCGA § 24-9-901 (b) (4). Accord State v. Smith, 246 Ga. 129, 130 (269 SE2d
21) (1980) (recognizing that “possession, together with other circumstances, may
meet the burden” of establishing authenticity of a document) (citation and
punctuation omitted).
8
Brown v. State, 332 Ga. App. 635, 639 (2) (774 SE2d 708) (2015) (citations
and punctuation omitted) (addressing authenticity requirements under OCGA § 24-9-
901).
8
Here, the contents and substance of the letter demonstrated that its author knew
details of the drive-by shooting, including the occupants of the SUV and their seating
arrangement. The author of the letter was familiar with the driver’s and backseat
passenger’s nicknames: “Dip” and “E.” The letter was written by someone who knew
that Amey’s traveling companions/co-indictees had pled guilty to the charges and
agreed to testify against him – a fact of which Amey would have been aware through
discussions with his attorney. The version of events set forth in the letter – that Amey
had been asleep until the gun was discharged – was consistent with a conclusion that
Amey was not guilty, even as a party to the crimes. Moreover, the letter contained
purported admissions that the driver had perjured himself by falsely testifying that
Amey was the shooter; but nothing in the record shows what the driver might have
gained from thereby admitting perjury. Amey, on the other hand, stood to gain
support for a defense that might have exonerated him of all charges. As Amey
concedes, the letter had been in his possession. And his lawyer subsequently gave it
to the former ADA. Furthermore, although the letter was purportedly signed by the
driver, the driver disclaimed writing it.
In light of these circumstances, the state carried its burden of presenting
sufficient evidence to make out a prima facie case that the letter was authored by
9
Amey.9 Because the trial court thus did not err by rejecting Amey’s authentication
objection, this evidentiary challenge provides no basis for disturbing the judgment of
conviction.
2. Alternatively, Amey argues that the letter should have been excluded under
OCGA § 24-4-403, which states: “Relevant evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.” According to Amey, “The letter here
9
See Smith, supra (holding that a document found in defendant’s possession
and purportedly written by defendant’s accomplice was sufficiently authenticated as
written by the accomplice, given the document’s content and references to
“circumstances [that] were peculiarly within the knowledge” of the accomplice);
Armstrong v. State, 249 Ga. App. 772, 775 (3) (549 SE2d 545) (2001) (explaining
that trial court did not err by overruling authentication objection to unsigned notes
that were addressed to, and received by, defendant’s accomplice, where there was
circumstantial evidence that the defendant had penned the notes, including: the notes
accomplice received threatened him if he “snitched,” and the only person against
whom the accomplice had agreed to testify was the defendant); Weathers v. State, 198
Ga. App. 871-872 (3) (403 SE2d 449) (1991) (explaining that the state made a prima
facie showing of authenticity that the defendant’s alleged accomplice had authored
a letter to the District Attorney that offered to testify against defendant if his
sentences were shortened, because despite the alleged accomplice’s subsequent denial
of authoring the letter, the letter bore the alleged accomplice’s correct name and
address, the contents of the letter “indicated that its author had first-hand detailed
knowledge of how the crime had been committed,” and the alleged accomplice “had
a peculiar interest” in penning the letter).
10
offered scant probative value and any such value was substantially outweighed by the
prejudicial effect its admittance undoubtedly had on the jury. In this case it would
have been impossible for a jury person, after the admittance of such a letter, to judge
this case fairly.”
Pretermitting whether Amey waived this issue by failing to raise it before the
trial court,10 we find the argument without merit.
[T]he plain meaning of OCGA § 24-4-403’s text makes clear that the
trial court may only exclude relevant evidence when its probative value
is “substantially outweighed” by one of the designated concerns. Indeed,
the Eleventh Circuit has described Rule 403 as “an extraordinary remedy
which the … court[s] should invoke sparingly, and the balance should
be struck in favor of admissibility.” Obviously, the reason for such
caution is that relevant evidence in a criminal trial is “inherently
prejudicial.”11
10
Compare OCGA § 24-1-103 (a) (1) (“Error shall not be predicated upon a
ruling which admits . . . evidence unless a substantial right of the party is affected and
. . . a timely objection or motion to strike appears of record, stating the specific
ground of objection, if the specific ground was not apparent from the context.”), with
OCGA § 24-1-103 (d) (“Nothing in this Code section shall preclude a court from
taking notice of plain errors affecting substantial rights although such errors were not
brought to the attention of the court.”).
11
Williams v. State, 328 Ga. App. 876, 879 (1) (763 SE2d 261) (2014) (“OCGA
§ 24-4-403 . . . tracks Federal Rule of Evidence 403.”) (footnotes omitted). “Given
the similarity between Georgia’s new evidence code and the Federal Rules of
Evidence it is proper that we give consideration and great weight to constructions
11
The letter was introduced as evidence of Amey’s guilty consciousness relating
to the shooting incident. “Evidence of [Amey’s] consciousness of guilt was certainly
relevant at his trial.”12 Our review of the record convinces us that the letter was not
rendered inadmissible for reason that its relevance was “substantially outweighed”
by any “danger of unfair prejudice.”13 Consequently, this evidentiary challenge
provides no basis for disturbing the judgment of conviction.
Judgment affirmed. Dillard and Peterson, JJ., concur.
placed on the Federal Rules by the federal courts.” Id. at 879 (1), n. 14 (citation and
punctuation omitted).
12
Bostic v. State, 294 Ga. 845, 849 (2) (757 SE2d 59) (2014) (citation omitted).
13
OCGA § 24-4-403; see Bostic, supra at 848-849 (2) (rejecting argument that
evidence of defendant’s statements made while awaiting trial – that he “would ‘win
his case,’ because ‘his people [would] put the guy that ID’d him at the scene of the
crime . . . to sleep,’ which would mean that the State would ‘not be able to go to the
grand jury and indict him and he will walk free’” – was inadmissible as unfairly
prejudicial, where such evidence was relevant to show defendant’s “consciousness
of guilt”); Williams, supra.
12