Richard v. State , 281 Ga. 401 ( 2006 )

SEARS, Chief Justice,

dissenting.

Because the improper admission of evidence in this case violated Richard’s constitutional right of confrontation, the error cannot be deemed harmless unless “there is [no] reasonable possibility that the improperly admitted evidence contributed to the [verdict].”⁷ 8The majority fails to show how the error in this case can satisfy that exacting standard. Accordingly, I dissent.

From a review of the overall evidence, it is plain that Brenda Brown’s statements to the police were quite possibly the strongest evidence of Richard’s guilt. The jury itself made that very point when, during its deliberations, it specifically requested the opportunity to hear only one piece of evidence a second time before reaching its verdict — Brenda Brown’s inadmissible police interview.

The other evidence was simply not as clear and convincing as the statements of Brenda Brown. The testimony of Bobby Brown was vague and contradictory. The testimony of Charles Johnson shed little, if any, light on the killing. The evidence of Richard’s haircut, as well as his statement while being arrested, failed to clearly connect him to the murder, as opposed to the other criminal activity involving the automobile. The statement given to police by Hampton, the jailhouse informant, was tainted by his testimony that he had fabricated the statement in exchange for an improper benefit, among other inconsistencies. The State introduced no forensic evidence linking Richard to the murder. Although the majority is correct that the admissible evidence was sufficient to sustain the convictions under the deferential standard demanded by Jackson v. Virginia,⁸ it was far from overwhelming. Brenda Brown’s recorded interview and written statement to the police, however, were clear, convincing, and afflicted by none of the vagueness or inconsistencies that weakened the other evidence.

The relative importance of Brenda Brown’s interview with the police was emphatically illustrated by the jury’s request, during its deliberations, to be allowed to listen to it again. In Orr v. State, this Court faced a similar situation and found that the fact that the jury specifically requested to hear the improperly admitted evidence during its deliberations was an important factor in our determination that the error was harmful.⁹ Although, as the majority notes by footnote, the record does not reflect precisely why the jury wanted to hear the interview again, the obvious conclusion is that the jury deemed it to be significant and important evidence. The jury was, after all, deliberating on Richard’s guilt when it made its request, and it returned its verdict to convict shortly after hearing Brenda’s statement again.

In Brawner v. State, this Court faced a similar violation of the defendant’s right of confrontation and concluded that the error could not be deemed harmless because the State had failed to “ ‘prove beyond a reasonable doubt that the error did not contribute to the verdict.’ ”¹⁰ Just as in this case, the erroneously admitted evidence in Brawner “went to the core issue of the case,” and the veracity of the other primary witnesses’ testimony was suspect.* ¹¹ The majority attempts to distinguish Brawner from the present case by pointing to the “considerable evidence against Richard that did not come from an ‘impeached’ source.”¹² Regardless of whether the other witnesses had been officially “impeached,” however, Brenda Brown’s statement, like the inadmissible statement in Brawner, was at least as persuasive as the admissible statements and testimony of the other witnesses.¹³

To sustain the convictions, the majority strains to conclude that “[v]iewed as a whole, the evidence was such that there is no reasonable possibility that the admission of the statement and interview of Brenda contributed to the guilty verdicts.”¹⁴ Although the facts in this case are appalling, this Court must protect against the dilution of constitutional protections through the unwarranted expansion of the harmless error doctrine. If this Court can find that there is no reasonable possibility that the improperly admitted evidence contributed to the verdict in this case, in spite of the jury’s specific request to hear only that evidence again during deliberations, and the relative weakness of the admissible evidence, then the constitutional right of confrontation is a right without a remedy.

Decided November 6, 2006 Reconsideration denied December 15, 2006. Mitchell D. Durham, for appellant. Patrick H. Head, District Attorney, Dana J. Norman, Assistant District Attorney, Thurbert E. Baker, Attorney General, Edwina M. Watkins, Assistant Attorney General, for appellee.

The violation of Richard’s constitutional right of confrontation was harmful error in this case, as we cannot in good conscience say that there is no reasonable possibility that it contributed to the jury’s verdict. I therefore conclude that the convictions must be reversed and the case remanded for a new trial.

I am authorized to state that Justice Carley and Justice Melton join in this dissent.

7 Yancey v. State, 275 Ga. 550, 558 (570 SE2d 269) (2002) (emphasis supplied); see also Browner v. State, 278 Ga. 316, 319 (602 SE2d 612) (2004) (“[w]hether a constitutional violation constitutes harmless error depends on whether the State can prove beyond a reasonable doubt that the error did not contribute to the verdict.”) (punctuation omitted).

8 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

9 Orr v. State, 281 Ga. 112 (636 SE2d 505) (2006) (“[m]ost importantly to the harmful error analysis ... is a note from the jury . .. requesting to hear the [improperly admitted evidence] again.”). It is also noteworthy that the State is required to meet a much higher burden in the present case to establish harmless error because the error violated Richard’s constitutional rights, unlike the situation in Orr.

10 278 Ga. at 319 (quoting Rowe v. State, 276 Ga. 800, 804 (582 SE2d 119) (2003)).

11 Id.

12 Majority opinion at 406.

13 Brawner, 278 Ga. at 319 (“[i]n contrast with the [admissible] testimony . . . the declarant’s [inadmissible] hearsay statement [was] placed before the jury unimpeached because the declarant did not testify.”).

14 Majority opinion at 406.