HEARD v. PAYNE Et Al.

FOURTH DIVISION
DOYLE, P. J.,
RICKMAN and COOMER, 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
May 28, 2019
In the Court of Appeals of Georgia
A19A0333. HEARD v. PAYNE et al.
RICKMAN, Judge.
Following Vickie Heard, Michael Bryan Payne (“Bryan”), and Larry Payne’s
competing claims to a winning lottery ticket, the Georgia Lottery Corporation (“the
Corporation”) filed a complaint for interpleader seeking a determination as to which
party had a right to the lottery funds. The case was tried before a jury, and the jury
found that Larry was the rightful owner of the lottery ticket at issue. The trial court
entered an order on the verdict, directing the Corporation to pay the prize winnings
to Larry. Heard appeals from the trial court’s order. Heard contends that the trial court
erred by denying her motion to exclude the testimony of a witness, allowing the same
witness to testify that Bryan agreed to take a polygraph examination, and by allowing
the Paynes to introduce certain evidence. For the following reasons, we affirm.
We must construe the evidence in favor of the jury’s verdict. See Evans v.
Cushing Properties, 197 Ga. App. 380 (1) (a) (398 SE2d 306) (1990). So construed,
the evidence showed that Larry lives in Alabama. On February 13, 2015, Larry and
his cousin drove from Alabama to Tennessee to pick up a car. After purchasing the
car, Larry stopped in Trenton, Georgia and bought a lottery ticket. When he got home,
Larry gave the lottery ticket to his cousin so that his cousin could check the numbers
for a winner on his computer. In June 2015, Larry’s cousin gave Larry four lottery
tickets, including Larry’s ticket from February, and told him that he had not checked
the numbers for a winner. Larry put the tickets underneath the sun visor in his car.
Approximately one month later, Larry let Bryan, his nephew, borrow his car
to drive to Georgia. Larry eventually remembered that the lottery tickets were in the
car, and he called and asked Bryan to redeem them for him in Georgia. In Georgia,
Bryan stopped at a gas station to check all four tickets. The gas station clerk informed
Bryan that three were worth $7 each and that one was worth more than $600, so he
would have to call the Corporation for information about the pay out. Initially, Bryan
thought he might keep the money for himself and did not call Larry to update him on
the status of his tickets.
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Two days later, Bryan was working at Heard and her husband’s auto body shop
when he told Heard that he needed to take the next day off of work to cash in the
lottery ticket. Bryan asked if someone could accompany him to Georgia, and Heard
volunteered her sister to ride with him. After arriving at the Corporation, an employee
checked the ticket and informed Bryan and Heard’s sister that the ticket was worth
$1 million. Upon returning to the body shop, Heard’s sister told Heard the value of
the ticket, and Bryan stated that he needed to call and tell Larry about the winning
ticket. Heard, however, encouraged Bryan to wait and surprise Larry later in the
week.
Later in the week, Heard’s husband called Larry, his cousin, and asked him to
come to the shop. At the shop, Heard told Larry that Bryan had won $1 million in the
lottery but that Bryan had stolen her lottery ticket. Heard told Larry that the numbers
on the ticket were the same numbers that she picked every time. But when Heard
confronted Bryan, he stated he got the ticket from the sun visor of Larry’s car.
Heard contacted the Etowah County Sheriff’s Department about the alleged
theft. She told the assigned investigator that she knew the ticket was hers because she
always played certain numbers. Although Heard informed the investigator that she
purchased the ticket in Trenton, Georgia, she was unsure of which gas station she
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bought the ticket from. Notably, during one of her many phone calls to the
Corporation, Heard repeatedly asked the Corporation employee to tell her which gas
station the ticket was purchased from. Ultimately, the investigator determined that no
charges should be brought against Bryan. The investigator testified that Bryan agreed
to take a polygraph examination and that his agreement to take the examination
factored into his decision not to prosecute.
The investigator for the Corporation testified that Heard also told him that the
numbers on the ticket were numbers that she always played. He also testified,
however, that the ticket in question was a quick pick lottery ticket, meaning that the
computer picked the numbers, which was inconsistent with Heard’s statements that
she chose the numbers.
A forensic document examiner testified as an expert that the watermark on the
lottery ticket was very faint, which would be consistent with having been left in an
automobile in Alabama during the summer.
Heard’s husband testified that on the day the lottery ticket was purchased, he
and Heard had “switched phones” and that he stayed at the shop all day. The phone
records for the phone that Heard was allegedly using on that date showed that calls
were made from Irondale and Moody, Alabama. When asked what Heard would have
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been doing in Irondale or Moody, Heard’s husband responded, “well, if she went,
that’s the place where we pick up cars.” Heard testified that she did not take a phone
with her on the date she bought the lottery ticket when she traveled alone from
Alabama to Trenton, Georgia. Instead, she “carr[ied] a pistol.”
The Corporation filed a complaint for interpleader seeking a determination as
to whether Larry, Bryan, or Heard had a right to the lottery funds. The trial court
granted a partial directed verdict against Bryan because he testified at trial that he did
not claim any interest in the ticket. The jury found “in favor of Defendant Larry Payne
and that he is the rightful owner of the Powerball lottery ticket at issue.”
1. Heard contends that the trial court erred by denying her motion to exclude
the Sheriff’s Office investigator from testifying. Heard argues that the investigator’s
testimony was not relevant to any issue in the case.
“All relevant evidence shall be admissible, except as limited by constitutional
requirements or as otherwise provided by law or by other rules. . . . Evidence which
is not relevant shall not be admissible.” OCGA § 24-4-402. “[T]he term “relevant
evidence” means evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” OCGA § 24-4-401. “[E]vidence having a
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tendency to establish facts in issue is relevant and admissible, and no matter how
slight the probative value, our law favors admission of relevant evidence.” (Citation
and punctuation omitted.) City of Atlanta v. Bennett, 322 Ga. App. 726, 728 (1) (746
SE2d 198) (2013). “A trial court’s ruling that evidence is relevant will not be reversed
absent abuse of discretion.” Central of GA Railroad Co. v. Ross, 342 Ga. App. 27, 32
(2) (802 SE2d 336) (2017).
Here, Heard was the one who called the investigator to report that her ticket
had been stolen. The investigator’s testimony regarding his investigation and
conversations he had with Heard where she did not remember what gas station she
purchased the ticket from and that she claimed to always play the specific numbers
on the ticket, was highly relevant to the main issue of the case. Accordingly, the trial
court did not abuse its discretion in failing to exclude the investigator’s testimony.
See Jackson v. Heard, 264 Ga. App. 620, 621 (591 SE2d 487) (2003); Butgereit v.
Enviro-Tech Environmental Svcs., 262 Ga. App. 754, 758 (3) (586 SE2d 430) (2003).
2. Heard contends that the trial court erred by allowing the Paynes to ask the
investigator if he asked Bryan to take a polygraph examination.
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Heard filed a motion in limine to exclude any reference regarding Bryan taking
a polygraph examination. The trial court granted Heard’s motion but cautioned him
that if he attacked the sufficiency of the investigator’s investigation then he “could
open the door to the polygraph information.”
During Heard’s cross-examination of the investigator, Heard focused on the
inadequacies of his investigation. At the conclusion of Heard’s cross-examination,
the Paynes’ trial counsel argued that Heard had opened the door to the introduction
of evidence about the polygraph. The trial court agreed and allowed Payne to ask the
following questions:
Trial Counsel: Okay. As part of your investigation, did you ask Bryan
Payne to take a polygraph test?
Investigator: I did.
Trial Counsel: Did he agree to do so?
Investigator: He did.
Trial Counsel: Did the agreement that he agreed to take a test factor into
your decision not to prosecute?
Investigator: It did.
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The jury was never told whether a polygraph examination took place or, if it did, what
the results of that examination were.
“The general rule in Georgia is that the results of polygraph tests, including
voice stress tests, whether favorable or unfavorable to an accused, are not admissible
in evidence, as they are not considered reliable.” Parfenuk v. State, 338 Ga. App. 95,
98 (2) (789 SE2d 332) (2016).
Here, the Paynes did not seek to admit the results of the polygraph test or even
that a test occurred, they sought the testimony that Bryan agreed to take the polygraph
to rebut the inference created by Heard that the investigator did not do a thorough or
lengthy investigation. They sought to introduce the evidence to help explain the
conduct of the investigator. Accordingly, the trial court did not err in finding that
Heard opened the door and allowing the questions regarding whether Bryan agreed
to take a polygraph test. See Newberry v. State, 260 Ga. 416, 418 (3) (395 SE2d 813)
(1990) (holding that the defendant opened the door to testimony about the witness
taking a polygraph test because “the state can admit evidence that a witness has taken
a polygraph exam to explain a witness’ conduct if that witness’ conduct is relevant
to the issues on trial.”); Bantz v. Allstate Insurance Co., 263 Ga. App. 855, 856-857
(1) (589 SE2d 621) (2003) (reversing the trial court because it erroneously excluded
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evidence regarding a witness changing his story after being told the results of his
polygraph test).
3. Heard contends that the trial court erred by allowing the Paynes to introduce
a bill of sale and the title for the car that Larry purchased the day he bought the lottery
ticket as well as Larry’s credit card statement showing where he used his credit card
on the same day.
Pretermitting whether the trial court erred in admitting the evidence under an
exception to the hearsay rule, their introduction was harmless because “the admission
of hearsay is harmless when it is cumulative of legally admissible evidence showing
the same fact.” (Citation and Punctuation omitted.) Travelers Property Casualty Co.
of America v. SRM Group, 348 Ga. App. 136, 144 (5), n. 2 (820 SE2d 261) (2018).
Here, the title, bill of sale, and credit card statement were introduced to show
that Larry traveled to Tennessee to purchase a car on the same date that he purchased
the winning lottery ticket. However, other evidence was admitted to show the same
information, including Larry and his cousin’s testimony to that effect and a date-
stamped photograph Larry took after he purchased the vehicle.
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Accordingly, any erroneous introduction of the challenged evidence was
harmless error. See Smith v. Stacey, 281 Ga. 601, 601-602 (1) (642 SE2d 28) (2007);
White Horse Partners LLLP v. Monroe County Board of Assessors, ___ Ga. App. ___
(2) (824 SE2d 57) (2019).
Judgment affirmed. Doyle, P. J., and Coomer, J., concur.
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