DocketNumber: A12A0237
Citation Numbers: 315 Ga. App. 724, 728 S.E.2d 253
Judges: Blackwell
Filed Date: 5/1/2012
Status: Precedential
Modified Date: 9/8/2022
Jose Luis Solis-Morales was tried by a Gwinnett County jury and convicted of aggravated assault,
It is within the sound discretion of the trial court to determine if the probative value of the evidence “is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Quedens v. State, 280 Ga. 355, 361 (4) (629 SE2d 197) (2006) (citation and punctuation omitted); see also Alvelo v. State, 290 Ga. 609, 613 (4) (724 SE2d 377) (2012). Here, Solis-Morales claims that he was unfairly prejudiced when the jury was allowed to view a video recording of a police officer conducting a search of his pockets after he was arrested
First, we disagree with Solis-Morales’s assertion that the video recording is not “probative” because it is irrelevant and cumulative of other evidence. Although Solis-Morales has failed to provide a copy of the video recording with the appellate record,
When the video of the search was shown to the jury, the officer who conducted the search had already testified that he discovered the victim’s keys in Solis-Morales’s pocket. But his testimony on this issue was challenged by Solis-Morales. For example, on cross-examination, the officer acknowledged that it was standard procedure to frisk a suspect at the time he was arrested, that the officers who searched Solis-Morales at the time of his arrest should have found any keys in his pocket, and that, because the keys were on a chain that also included a small pocket knife, the keys would not have been given back to Solis-Morales after being initially discovered by
In addition, we do not agree with Solis-Morales’s claim that the video recording had a tendency to prejudice the jury just because it shows him restrained by handcuffs. First, the State alleges, and Solis-Morales has not shown otherwise, that the video consists of a 38-second recording in which the officer discovers the keys in Solis-Morales’s pocket, Solis-Morales appears to have his arms by his side, and there is no indication that Solis-Morales is wearing handcuffs. Even if it were otherwise, the jury had already heard testimony showing that, at the time the officer claimed to have discovered the keys in Solis-Morales’s pocket, Solis-Morales had been arrested, handcuffed, and transported to the Norcross police station. In fact, several witnesses had specifically testified, without objection, that Solis-Morales was secured and placed in handcuffs at the scene of the home invasion.
Judgment affirmed.
OCGA§ 16-5-21 (a).
OCGA§ 16-7-1 (a).
OCGA§ 16-5-41 (a). In addition, the jury found Solis-Morales not guilty of armed robbery.
See Williams v. State, 269 Ga. App. 512, 513 (2) (604 SE2d 592) (2004).
Solis-Morales and three accomplices were charged with crimes relating to a home invasion in Norcross. One of the victims was able to call 911 during the incident, and Solis-Morales and his accomplices were arrested at the scene. At trial, Solis-Morales’s lawyer argued that even though his client was in the house uninvited, there was no evidence that he directly participated in any of the crimes.
We note that we could affirm the judgment below on this ground alone. See Zellars v. State, 314 Ga. App. 88, 89-90 (2), n. 3 (723 SE2d 319) (2012) (appellant has the burden of showing error by the record, and an appellate court may affirm on the ground that “the appellant failed to present a record sufficient to enable the court to determine whether the trial court has committed reversible error”) (citation and punctuation omitted).
And given that Solis-Morales was found not guilty of the armed robbery of the keys, the jury may have been persuaded by Solis-Morales’s cross-examination of the officer.
Even if this testimony did not appear in the record, most jurors would assume, we expect, that the police usually handcuff someone arrested for armed robbery.