October 6, 2014
Murder. Fulton Superior Court. Before Judge Adams.
Benjamin D. Goldberg, for appellant.
Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Joshua D. Morrison, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.
BLACKWELL, Justice. All the Justices concur.
Alton Hooks was tried by a Fulton County jury and convicted of the murder of Diane Gibbs, the murder of Jimmy Gibbs, and the unlawful possession of a knife during the commission of a felony. Hooks appeals, contending that the evidence is legally insufficient to sustain his convictions, that the trial court erred when it denied his motion for a mistrial, and that it erred when it admitted certain evidence. Upon our review of the record and briefs, we see no error, and we affirm.
[295 Ga. 836] 1. Viewed in the light most favorable to the verdict, the evidence shows that Diane lived with her son Jimmy in Overlook Atlanta, an apartment complex in west Atlanta. For awhile, Diane was in a romantic relationship with Hooks. By December 1999, however, the relationship had soured, and around that time, Hooks told a relative that Diane was " going to make [him] do something to her." On December 15, a neighbor saw Hooks in the apartment that Diane and Jimmy shared, noting that Hooks stood by the front door " [p]ractically the whole day," which the neighbor thought was unusual.
Two days later, relatives of Diane and Jimmy went to the apartment, concerned that they had not heard from Diane or Jimmy. When no one answered the door, the relatives summoned a security guard, who, in turn, called for police officers. The responding officers found no evidence of a forced
entry into the apartment. They entered the apartment, however, and found a trail of blood, which they followed to a bedroom. In the bedroom closets, the officers discovered Diane and Jimmy's bodies. Both had sustained stab wounds to their necks, and Jimmy had sustained a number of defensive wounds as well. The evidence showed that Diane had been stabbed in a bed in that same bedroom, and she then had been dragged to one of the closets. Jimmy evidently had been stabbed in another room, and he then had been dragged to a second closet in the bedroom in which Diane was stabbed. Although the type of knife used to inflict the neck wounds could not be identified definitively, at least some of the [295 Ga. 837] defensive wounds that Jimmy sustained were shown to have been inflicted with a serrated knife.
In addition, investigators found blood in a bathroom of the apartment -- both on a sink and a shower curtain -- which was consistent with someone recently having tried to wash blood from his body. Investigators also found a note in the apartment, which read: " I[,] Alton[,] just killed Diane and myself. Please send help[.]" A handwriting expert later compared this note to a known sample of Hooks's handwriting and concluded that Hooks wrote the note.
Also on December 17, an employee of a motel just outside Atlanta observed blood on the window of a room in which Hooks was staying, and the same employee saw Hooks lying on the bed, his hand in a Styrofoam container. The employee called for police officers, and when officers responded, they found Hooks barricaded in his room, armed with a serrated knife. The officers said nothing to Hooks about Diane and Jimmy, but Hooks repeatedly asked them " what he was going to be charged with," and he cut himself with the knife several times. After a twelve-hour standoff, a SWAT team entered the room by force, officers apprehended Hooks, and they took him to a hospital, where he was arrested for the murders of Diane and Jimmy.
At trial, evidence of an earlier incident involving Hooks and his ex-wife was admitted as a similar transaction. In that incident, Hooks -- armed with a box cutter -- had entered the home of his ex-wife and cut her neck as she slept in her bed. A police officer testified that Hooks left a note in the home of his ex-wife, in which he said that he had cut her and intended to kill himself.
Hooks contends that the evidence is legally insufficient to prove beyond a reasonable doubt that he is guilty of the crimes of which he was convicted. In support of this contention, Hooks points to the lack of any eyewitness to the murders, the limited physical evidence, and the fact that he had an alibi on December 16, 1999, which, he says, was the date that the medical examiner concluded that the murders occurred. But Hooks is mistaken in his assertion that the medical examiner testified conclusively that the murders occurred on December 16. To the contrary, the medical examiner testified that the murders could have occurred on December 15 or 16. Moreover, even if the jury believed the testimony about Hooks's alibi, that testimony did not give Hooks an alibi for the entire day of December 16. And to the extent that there were conflicts in the evidence, it was for the jury as the finder of fact " to resolve [those] conflicts." Tolbert v. State, 282 Ga. 254, 256 (1) [295 Ga. 838] (647 S.E.2d 555) (2007) (citation omitted). In all, the evidence adduced at trial -- including the threatening statement made by Hooks about Diane prior to the murders, his suspicious behavior in the apartment that Diane and Jimmy shared around the time of the murders, his confession in a note left in the apartment, his conduct in the motel (including his repeated questioning of police officers about what charges he would be facing), and his almost identical assault upon his ex-wife -- was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Hooks was guilty of two counts of malice murder and one count of unlawful possession of a knife during the commission of a felony. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
2. Hooks claims that the trial court erred when it denied his motion for a mistrial after a police officer, he says, commented upon his invocation of his right to remain silent. The comment about which Hooks complains was made as the officer was testifying about having met Hooks in the hospital after he was removed from his motel room. In response to a question about " when, if ever," the officer placed Hooks under arrest, the officer replied, " I read him his rights immediately. He indicated that he was in too much pain --." Hooks promptly objected to this testimony, claiming that it was an impermissible comment upon his invocation of his right to remain silent, and Hooks moved for a mistrial. See Reynolds v. State, 285 Ga. 70, 71 (673 S.E.2d 854) (2009). The trial court denied his motion.
Whether to declare a mistrial is a matter committed to the sound discretion of the trial court. McKibbins v. State, 293 Ga. 843, 848 (3) (750 S.E.2d 314) (2013). Here, even to the extent that a juror might have surmised that the police officer intended to say that Hooks was in too much pain " to speak" or " to provide a statement," such testimony would indicate only that Hooks did not speak to the officer at that time because he was in too much pain to do so, not because he was invoking his right to remain silent. And in any event, the trial court instructed the jury that it could not consider any invocation of such a constitutional right in reaching its verdict. See Fletcher v. State, 284 Ga. 653, 656 (4) (670 S.E.2d 411) (2008). In this case, we conclude that the trial court acted within its discretion when it determined that a mistrial based on the police officer's incomplete response to the question about Hooks's arrest was not " essential to preserve [Hooks's] right to a fair trial." McKibbins, 293 Ga. at 849 (3) (citation and punctuation omitted).
3. Hooks also contends that the trial court erred when it allowed a police officer to testify about the contents of the note that Hooks left [295 Ga. 839] when he attacked his ex-wife. The trial court permitted the officer to testify that Hooks " admitt[ed] [in the note] that he had cut her and intended to kill himself." But the State did not produce the note itself, and Hooks contends that the State failed to present competent evidence that the note had been destroyed. Consequently, the testimony about the contents of the note, Hooks argues, violated the best evidence rule.
Under our former Evidence Code, the old best evidence rule provided that " [t]he best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for[,]" that " [i]f a paper shall have been lost or destroyed, proof of the fact to the court shall admit secondary evidence[,]" and that whether a diligent search has been made for the lost evidence is a question " for the sound discretion of the [trial] court." Former OCGA § § 24-5-4 (a) and 24-5-21. Here, the State accounted for the absence of the note, informing the trial court that one of the prosecuting attorneys in this case had diligently sought to obtain the note from the prosecuting attorney of the county in which the similar transaction had occurred, but she was unable to procure the note because it had been destroyed during the 13 years since the similar transaction occurred. Because the State explained why it was unable to produce the note, it was within the trial court's discretion to allow the police officer to testify about his recollection of what the note said.
See Johnson v. State, 209 Ga.App. 395, 396 (2) (433 S.E.2d 638) (1993).
All the Justices concur.