November 17, 2014
Aggravated assault, etc. Clayton Superior Court. Before Judge Simmons.
Deborah W. Young, for appellant.
Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.
DILLARD, Judge. Doyle, P. J., and Miller, J., concur.
Following a trial by jury, Elijah Ames Brittain was convicted of aggravated assault, kidnapping, and burglary. Brittain appeals these convictions, contending that the trial court erred by (1) denying a motion to complete the record, (2) admitting hearsay evidence under the doctrine of forfeiture by wrongdoing, (3) permitting similar-transaction evidence, and (4) denying his motion for new trial when he received ineffective assistance of counsel in numerous regards. For the reasons set forth infra, we affirm.
Viewed in the light most favorable to the jury's guilty verdict, the record reflects that on May 26, 2007, the victim, Chastity Jones, was asleep in her Clayton County house with only her infant daughter at home when she suddenly awoke around 4:00 a.m. to find Brittain in her bedroom. Her husband, Brutus, had left the home earlier in the evening but had not yet returned. Brittain was acquainted with both Jones and Brutus because Brutus was a member of Brittain's restaurant-robbery crew.
Brittain told Jones that Brutus had gotten him into some trouble before forcing Jones to leave her baby, placing her in the trunk of a car, binding her with a phone cord to the point that ligature marks were left on her wrists four days later, and driving her to a secluded location in Cobb County. Evidence later established that Brittain was familiar with this part of Cobb County from previously committing a robbery in the area and because one of his girlfriends worked nearby.
Once they reached this location, Brittain tied Jones to a tree and threatened her life at gunpoint. At some point, Brittain decided to [329 Ga.App. 690] leave but indicated that he would return to kill Jones if he did not hear from Brutus within the next 30 minutes. Nevertheless, in the interim, Jones managed to escape and run to a nearby home, where the occupant allowed her to use his cell phone and drove her to a gas station to call 911.
Using her rescuer's cell phone, Jones called various friends, explaining whet had transpired and pleading with them to check on her child. Then, once at the gas station, Jones called 911 from a pay phone, the recording of which was played for the jury
without objection, and the parties stipulated that the call occurred at or near the time of the event. Cobb County officers responded to find Jones barefoot, clad in pajamas, covered in mud up to her knees, and carrying only a small personal bag and a phone cord. Upon realizing that Jones had been abducted from Clayton County, both she and investigation of the case were then turned over to authorities from that jurisdiction.
Meanwhile, in response to Jones's frantic calls, friends converged at her house to find her infant child alone and unharmed but lying on the bedroom floor. The home's garage was left wide open and the door unlocked. Indeed, Jones's husband, Brutus, had not been home since before Jones went to bed the previous night, and he was considered missing. But unbeknownst to either Jones or her friends at that time, just a few hours earlier around 4:45 a.m., Fulton County police responded to a report of a body in the roadway near the border with Clayton County. The body was later identified as that of Brutus Jones, who had been shot in the head. Brutus's cell phone and keys were both missing, and although there were bloody tire tracks near the body, no vehicle was found in the immediate vicinity. Brutus's vehicle, however, was recovered two days later, abandoned not far from the street where his body was found. The passenger-seat headrest was splattered with dried blood, and the garage-door remote was missing.
When law enforcement realized that Jones's husband had been killed, some of her interviews with the various jurisdictions involved in the two investigations were videotaped. And during those interviews, she explained to law enforcement that Brittain had come by the couple's home at approximately 10:35 on the night of the abduction and had rather ominously asked if he could look around the upstairs by suggesting that he was considering whether to rent a [329 Ga.App. 691] similar house. Jones also indicated that Brittain was driving a red Pontiac Grand Am that evening.
In the aftermath of all that transpired, Jones immediately moved out of the Clayton County residence she had shared with Brutus, and in fact moved five times within the next year out of fear. However, in June 2008, Jones--who was accompanied by a good friend--applied for food stamps through Fulton County DFCS, where one of Brittain's paramours, Montessia Tinch, worked as a food-stamp processor. During her relationship with Brittain, Tinch frequently allowed him to use her car, a red Pontiac Grand Prix. And as part of Tinch's job with DFCS, she could access an applicant's home address. Tragically, two days after Jones applied for food stamps, she went missing under circumstances indicative of foul play (more fully described infra), and was never heard from again.
Brittain's prosecution for burglary, kidnapping, and aggravated assault related to the May 2007 abduction was stalled after Jones disappeared in 2008, but the case was reinvigorated and brought to trial after a cellmate came forward with information Brittain shared about Jones's abduction, Brutus's murder, and other cases that so greatly disturbed the cellmate that he felt compelled to approach law enforcement. At trial, in addition to corroborating much of Jones's version of the abduction by providing details Brittain had shared, the cellmate also testified that Brittain claimed to have a five-step method to problem-solving, with step two being to " get rid" of the problem, even if that means murder.
Brittain was tried and convicted of the offenses related to the 2007 abduction, and this appeal follows. We will address Brittain's claimed errors in turn, those being that the trial court erred by (1) denying a motion to complete the record, (2) admitting hearsay evidence under the doctrine of forfeiture
by wrongdoing, (3) permitting similar-transaction evidence, and (4) denying his motion for new trial when he received ineffective assistance of counsel in numerous regards.
[329 Ga.App. 692] 1. First, Brittain argues that the trial court erred in denying a motion to complete the record when various DVDs played for the jury at trial and entered into evidence as exhibits were not transcribed.
To begin with, the relevant motion and a subsequent order continuing the motion-for-new-trial hearing do not appear in the appellate record, but Brittain attached a copy of the motion and order as an exhibit to his brief. It is, of course, well established that exhibits attached to an appellate brief, but not appearing in the record transmitted by the trial court, " cannot be considered by this court and afford no basis for reversal."  Nevertheless, Brittain's argument that the lack of transcription of the DVDs of videotaped police interviews resulted in an incomplete record is without merit. Indeed, the relevant DVDs were admitted as exhibits into the record. Accordingly, the lack of transcription of the DVDs does not constitute reversible error because the DVDs are available for review. And the fact that the DVDs were stopped and interrupted by live questions and testimony, which were transcribed, does not alter our conclusion. For these same reasons, Brittain's separate enumeration that his trial [329 Ga.App. 693] counsel rendered ineffective assistance by failing to object to an incomplete transcription of trial is likewise without merit.
2. Next, in a very cursory argument, Brittain contends that the trial court erred in permitting the State to present " multiple hearsay" regarding Jones's May 2007 abduction under the forfeiture-by-wrongdoing doctrine when there was no proof that the doctrine should apply.
Although Brittain makes vague reference to alleged hearsay statements by various
witnesses, he provides little detail or specific record citations to the statements he contends were admitted in error by the trial court. In this respect, we note that the record and transcripts in this appeal comprise ten volumes with a trial that lasted one week and involved testimony from more than twenty-five witnesses. Suffice it to say, this Court will not " cull the record in search of error on behalf of a party,"  and if we have missed something in the record or misconstrued an argument, " the responsibility rests with counsel." 
Additionally, Brittain appears to conflate arguments regarding his Sixth Amendment right to confront the witnesses against him with the admission of certain hearsay evidence. Nevertheless, we will address both of these contentions in turn.
(a) Sixth Amendment Right to Confrontation.
Prior to trial, the State filed a motion seeking to permit the admission of law enforcement's videotaped interviews with Jones pursuant to the doctrine of forfeiture by wrongdoing. And following a hearing on this motion, the trial court determined that the State had shown by a preponderance of the evidence that Brittain procured Jones's unavailability to testify at trial and ruled that the testimonial evidence would be admissible. Brittain appears to take issue with this determination.
Our analysis necessarily begins with the text of the Sixth Amendment to the United States Constitution, which provides that " [i]n all criminal prosecutions, the accused shall enjoy the right ... to be [329 Ga.App. 694] confronted with the witnesses against him."  This clause applies to witnesses against the accused--" in other words, those who 'bear testimony' "  and, consistent with the framers' original understanding, " [t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine."  Additionally, the Supreme Court of the United States has determined that interrogations by law-enforcement officers fall within the ambit of testimonial statements with which the Confrontation Clause is concerned.
Nevertheless, in Giles v. California, the Supreme Court of the United States made
clear that, notwithstanding a criminal defendant's Sixth Amendment right to confront the witnesses against him, the common-law doctrine of forfeiture by wrongdoing permits the introduction of statements made by a witness who has been " 'detained' or 'kept away' by the 'means or procurement' of the defendant."  Indeed, Justice Scalia--after briefly describing the founding--era history of this doctrine-succinctly explained in Giles that " [t]he terms used to define the scope of the forfeiture rule suggest that the exception applied only when the defendant engaged in conduct designed to prevent the witness from testifying." 
[329 Ga.App. 695] The Supreme Court of the United States first addressed the doctrine of forfeiture by wrongdoing in Reynolds v. United States, adopting the rule at that time. Indeed, the doctrine was referenced in two of the Court's other seminal Confrontation Clause cases, Crawford v. Washington  and Davis v. Washington. But in Giles, the Court made clear, in no uncertain terms, that the doctrine applies even when the defendant has not had a prior opportunity to confront the witness by cross-examination, and even cited to a case from our own Supreme Court-- Williams v. State --to reinforce this long-held
understanding of the rule.
[329 Ga.App. 696] Finally, although the Supreme Court of the United States has taken no position on the standard necessary to demonstrate forfeiture by wrongdoing, it has noted that both federal and state courts tend to hold the Government to a preponderance-of-the-evidence standard to establish same. Thus, we will review Brittain's enumeration of error using that standard.
In the case sub judice, the State sought permission to admit at trial Jones's testimonial statements to law enforcement--which were memorialized in videotaped interviews--and sought to show that Brittain caused Jones's 2008 disappearance in order to prohibit her from testifying against him. And at the hearing, the State presented the testimony of various friends, family members, and law-enforcement agents who described the circumstances of Jones's 2008 disappearance.
This evidence shows that on the morning of June 28, 2008, Jones left her baby daughter with her best friend with the intent to return for the child later that morning; however, Jones never came back for her child and did not respond to numerous phone calls from the friend or the friend's mother. The friend testified that neither was typical of Jones's behavior and was instead quite unusual. The friend then went to Jones's house around 2:30 p.m., just as Jones's older daughter was returning home from school. There was neither an answer at the door to the home nor, again, to Jones's phone, so the friend decided to call Jones's mother (with whom Jones lived); but the mother had not heard from Jones either. The friend then picked up Jones's oldest child from school. Again, it was Jones's usual practice to pick her son up from school, but she had not done so on this particular day.
Then, upon returning to Jones's residence, the friend and Jones's mother entered the home. As they walked through the house, they began to notice things that were amiss in the usually tidy abode: knives lying out on the kitchen counter; a bedroom TV left turned on; an ironing board left out in Jones's upstairs bedroom; an emergency trunk-release severed from a vehicle and sitting on the floor beside the ironing board; the baby's stroller sitting in the garage (when it would normally be in the trunk of Jones's missing car); and drops of blood in the garage and portions of the house, including leading upstairs and in a bathtub.
[329 Ga.App. 697] Law enforcement then arrived on the scene and observed these same things, in addition to a gunshot hole in the ceiling outside of Jones's bedroom and a strange liquid leading from her room, down the stairs, and out into the garage. Thus, given the blood and other unusual circumstances, foul play was immediately suspected. Then, the next morning, Jones's abandoned vehicle was located, its trunk containing the same strange liquid and a " substantial amount" of blood. A subsequent DNA test of the blood linked it to a descendant of Jones's mother, and Jones was an only child. Following the June 2008 disappearance, Jones was never seen or heard from again, though her mother could not yet bring herself to have her daughter declared dead.
Police immediately suspected Brittain, who was not incarcerated at the time, in Jones's disappearance after speaking with her family and friends, and they linked Brittain to Tinch, who worked in the DFCS office where Jones had recently applied for food stamps. In addition to this testimony, the State also presented the testimony of Brittain's former cellmate, who claimed that Brittain said he
was not worried about Jones testifying against him at his trial.
At the hearing's conclusion, the State asked that the trial court permit it to introduce into evidence at trial Jones's statements to law-enforcement officers and her videotaped interviews. And finding by a preponderance of the evidence that Brittain had procured Jones's absence for purposes of preventing her testimony, the trial court agreed. Accordingly, contrary to Brittain's contentions that there was a lack of proof to show that the doctrine of forfeiture by wrongdoing should apply, the record reflects that the trial court was presented with ample evidence to support its finding by a preponderance of the evidence, and that finding was not clearly erroneous. As such, Brittain has not established any violation of his Confrontation Clause rights.
In addition to the testimonial hearsay statements Jones made to law enforcement, at trial, the court also admitted nontestimonial hearsay statements Jones made to friends regarding her abduction by Brittain in 2007. Brittain appears to take issue with the admission of both the testimonial and nontestimonial hearsay under the forfeiture-by-wrongdoing exception.
[329 Ga.App. 698] Brittain's case was tried in 2011, prior to the effective date of Georgia's new Evidence Code. But assuming, without deciding, that the trial court admitted testimonial and nontestimonial hearsay under the forfeiture-by-wrongdoing doctrine and that the prior Evidence Code would not have permitted admission of hearsay evidence under a forfeiture-by-wrongdoing exception, any error in the admission of same does not justify reversal because the same evidence would be admissible at a second trial. Indeed, Georgia's new Evidence Code has codified the forfeiture-by-wrongdoing exception for hearsay evidence, providing that " [a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness" shall not be excluded by the hearsay rule if the declarant is unavailable as a witness.
Because OCGA § 24-8-804 (b) (5) is a procedural statute, it would apply to a retrial if
we were to reverse this case. Accordingly, even [329 Ga.App. 699] if the trial court erroneously admitted testimonial and nontestimonial hearsay under the prior Evidence Code, the same evidence would be properly admitted at a second trial due to a procedural change in the laws of evidence.
As discussed in Division 2 (a) supra, the trial court was not clearly erroneous in determining (by a preponderance of the evidence) that Brittain procured Jones's unavailability for the purpose of preventing her testimony. And to the extent that Brittain argues that there was a lack of evidence of unavailability because the State did not attempt to subpoena Jones, we note that " [a] finding regarding the inaccessibility of a witness and a party's diligence in searching for a witness lies within the sound discretion of the trial court, and, absent a manifest abuse of discretion, will not be disturbed on appeal."  Here, there was no abuse of discretion in the trial court's determination that Jones had been rendered " unavailable" when the evidence showed that Jones--a single mother to three children--suddenly vanished under circumstances that immediately suggested foul play and were investigated by law enforcement, and she had not been heard from in the years since her disappearance.
As for the testimony of the cellmate regarding the information Brittain shared with him (which Brittain seems to contend was inadmissible hearsay), we note that this testimony was admissible because " a defendant's incriminating statement is admissible when it constitutes an admission against the defendant's penal interest [and] [329 Ga.App. 700] a defendant's declaration against penal interest is the admission of a party-opponent."  This applies to Brittain's statements tending to implicate himself in the murder of Brutus Jones, the 2007 abduction of Chastity Jones, the commission of robberies with Brutus Jones, and similar transactions admitted at trial. Accordingly, any inadmissible hearsay
from other sources as to these matters was cumulative. Additionally, some of Brittain's statements to the cellmate were cumulative of Chastity Jones's recorded statements regarding her interactions with Brittain on the evening in question.
Finally, although Brittain contends that the State only introduced hearsay evidence to establish similar transactions at trial, this contention is likewise without merit for the reasons explained infra.
3. Next, Brittain argues that the trial court erred by admitting evidence of similar transactions " in the absence of proof that [he] was connected to the alleged similar transactions and in the absence of the other incidents being similar." And parsing through appellant's brief and this specific enumeration of error (which, yet again, is bereft of any citation to authority or the record), it appears that Brittain also contends that the trial court erred in permitting the State to present evidence of similar transactions by proffer in lieu of witness testimony. Once again, we disagree.
The record reflects that the State filed notice of its intent to introduce evidence of various similar transactions, including the 2006 murder, kidnapping, and aggravated assault of Octavia Atkins and the 2007 breaking and entering into the home of Samiah Blake. The State sought to introduce these incidents to show " course of [329 Ga.App. 701] conduct, bent of mind, plan, scheme, motive, identity, intent, and lack of mistake." Similar-transaction evidence was admissible under our former Evidence Code if the State showed that
(1) it [sought] to introduce the evidence not to raise an improper inference as to the accused's character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility; (2) there [was] sufficient evidence to establish that the accused committed the independent offense or act; and (3) there [was] a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.
Prior to Brittain's trial for Jones's 2007 abduction, the trial court conducted a hearing at which it permitted the State to introduce by proffer the facts of two similar transactions. Then, at the conclusion of each proffer, the trial court determined that the facts were sufficiently similar to those at issue in the prosecution for burglary, aggravated assault, and kidnapping of Jones.
First, as to Brittain's argument that the trial court erred by permitting the State to present pre-trial evidence of the similar transactions by proffer (as opposed to witness testimony), we have previously rejected the argument that such a pre-trial procedure is erroneous when a defendant has the opportunity to cross-examine similar-transaction witnesses at trial.
Second, as to Brittain's argument that the evidence was insufficient to show the necessary similarities between the charged offense and the other incidents, this contention is likewise without merit. We note, of course, that " [a]bsolute proof is not required that a defendant committed the offense in a similar transaction."  Instead, the State need only prove that the defendant " committed the prior offense by a preponderance of the evidence."  Additionally, in determining the [329 Ga.App. 702] admissibility of similar-transaction evidence, " the court should focus on the similarities, not the differences, of the two occurrences." 
(a) Octavia Atkins. At the pre-trial hearing, the State proffered evidence regarding the murder, kidnapping, and aggravated assault of Octavia Atkins in Forsyth County in August 2006, less than one year prior to Jones's May 2007 abduction. The State's proffer showed that Atkins was the girlfriend of Dandre Shabazz, who--like Brutus Jones--was a member of Brittain's restaurant-robbery crew. Shabazz was taken into custody in 2006 and made an agreement with Brittain that Brittain would provide Atkins with money during his incarceration.
In August 2006, Atkins's nude body was found in an abandoned Forsyth County home with (1) ligature/strangulation marks about her neck, (2) her feet covered in mud, and (3) her body dirtied with foliage. And just a few days before the discovery of her body, she received a portion of the money Brittain promised. DNA evidence recovered from the body could not exclude Brittain as a suspect, and the location of her body was not far from the scene of a restaurant robbery Brittain allegedly committed with Atkins's boyfriend. Additionally, Atkins's vehicle was later found one mile from Brittain's home. At trial, the State established all of these facts by the testimony of Shabazz and investigating officers. The State also presented the testimony of Brittain's cellmate, to whom he mentioned Octavia Atkins.
The trial court appropriately determined that the facts of the Atkins murder were sufficiently similar to the abduction of Jones in [329 Ga.App. 703] that both cases involved the kidnapping of a significant other of a member of Brittain's restaurant-robbing crew, both victims were left with ligature marks, and both were taken to secluded wooded areas. Additionally, both women were taken to parts of the suburban
metro Atlanta area with which Brittain was alleged to have independent familiarity from committing robberies. Accordingly, based on the foregoing similarities, we cannot say that the trial court abused its discretion in admitting this evidence.
(b) Samiah Blake. As to Samiah Blake, at the pre-trial hearing, the State proffered evidence regarding an incident in which Brittain broke into her home to confront her. Specifically, the State showed that between March and April 2007 (not long before Jones's 2007 abduction), Brittain was romantically involved with Blake. Early one morning during that time period, while alone, Blake suddenly encountered Brittain in her home.
Brittain confronted Blake with a handgun, and she was unsure of how he had obtained access to her home, though it was later determined that he had hidden in and descended from her attic. At trial, Blake testified to these facts and also to the fact that Brittain told her that he came in through the basement before hiding in her attic, presumably all night.
Following the State's proffer, the trial court found the incident sufficiently similar and, in doing so, the trial court did not err. Indeed, both incidents involved victims known to Brittain, his surreptitious entry into their homes during early morning hours, and confrontations with a handgun. Accordingly, this enumeration of error likewise lacks merit.
[329 Ga.App. 704] 4. Finally, Brittain contends that he received ineffective assistance of counsel in numerous regards. But before addressing his contentions, we note that, in general, when a defendant claims that his trial counsel was ineffective, he has the burden of establishing that " (1) his attorney's representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."  And when a trial court determines that a defendant did not receive ineffective assistance, we will affirm that decision on appeal unless it is clearly erroneous. With these guiding principles in mind, we turn now to Brittain's specific arguments.
(a) Abandoned arguments. In the portion of Brittain's appellate brief devoted to his claim of having received ineffective assistance of counsel, he lists eleven instances in which he contends that trial counsel performed deficiently, including five inexplicable subparts to one of these instances. However, most of Brittain's contentions arise to no more than a list of short, vague, conclusory statements. And pursuant to the
rules of this Court, an appellant must support enumerations of error with argument and citation of authority, and " mere conclusory statements are not the type of meaningful argument contemplated" by our rules. Accordingly, the majority of Brittain's arguments in this regard have been abandoned by his failure to provide citation to authority or meaningful argument and will not be addressed.
[329 Ga.App. 705] (b) Failure to cross-examine cellmate regarding first-offender sentences. Brittain gives slightly more attention to his argument that trial counsel rendered ineffective assistance by failing to cross-examine a former cellmate regarding the fact that he had twice been sentenced as a first offender. Nevertheless, he fails to establish that counsel rendered ineffective assistance in this regard.
The record reflects that Brittain's cellmate pleaded guilty in 2004 to possessing less than one ounce of marijuana, a misdemeanor, and was sentenced as a first offender under OCGA § 16-13-2. Brittain takes issue with the fact that the cellmate then later pleaded guilty to reduced charges in Clayton County in 2009 and requested first-offender treatment without informing the trial court that he had formerly been given such treatment in the misdemeanor drug-possession case. However, this second first-offender sentence was entered pursuant to OCGA § 42-8-60, an entirely separate statute,
and Brittain presents nothing to show or even suggest that the cellmate's prior treatment as a first offender was also under OCGA § 42-8-60 and not OCGA § 16-13-2. As such, there is no evidence that the cellmate was ineligible for first-offender treatment under OCGA § 42-8-60 in 2009, [329 Ga.App. 706] and Brittain has therefore failed to establish that he was in any way prejudiced by counsel's failure to cross-examine the cellmate regarding this issue to attack the cellmate's credibility.
Accordingly, for all of the foregoing reasons, we affirm Brittain's convictions.
Doyle, P. J., and
Miller, J., concur.