Eduardo De La Cruz was tried and convicted of the murder of
Brenda Gibbs. On appeal, Appellant claims four instances
of trial court error and two claims of error by the motion
for new trial court. We affirm.
in a light most favorable to the jury's verdict, the
evidence adduced at trial established that, at all relevant
times, Appellant and the victim, Brenda Gibbs, worked
opposite shifts at the Production Anodizing plant in Adel,
Georgia. Though the two had a child together, their romantic
relationship was marred with a history of verbal, physical,
and sexual assault. The State adduced testimony that Gibbs
was afraid of Appellant and that, prior to her murder,
Appellant told Gibbs he should kill her, get the money from
her life insurance policy (of which he was the beneficiary),
and take their child to Mexico. Appellant repeated similar
threats in the presence of co-workers.
p.m. on August 19, 1995, Appellant dropped Gibbs off at work
with a promise to pick her up after her shift ended at 5:00
the next morning. Gibbs, her co-worker, Rodney Tippins, and a
security guard were the only people working at the plant that
evening. A couple hours into their shift, Tippins ran into
Gibbs; she appeared as if she had just been crying, though
she would not tell Tippins what was wrong. Around 4:00 a.m.
on August 20, the security guard saw Gibbs and Appellant
together in the laboratory where Gibbs was working.
Gibbs' back was to Appellant and they were not talking.
little after 5:00 a.m., Tippins and the security guard walked
over to the lab where they found Gibbs on the floor bloodied
and unresponsive. She was lying over a partially broken bar
stool covered in blood, and a "t-shape" piece of
wood with nails was lodged in her head. Meanwhile, Appellant
had failed to return to the plant to pick up Gibbs as
processing the scene, law enforcement found a broken
two-by-four and a metal conduit pipe, both of which were
covered in blood. Phosphoric acid had also dripped onto the
floor from a broken glass container. Officers collected
samples from the blood spatter on the cabinets and walls, as
well as a black hair from Gibbs' shirt and a fingerprint
from the pipe. During the autopsy, the medical examiner found
defensive wounds on Gibbs' hands and arms and opined that
Gibbs died from blunt force trauma to the head, likely caused
by being hit with either the two-by-four or conduit pipe. The
medical examiner also clipped the victim's fingernails
and preserved them for potential testing.
spoke with law enforcement and denied having any involvement
in Gibbs' murder. Officers later searched Appellant's
home and car, during which they collected a pair of
Appellant's tennis shoes; the soles of the shoes
fluoresced under a black light. The lead detective, who had
been present at the crime scene and walked through the
phosphoric acid on the floor, ran his shoes under the same
black light and they also fluoresced. The detective checked
his shoes against the shoes of other individuals who did not
walk the crime scene; the soles of their shoes did not have
the same reaction. The State also adduced evidence that plant
employees were required to wear steel toed shoes and a cover
suit to protect their clothes while in the lab.
called three witnesses in his defense, including an alibi
Though not enumerated by Appellant, we find that the evidence
as summarized above was sufficient to enable a rational trier
of fact to conclude beyond a reasonable doubt that Appellant
was guilty of the crime for which he was convicted.
Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61
L.Ed.2d 560) (1979).
Appellant's pre-trial probable cause hearing, Appellant
called Jose Andres to testify for the defense as an alibi
witness. Andres testified, inter alia, that, on the night
before the murder, he saw Appellant and the victim together
laughing, talking, and kissing. Andres testified that he
remained with Appellant until midnight that evening. Andres
was then subjected to a thorough and sifting
cross-examination by the State. When Andres was unavailable
to be called as a witness at trial, the defense sought to
read the witness' prior sworn testimony to the jury. The
trial court denied this request. Appellant alleges this was
an abuse of discretion. We disagree.
our old Evidence Code,
Testimony given by an "inaccessible" witness under
oath in a former proceeding on substantially the same issue
and between the same parties [was] admissible under [former]
OCGA § 24-3-10. [Cit.] "The inaccessibility of a
witness under [former] OCGA § 24-3-10 depend[ed] upon a
showing by the party seeking to use the witness' former
testimony that he ha[d] used due diligence in trying to
locate and bring to court the absent witness." [Cit.]
(Citations omitted.) Thomas v. State, 290 Ga. 653');">290 Ga. 653,
657 (723 S.E.2d 885) (2012). Georgia courts have been
"fairly strict in requiring proof of sustained efforts
by parties to locate the witness in question before allowing
the admission of such testimony." (Citation omitted.)
Hill v. State, 291 Ga. 160, 163 (728 S.E.2d 225)
(2012). Indeed, "due diligence requires more than a few
phone calls, " and a "party must make a serious,
competent effort to find and bring the witness to
court." Id. "Whether a witness is
inaccessible within the meaning of [former] § 24-3-10 is
a decision left to the discretion of the trial court, which
will not be reversed absent manifest abuse." (Citation
omitted.) Thomas, 290 Ga. at 657.
the morning of trial, defense counsel informed the trial
court that Andres was "out of [the] country" and,
therefore, not subject to the trial court's subpoena
power. Counsel continued,
We don't even know where he is. He is somewhere around
Acapulco, Mexico; western Mexico. We have made every diligent
effort that we could make to try to get his whereabouts.
I've had members of [Appellant's] family trying to
find him, making inquiries, trying to locate him. We cannot
get him. We cannot find him.
witness who has permanently moved to a foreign country is
unavailable within the meaning of former OCGA § 24-3-10.
See also Mancusi v. Stubbs, 408 U.S. 204, 212-213
(92 S.Ct. 2308, 33 L.Ed.2d 293) (1972). Here, however,
Appellant did not provide the trial court with evidence that
Andres had moved to Mexico; nor did he say when efforts to
locate Andres had begun or what efforts had been made to
subpoena Andres at his last known residence in Georgia as
provided for in former OCGA 24-10-23. Instead, he merely
stated that Andres was "out of [the] country."
Without evidence that Andres had moved to another country,
thereby permanently placing himself beyond the subpoena power
of the trial court, Appellant did not establish the required
showing of due diligence to support a finding of
unavailability. Mancusi, 408 U.S. at 212-213. See
also Jones v. State, 250 Ga. 166 (2) (296 S.E.2d
However, even assuming Appellant had sufficiently shown
Andres' unavailability, the trial court's exclusion
of the prior testimony was harmless. Because Andres was only
with Appellant until midnight the night of Gibbs' death,
he could not have provided Appellant with an alibi for the
time of Gibbs' murder which, based upon the evidence,
occurred sometime between 4:00 and 5:00 a.m. on August 20.
Moreover, Andres' prior sworn testimony would have been
cumulative of Appellant's other alibi witness who
testified at trial that he was with Appellant from 9:15 p.m.
to 11:30 p.m. on August 19, and then from 1:30 a.m. until
approximately 4:30 a.m. on August 20. Finally, though Andres
could have testified that Appellant and the victim were
"laughing and kissing" before Appellant dropped her
off at work, the evidence of Appellant's prior abuse
toward the victim, as well as his numerous statements that he
wished her dead, were overwhelming. Therefore, the trial
court did not commit reversible error in denying
Appellant's request to read Andres' prior sworn
testimony to the jury.
morning of trial, the State moved the trial court to prohibit
Appellant from presenting evidence that another individual,
Otis Sanders, had actually committed the murder.
Specifically, the State asked the trial court to prevent
defense counsel from calling Linda Leriche who, ostensibly,
would have testified that Sanders provided a false alibi to
law enforcement for the time of the murder, that he
physically abused Leriche, and that Sanders drove Leriche to
the plant on some unknown date before Gibbs' death and
threatened to kill Leriche. The trial court granted the
State's motion in limine, which Appellant contends was
error. We disagree.
a defendant is entitled to introduce relevant and admissible
testimony tending to show that another person committed the
crime for which the defendant is tried. However, the
proffered evidence must raise a reasonable inference of the
defendant's innocence, and must directly connect the
other person with the corpus delicti, or show that ...