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Ross v. State

Court of Appeals of Georgia, Fifth Division

February 8, 2018


          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          Branch, Judge.

         A jury found Brandon Ross guilty of burglary, six counts of aggravated assault, and seven counts of possession of a firearm during the commission of a crime. In his sole enumeration of error, Ross argues that his right to a fair trial was violated when the court allowed the jury to replay his taped statement in the jury room during deliberations. We agree and conclude that the error was not harmless.

         The facts, as stated in our earlier unpublished opinion, [1] show the following:

[O]n June 29, 2010, two or three masked men with handguns kicked in the front door and entered the victims' apartment and began shooting, striking one of the victims. A shoe print from a Converse tennis shoe found in sandy ground near the apartment matched shoes belonging to Ross. In addition, a gold Oldsmobile Alero belonging to Ross's mother and loaned to Ross on the night of June 29, 2010, was found in a parking lot behind the apartment complex. A black ski cap and cell phone were found in the mother's car, and the cell phone had text messages referring to a robbery. Ross had called a friend that evening to report that his mother's car had broken down at an apartment complex and he needed a jump. However, none of the victims were able to identify Ross as one of the intruders, and the record shows that Ross is significantly taller than the height described by one of the victims. In addition, although the perpetrators were described as dark silhouettes, Ross was seen shortly after the incident wearing a white tank top and basketball shorts.
A criminal investigator with the sheriff's office interviewed Ross regarding the home invasion. After initially denying involvement, Ross admitted knowing about a plan to rob one of the victims and told investigators he loaned his mother's gold Oldsmobile to individuals who were going to drive to the home invasion. His statement was video recorded, and a [one-hour-long] portion of the recording was played for the jury during trial.
During deliberations, the jury requested "a DVD player or recorder or transcript of the interview that was taped with the defendant." Ross objected to the replay. The trial court ruled that the jury could re-watch the taped statement. The jury then asked the court if it could watch the taped statement in the jury room so it could deliberate during the viewing. The trial court ruled that the bailiff could operate the video recording machine in the jury room, but could have no communications with the jury during the process. The bailiff's job was simply to start and stop the recording; he was not to rewind and replay the recording. Ross's attorney informed the court that he did not have any objection to the procedure, but reiterated his general objection to replaying the recording. After the bailiff played the video in the jury room, the trial judge and prosecutor questioned him regarding his communication with the jury. Ross's counsel stated he was satisfied that the bailiff did not have any improper communication with the jury.

         The trial court denied Ross's motion for new trial, including on the issue of whether the court violated the continuing-witness rule when the jury was allowed to re-hear Ross's statement during its deliberations. On appeal, Ross argues that his videotaped statement should not have been replayed for the jury in the jury room. According to Ross, replaying his taped statement constituted reversible error, violated the continuing witness rule, and placed undue emphasis on the contents of the statement.

         1. The State contends that Ross waived any objection to the replaying because his attorney agreed to the procedure employed by the trial court. But in the earlier appeal, this Court considered this question and held that Ross did not waive his argument regarding the appropriateness of replaying his taped statement in the jury room. Our decision is law of the case. See OCGA § 9-11-60 (h) ("any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be").

         2. It is well-settled in Georgia that "it is error to allow a jury to take written or recorded statements into the jury room during deliberations unless those statements are consistent with the defendant's theory of the case." Fields v. State, 266 Ga. 241, 243 (2) (466 S.E.2d 202) (1996). The "continuing witness" rule is meant to prevent a jury from placing undue emphasis on written testimony that was read to the jury:

In Georgia the "continuing witness" objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.

Tibbs v. Tibbs, 257 Ga. 370, 370 (359 S.E.2d 674) (1987) (citation omitted); see also Hinton v. State, 233 Ga.App. 213 (1) (504 S.E.2d 49) (1998). The continuing witness rule has been applied to recordings as well as writings, including recordings of a defendant's statement to the authorities. See Fields, 266 Ga. at 243 (2).

         In Fields, the defendant made a statement to the police admitting taking part in a burglary and shooting the victim. Fields, 266 Ga. at 242. On the stand, however, although the defendant again admitted the burglary, he denied shooting the victim. Id. During deliberations, the trial court allowed the recorded statement and a tape player to go out with the jury. Id. at 243 (2). On appeal, the Supreme Court held that the trial court erred because the recording was inconsistent with the defendant's theory of the case but that the error was harmless for other reasons. Id. In a similar case, the defendant gave a taped statement to a deputy at the time of his arrest in which he admitted that he meant to shoot his brother. Owens v. State, 248 Ga. 629, 630 (284 S.E.2d 408) (1981). At trial, however, the defendant testified that the shooting was an accident. Id. at 631. On appeal, the Supreme Court held that although the trial court was authorized to permit the jury to rehear the tape recording in open court, [2] the trial court erred in allowing the taped statement to go to the jury room over objection. Id. Even so, the Supreme Court found the error harmless. Id. See also Summage v. State, 248 Ga.App. 559, 561 (1) (546 S.E.2d 910) (2001) (trial court erred by allowing jury to replay victim's videotaped interview in the jury room during its deliberations over objection of defense counsel and error was not harmless); Nixon v. State, 234 Ga.App. 797, 799 (1) (507 S.E.2d 833) (1998) (trial court erred in allowing a tape player and the recorded statements and transcripts of two child victims and to go out with the jury but error was harmless).

         Here, Ross did not testify, but his one-hour statement was played in full to the jury during the trial. The court then allowed the jury to replay the statement during deliberations and allowed the jury to stop (but not rewind) the video from time to time to discuss the significance of various aspects of the interrogation. Thus, under Fields and Owens, the court erred unless the statement was consistent with Ross's theory of defense. The Supreme Court has stated that "[w]hether the written testimony is consistent with the theory of the defense depends upon whether it is advantageous to the ...

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