MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.
McFadden, Presiding Judge.
jury trial, Jimmie Jackson was convicted of robbery by
intimidation. He appeals, arguing that the trial court erred
in allowing hearsay testimony in violation of the
Confrontation Clause of the Sixth Amendment. But even if the
court erred, the error was harmless in light of the
overwhelming evidence of guilt. So we affirm.
Facts and procedural posture.
was indicted for armed robbery and aggravated assault, with
both counts of the indictment alleging that he had used a box
cutter to commit the crimes at a Waffle House restaurant.
Jackson pled not guilty to the charges. The case was tried
before a jury.
trial, the state presented two Waffle House employees, who
testified that on July 18, 2014, Jackson entered the
restaurant, held something in his hand that the employees
believed was a weapon, ordered that the cash register be
opened, grabbed money out of the register, and fled from the
restaurant. One of the employees hid in a bathroom and called
911 while the incident was in progress. Police officers
responded to the call, saw Jackson running from the scene,
and apprehended him a short distance from the restaurant. The
officers searched Jackson and found, among other things, that
he had a box cutter and approximately $269 in cash. The
Waffle House employees were brought to the scene of the
arrest and identified Jackson as the robber.
was taken to the police station, where he waived his
Miranda rights and gave a statement to a
detective, admitting that he had robbed the Waffle House.
Jackson stated that he had gone into the restaurant, told the
employees to open the register, took money from the register,
ran from the restaurant, was caught by police, and had a box
cutter in his pocket. The state played Jackson's recorded
admission and security video of the incident for the jury.
Astin, a Waffle House employee who was named in the
indictment as the victim of the alleged aggravated assault
and one of the victims of the alleged armed robbery, did not
testify at trial. But over Jackson's hearsay and
confrontation clause objections, the trial court allowed a
police officer to testify about statements Astin had made to
him at the restaurant shortly after the incident. The officer
testified that Astin had told him, among other things, that a
man came into the restaurant and said that he was going to
rob them, that he was holding a red object, and that she did
not know if it was a gun or a knife.
jury found Jackson not guilty of the aggravated assault
charge, but was unable to reach a unanimous verdict on the
armed robbery charge, with three jurors voting for guilt on
the armed robbery charge and nine voting for guilt on the
lesser included offense of robbery by intimidation. Jackson
and the state agreed to waive a unanimous verdict and accept
a non-unanimous verdict of guilty on robbery by intimidation,
and the trial court sanctioned that agreement. The court imposed
a recidivist sentence of twenty years, ordering Jackson to
serve seven years in confinement and the remainder on
probation. After the trial court denied Jackson's motion
for a new trial, this appeal followed.
Hearsay and confrontation clause.
contends that the trial court erred in overruling his hearsay
and confrontation clause objections to the officer's
testimony about the out-of-court statements of Waffle House
employee Astin. But even if we assume, without deciding, that
the court erred in admitting the testimony, any error was
hearsay evidence is erroneously admitted in violation of the
confrontation clause, such "[a]n error of constitutional
magnitude can be harmless when the evidence at issue is
cumulative of other properly admitted evidence or when the
evidence against the defendant is overwhelming."
Yarber v. State, 337 Ga.App. 40, 44-45 (785 S.E.2d
677) (2016) (citations and punctuation omitted). Accord
Miller v. State, 289 Ga. 854, 857 (2) (717 S.E.2d
179) (2011). Here, the evidence of Jackson's guilt -
including eyewitness identifications of him, video of the
robbery, and his recorded statement admitting the robbery -
was overwhelming. Because the evidence of guilt "was
overwhelming, any error in admitting the [alleged hearsay]
was harmless beyond a reasonable doubt."
Yarber, supra at 46 (citations omitted).
See also Dawson v. State, 300 Ga. 332, 335
(3) (794 S.E.2d 132) (2016) (assuming admission of hearsay
violated confrontation clause, the error was harmless beyond
a reasonable doubt in light of the overwhelming evidence of
guilt); Hatley v. State, 290 Ga. 480, 485 (II) (722
S.E.2d 67) (2012) (any error in admitting hearsay statements
in violation of confrontation clause was harmless beyond a
reasonable doubt where there was overwhelming evidence of
guilt); Warren v. State, 283 Ga. 42, 43 (2) (656
S.E.2d 803) (2008) (accord). Since any assumed error in this
case was harmless beyond a reasonable doubt, there is no
basis for reversal. See Welch v. State, 318 Ga.App.
202, 206 (1) (733 S.E.2d 482) (2012).