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Barber v. State

Court of Appeals of Georgia, First Division

May 8, 2019

BARBER
v.
THE STATE.

          BARNES, P. J., MERCIER and BROWN, JJ.

          BARNES, PRESIDING JUDGE.

         Jarvis Barber was convicted of aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon, and the trial court sentenced him as a recidivist under OCGA § 17-10-7 (a) and (c). The trial court thereafter granted the State's motion to perfect the record with certified copies of Barber's prior felony convictions and denied Barber's amended motion for new trial. On appeal, Barber contends that the trial court erred in granting the State's motion to perfect the record, in sentencing him as a recidivist, and in amending his written sentence without conducting a hearing where he was allowed to be present. For the reasons set forth more fully below, we affirm.

         Following a criminal conviction, we review the evidence in the light most favorable to the verdict. Anthony v. State, 317 Ga.App. 807, 807 (732 S.E.2d 845) (2012). So viewed, the evidence showed that on the afternoon of May 8, 2010, the victim was sitting on a porch with a friend in Fulton County when two vehicles stopped in the middle of the street. One of the car occupants who had a "beef" with the victim jumped out and began to argue with him. The man who had jumped out of the car then struck the victim, and the two men began to fight. The fight briefly stopped, but started again. When the fight restarted, another man, who had a gun, jumped out of one of the cars, fired three shots in the air, struck the victim in the head and kneed him, and then fired about three shots at the victim. The shooter and the other man who had fought the victim got back into the cars and drove away. The victim died from a gunshot wound in his torso.

         Several witnesses identified Barber as the shooter in photographic lineups and in their testimony at trial. In a video-recorded interview with a detective played at trial, Barber admitted that he shot the victim but claimed that another car occupant also had fired a gun. According to a Georgia Bureau of Investigation firearms examiner, shell casings and bullet projectiles collected from the crime scene were from two different firearms.

         Following the shooting, Barber was arrested and indicted for murder, felony murder (two counts), aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon.[1] The State filed a notice of its intent to seek recidivist punishment under OCGA § 17-10-7 (a) and (c) based on Barber's prior felony convictions for financial transaction credit card fraud, theft by receiving, possession of cocaine (Fulton County), and possession of cocaine (DeKalb County).[2]

         At trial, in addition to the evidence discussed above, when the State presented a certified copy of Barber's prior felony conviction for cocaine possession (Fulton County), Barber stipulated that he was a convicted felon for purposes of the pertinent firearm possession count. Barber elected not to testify and did not call any witnesses. After the close of evidence, the jury found Barber guilty of aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. On the remaining counts of the indictment, the jury deadlocked, leading the trial court to declare a mistrial on those counts.[3]

         Following the guilt-innocence phase of the trial, the trial court conducted a sentencing hearing in which the prosecutor noted that Barber had a criminal history and that the State had filed a notice that it would be seeking recidivist punishment. The prosecutor then presented certified copies of Barber's prior felony convictions for financial transaction credit card fraud, theft by receiving, and cocaine possession (DeKalb County), and the prosecutor further noted that Barber had stipulated at trial that he was a convicted felon based on his felony conviction for cocaine possession (Fulton County). After noting that Barber was a four-time offender and pointing to "the gravity of the aggravated assault" that had occurred, the trial court announced a maximum sentence of twenty years in prison for aggravated assault, five years in prison for possession of a firearm during the commission of a felony, and five years in prison for possession of a firearm by a convicted felon, with the sentences to run consecutively.[4] While the final disposition order entered the following day omitted any express reference to recidivist punishment, the trial court entered a corrected final disposition order eight days later denoting that Barber was sentenced as a recidivist under OCGA § 17-10-7 (a) and (c).

         Barber filed a timely motion for new trial, as twice amended, in which he also challenged the sentence imposed by the trial court. More specifically, Barber contended that the trial court erred in sentencing him as a recidivist because certified copies of his prior felony convictions were never admitted into evidence either at trial or at the sentencing hearing. Barber also asserted that the trial court erred by modifying his written sentence to include recidivist punishment without first conducting a hearing in his presence. The State opposed Barber's motion and filed a motion to perfect the record under OCGA § 5-6-41 (f) with certified copies of Barber's prior felony convictions that the State asserted had been admitted into evidence. The State also argued that the trial court had merely corrected the written sentence to conform it to the sentence announced at the sentencing hearing, so the court did not have to conduct a new hearing or provide notice to Barber before making the correction. The trial court, after conducting a hearing on the parties' motions, denied Barber's motion and granted the State's motion to perfect the record.

         1.The evidence discussed above - including the eyewitnesses' identifications of Barber as the shooter in photographic lineups and in their testimony at trial, Barber's admission to shooting the victim, and Barber's stipulation that he was a convicted felon - was sufficient to enable a rational jury to find Barber guilty beyond a reasonable doubt of aggravated assault and the firearm possession offenses. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2.Barber contends that the trial court erred in granting the State's motion to perfect the record pursuant to OCGA § 5-6-41 (f) with certified copies of his prior felony convictions for financial transaction credit card fraud, theft by receiving, and possession of cocaine (DeKalb County). According to Barber, the trial court never admitted those three prior convictions into evidence at the sentencing hearing, and thus it was improper for the court to allow the State to supplement the record with substitute certified copies of those convictions. We disagree.

OCGA § 5-6-41 (f) establishes a procedure whereby a party who contends that the transcript or record does not truly or fully disclose what transpired at trial may have the record completed either by stipulation of the parties as to what occurred or the independent recollection of the trial judge. If anything material to either party is omitted from the record, the omission may be corrected and, if necessary, a supplemental record filed. Evidence never actually admitted at trial cannot properly become part of the record on appeal pursuant to OCGA § 5-6-41 (f). That section is solely for the purpose of making the record speak the truth, not for adding evidence to the record or supplying fatal deficiencies after the fact.

(Citations and punctuation omitted.) Carr v. State, 267 Ga. 547, 550 (2) (480 S.E.2d 583) (1997). Guided by these principles, we turn ...


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