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Gude v. State

Supreme Court of Georgia

August 5, 2019

GUDE
v.
THE STATE.

          BETHEL, JUSTICE.

         At a February 2013 trial, a jury found Frederick Lee Gude guilty of malice murder, felony murder predicated on aggravated assault, aggravated assault, and theft by taking in connection with the stabbing death of Jacquelyn Nash.[1] He appeals, contending that the trial court erred in admitting a tape-recorded voicemail message into evidence and that he received ineffective assistance of counsel. For the reasons stated below, we affirm.

         1. Viewed in a light most favorable to the jury's verdict, the evidence presented at trial showed that, on January 21, 2004, Jacquelyn Nash was found dead in the home of her elderly aunt, Nannell Collins, with whom she lived. An autopsy revealed that Nash had been stabbed approximately 40 times. Nash's body was discovered by her son, who spoke with police and named Gude as a possible person of interest.[2] Nash's son also informed police that Nash's vehicle, a black 1996 Ford Explorer, was missing. While investigating the crime scene, police spoke to one of Nash's neighbors, [3] who told police that, on the morning of January 20, he saw Gude leaving Nash's home driving much faster than he should have been driving. That same day, Lila Hertz, Nash's employer, called Nash's home when Nash failed to show up for work. A man answered the phone and informed Hertz that Nash had a doctor's appointment and would be late for work.

         In the evening on January 21, detectives were dispatched to the home of Gude's sister and were instructed to identify a vehicle parked at that location, a black 1996 Ford Explorer, and to surveil the residence. About 20 minutes after detectives arrived at the location, Gude exited the home and got into the Explorer. Gude left the residence in the Explorer, and the detectives followed him in their unmarked vehicle. After some time and without police initiating a traffic stop, Gude suddenly stopped the vehicle, got out, and put his hands in the air. He was taken into custody, and, upon searching him, police recovered keys to Nash's home.

         At trial, the State presented the testimony of Tayrn Gude ("Tayrn"), Gude's daughter who lived in Maryland. Tayrn testified that, on January 20, she returned home from work to find a voicemail message from Gude on her answering machine. According to Tayrn, in the voicemail Gude confessed to killing Nash because he had given Nash $500[4] for safekeeping but when he went to her home to retrieve the money he found that she no longer had the money. After listening to the voicemail, Tayrn made numerous attempts to contact Gude. She finally reached him the next day, January 21, at the home of his sister.[5] When Tayrn asked Gude what happened to Nash, he gave several conflicting stories, insisting that he had taken Nash to a hospital, although he could not recall which hospital, and alternatively claiming that he had called an ambulance to pick up Nash from her home. Gude informed Tayrn that he drank radiator fluid some time that day because he did not want to go back to prison, and Gude's sister told Tayrn that Gude was in the bathroom vomiting as a result of drinking the radiator fluid. Gude also told Tayrn he was planning to "try to go towards the border," which he explained meant Florida. He asked Tayrn to send him money to aid him during his flight. Tayrn reported her communications with Gude to the police that evening.

         The following stipulations agreed upon by Gude and the State were entered into the record at trial:

On January 21, 2004, the following pieces of evidence were collected from [Nash's residence] and sent to the Georgia Bureau of Investigations for testing: One ice pick, 13 beer cans, one cigarette, and four cigarette butts. Additionally, Frederick Gude's DNA was provided to the [GBI]. The results of the testing on the ice pick did not reveal the presence of blood. The results of testing of the beer cans failed to reveal the presence [of] amylase, an enzymatic constituent of saliva. The results of the testing on the cigarette butts revealed the presence of amylase . . . on one cigarette butt label[ed] "in paper towel." Further testing revealed that the DNA found in the amylase on the cigarette butt is that of Frederick Gude.

         Testimony at trial established that neither Nash nor Collins drank alcohol or smoked.

         Although Gude does not challenge the legal sufficiency of the evidence supporting his convictions, adhering to this Court's practice in murder cases, we have reviewed the record and conclude that the evidence stated above was sufficient to authorize a rational jury to find Gude guilty beyond a reasonable doubt on each of the counts of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. In his first enumeration of error, Gude argues that the trial court erred by admitting the tape-recorded voicemail message into evidence. In Gude's view, the admission of the message violated the best evidence rule. We review the trial court's decision for an abuse of discretion. See Evans v. State, 288 Ga. 571, 573 (3) (707 S.E.2d 353) (2011).

         Before trial, Gude moved to exclude the tape-recorded voicemail message he left on Tayrn's answering machine, arguing that the recording was unreliable "as evidenced by the fact that two court reporters and one police detective [had] listened to the tape and [had] heard three substantially different versions of what was said." Before admitting the copies of the voicemail message, the trial court heard testimony from Tayrn and Detective Stephen Balkcom, the lead investigator on the case, regarding the availability of the original message on Tayrn's answering machine and the process by which Detective Balkcom obtained copies of that message.

         Detective Balkcom testified that, on January 23, he traveled to Tayrn's home in Maryland. There, he listened to the original voicemail message left on Tayrn's answering machine and a copy of the message that Tayrn had made on a cassette tape. Using a microcassette recorder, he made a second copy from the cassette copy Tayrn made. The copy made by Detective Balkcom was admitted into evidence at trial. Detective Balkcom testified that the answering machine was one of the first digital machines on the market and that the machine did not have a tape on which to record voicemail messages. Further, Balkcom explained that he did not take possession of the machine because he did not want to unplug it for fear that the machine would erase the voicemail message.

         Tayrn testified that she made her own recording of the voicemail message on a cassette tape and that, although the cassette was "presumably" at her home, it could not be located. When questioned as to the availability of the original answering machine, she testified that the machine had been discarded because it was no longer functional and "just died." Detective Balkcom and Tayrn both testified that the copy of the voicemail message admitted at trial sounded the same and contained the same substance as the original voicemail message.

         The trial court denied Gude's motion and admitted the voicemail message over his objection. Before the voicemail message was ...


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