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Varner v. State

Supreme Court of Georgia

September 3, 2019



         Appellant Tamaron Varner was convicted of malice murder and possession of a firearm by a convicted felon in connection with the shooting death of Joshua Deberry. On appeal, he contends that the trial court erred by denying his motion to exclude a police body-camera recording that depicted Deberry just after the shooting and that recorded the statements made by Deberry and his fiancée to the police. Appellant also contends that his trial counsel provided ineffective assistance by failing (a) to challenge the admission of certain statements in the recording; (b) to specially demur to the firearm-related charges in his indictment; (c) to object to the prosecutor's argument that he was presenting mutually exclusive defenses; and (d) to challenge the admission of evidence of a shotgun that had no connection to the charged crimes. Having reviewed the record and the briefs, we see no error, so we affirm.[1]

         1. Viewed in the light most favorable to the jury's verdicts, the evidence presented at trial showed the following. Deberry worked as a handyman in Savannah, where he lived with his fiancée Audria Smith and her sons. He occasionally hired Appellant, who lived a few blocks away, to assist on local projects. In mid-December 2016, Deberry hired Appellant to help build part of a shed for a client. Although Deberry typically paid Appellant as Appellant worked, he could not pay Appellant for the shed work until the client paid in full when the shed was completed. A few days after the shed was supposed to have been completed, Appellant started calling and texting Smith's cellphone, which she shared with Deberry, asking to be paid. Deberry and Smith responded to some of the messages, explaining that the shed was not yet complete due to weather delays, but Appellant's messages persisted and became increasingly threatening.

         Around 9:30 a.m. on December 21, Deberry and Smith left their house to go to the grocery store. As they got into their car, Appellant ran up to them asking for his payment. Deberry again said the shed was not yet completed and quickly drove away, leaving Appellant standing in front of the house. Smith told Deberry to turn around and go back because she did not want to leave her 15-year-old son alone at home while Appellant was still outside. Deberry circled the block, and the couple went back inside the house to get the son. When they all came out, Smith and her son got into the car, and Deberry, who was not armed, stopped in the street in front of the car to argue with Appellant. As the men argued, Smith saw Appellant pull a gun from his jacket pocket and shoot Deberry three times before fleeing in the direction of his own house.

         After hearing the gunshots, neighbors called 911. One of the first police officers to respond wore a body camera, which began recording audio and video on the way to the scene. Officers found Smith and a neighbor crouched on the pavement next to Deberry, who was bleeding profusely from his face and abdomen but was still alive. Smith told the officers that she knew where Appellant lived and described his house, the clothes he was wearing, and the argument with Deberry about being paid. Both Smith and Deberry told the officers that Appellant had used a .38-caliber revolver. After Deberry was taken to the hospital, Smith and her son were interviewed at the police station, and Smith then rode with an officer to point out Appellant's house. Deberry died a few hours later.

         Appellant was arrested at his house that afternoon, and police officers found an empty .38-caliber revolver in a leather holster hidden under his mattress next to five unused .38-caliber rounds. Officers also found a shotgun hidden under a chaise lounge. During a recorded interview, Appellant admitted that he went to Deberry's house and argued with Deberry about not being paid, but claimed that he was walking away when he heard the gunshots, which scared him, so he ran home.

         At trial, a medical examiner testified that Deberry had been shot three times - once through his right arm, once in his right cheek, and once in his lower chest - and died of internal bleeding from the wounds to his cheek and chest. A firearms expert testified that two bullets recovered from Deberry's body matched the .38-caliber revolver found under Appellant's mattress. The State played the recording of Appellant's interview, but when Appellant testified, he told a very different story. He claimed that the gun belonged to Deberry and that Deberry pulled the gun on him during the argument, prompting Appellant to fight over the gun and causing it to fire accidentally. Appellant said that after the gun went off, he panicked, picked up the gun and the holster, and ran to his house, where he emptied the gun and flushed the three spent shell casings and two unspent bullets down the toilet before hiding the gun under his mattress. Appellant also claimed that the shotgun belonged to his uncle and that he did not own any guns because he knew that he was not allowed to possess any guns as a convicted felon. Appellant had no explanation for the five unused rounds found next to the revolver.

         Appellant does not dispute the legal sufficiency of the evidence supporting his convictions. Nevertheless, as is this Court's practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to reject Appellant's claims of self-defense and accident and to find him guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). See also Bennett v. State, 304 Ga. 795, 797 (822 S.E.2d 254) (2018) (holding that the jury was free "to reject [the defendant's] contrived and changing stories" supporting his claims of self-defense and accident); Vega v. State, 285 Ga. 32, 33 (673 S.E.2d 223) (2009) ("'It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.'" (citation omitted)).

         2. At trial, Appellant filed a motion in limine to exclude the video and audio recording made by the body camera worn by one of the first police officers who responded to the 911 call after the shooting. Appellant's only argument was that the video portion of the recording was substantially more prejudicial than probative. He made no argument about the audio portion, which included statements from Smith in which she described Appellant, the clothes he was wearing, where he lived, and the payment dispute, as well as mumbled statements from Deberry regarding the type of gun that Appellant used, which Smith repeated louder and clearer so the officers could understand what he had said.[2] The trial court denied Appellant's motion, and the recording was played three times for the jury: once during the State's opening argument, once during the testimony of the officer who wore the camera, and once during the State's final closing argument.[3]

         (a) In this Court, Appellant reiterates the argument he made at trial that the recording should have been excluded under OCGA § 24-4-403 as substantially more prejudicial than probative, because it shows Deberry's blood pooling on the ground and flowing from his head and face as he waited for an ambulance. Although the segments of video that show Deberry are certainly disturbing to see - as are many images of fatal shootings - they and the recording as a whole were relevant and probative to show the crime scene, Deberry's injuries, and his and Smith's condition and demeanor as they spoke to each other and to the responding officers, as well as to corroborate Smith's and the officer's testimony. See Plez v. State, 300 Ga. 505, 508 (796 S.E.2d 704) (2017) (explaining that "photographic evidence that fairly and accurately depicts a body or crime scene and is offered for a relevant purpose is not generally inadmissible under [OCGA § 24-4-403] merely because it is gruesome"). See also Davis v. State, ___ Ga.___, ___ 829 S.E.2d 321, 328) (2019) (holding that "gruesome" video and photographic evidence depicting the crime scene and the victim's body were "relevant to the victim's identity and manner of death, as well as to corroborate [witnesses'] testimony"). Accordingly, the trial court did not abuse its discretion by admitting the video portion of the recording. See Moss v. State, 289 Ga. 613, 618 (783 S.E.2d 652) (2016) ("[T]he trial court had considerable discretion in determining whether the potential for prejudice substantially outweighed any probative value [of pre-incision autopsy photos].").

         (b) Appellant also argues here that the trial court should have excluded the audio portion of the body-camera recording because it contained statements that were inadmissible under both the Confrontation Clause of the Sixth Amendment to the United States Constitution and the rule against hearsay. Because Appellant did not object to the admission of the recording on these grounds at trial, we review these claims only for plain error. See OCGA § 24-1-103 (d). See also Kemp v. State, 303 Ga. 385, 397-398 (810 S.E.2d 515) (2018) (applying plain error standard of review to the appellant's unpreserved Confrontation Clause claim); Lupoe v. State, 300 Ga. 233, 243 (794 S.E.2d 67) (2016) (applying plain error review to the appellant's unpreserved hearsay claim).

         (i) A Confrontation Clause violation occurs when an out-of-court statement admitted into evidence is "testimonial" in nature and the declarant is unavailable at trial and was not previously subject to cross-examination. See Crawford v. Washington, 541 U.S. 36, 68 (124 S.Ct. 1354, 158 L.Ed.2d 117) (2004). As Appellant concedes, the admission of Smith's recorded statements did not violate the Confrontation Clause because she testified at trial and was subject to cross-examination. See id. at 59 n.9 ("[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of [her] prior testimonial statements.").

         Appellant maintains, however, that the admission of Deberry's statements violated the Constitution. It is true that Deberry was unavailable at trial - he was dead - and he had not been subject to cross-examination. But his statements were not testimonial.

"Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to ...

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