Benham, Justice.
Appellants Joshua Marchman and Joshua Arnold were involved, along with another perpetrator, in a crime spree on the evening of July 9 into the morning hours of July 10, 2009, that resulted in the shooting deaths of Nicholas Garner and Lateisha Weatherspoon. Appellants were tried jointly before a jury and both were found guilty of the crimes with which they were charged, including two counts of malice murder.
On July 9, 2010, Marchman, Arnold and Walker told a woman who testified at trial that they were looking to purchase marijuana and also wanted to "hit a lick," meaning to rob someone. As a result of calls that were made, Hunter, who was to deliver the marijuana, arrived by automobile with his friends Lateisha Weatherspoon and Shanice Green at the place where the three conspirators were waiting to make the purchase. Armed with handguns, Marchman and Walker entered the car Green was driving, a white Impala. Walker put a gun to Hunter's head, demanded the occupants' cell phones, and ordered Green to drive. Upon having Green pull the car over, Marchman and Walker discovered Hunter was armed with an extended-magazine Glock pistol. They disarmed Hunter, began pistol-whipping him, and forced him into the Impala's trunk. They then met up with Arnold, who commenced following Green's Impala in a blue Marquis. At some point, the two cars stopped at a convenience store/service station where the perpetrators retrieved Hunter out of the Impala's trunk and forced him into the Marquis' trunk. Their actions were captured on the business' surveillance videotapes. The perpetrators, still holding Green, Weatherspoon, and Hunter against their will, continued to drive around Cobb County in the two cars.
Eventually, the three perpetrators, now covering their faces, delivered Hunter to the home where Aaron Garner lived with his brother Nicholas Garner, and used Hunter as a decoy to trick Aaron into letting them in the door. Upon entering, Marchman and Walker commenced beating Aaron and continued beating Hunter. Shortly thereafter, Nicholas Garner arrived home in a car driven by Brandon Cox, and Nicholas went inside to retrieve gas money he had agreed to pay Cox. Upon entering his home, Nicholas was held at gun point. When Marchman and Walker realized someone was waiting outside in a car, they forced Nicholas to persuade Cox to come inside. Marchman and Walker then held all four men at gunpoint, tortured them with a hot spoon, and ransacked the home looking for money and marijuana. Meanwhile, Arnold was holding Weatherspoon and Green captive in the Marquis while he continued to drive around, during which time he communicated with Marchman and Walker via the stolen cell phones. Green was pregnant, and in an effort to escape she faked labor pains and urinated on herself to make it appear her water had broken. Ultimately, Arnold released her at a hospital but threatened to kill Weatherspoon and Hunter if she informed anyone about the crimes that were transpiring. At the urging of friends, however, she reported her car as being stolen. Once her torched car was discovered, Green told investigators in detail what had transpired.
In the continuing crime spree, at around 3:00 a.m., the three perpetrators arrived in two separate vehicles at the home of their friend Marcus Woodward, who saw a female sitting in an Impala parked in the driveway. Arnold and Walker drove both cars away from Woodward's home while Marchman stayed inside. They drove to a remote location, shot Weatherspoon in the head, and doused the Impala in which she was killed with gasoline and lighted it on fire. Several destroyed cell phones were found in the car when it was discovered along with Weatherspoon's body. Woodward testified that when Walker and Arnold returned to his home in the Marquis, he noted a distinctive odor of gasoline. After the burned-out Impala was discovered, and based upon information gathered from witnesses, law enforcement began searching for a blue Marquis, and they located a car matching that description driving down the road near the burned-out Impala's location. Walker was in the front passenger seat of the car and, either at gunpoint or by intimidation, he was forcing Woodward to drive. When a patrolman attempted to make a traffic stop, Walker fired at him, striking the patrol vehicle several times. A car chase ensued, and when the Marquis approached a road block, Walker took his own life with a gun that proved to be the one taken from Hunter. Shell casings from the gun matched casings found at the site of the Garner home invasion.
DNA testing confirmed Hunter had been in the trunk of the Marquis. The medical examiner's testimony established that the cause of Nicholas Garner's death was multiple gunshot wounds, and that the cause of Lateisha Weatherspoon's death was a gunshot wound to the head. Using cell phone records and other evidence, law enforcement was able to confirm that Marchman and Arnold were involved in the criminal enterprise. Before he was arrested, Marchman fled to Alabama, where he made incriminating statements about these crimes to a witness who testified at trial. Arnold's fingerprints were found in multiple places on the Marquis, including the front passenger door, the trunk and the fuel door. Marchman and Arnold were identified at trial by the victims as well as other witnesses who observed the drug transaction that started the events in question.
1. We reject Marchman's assertion that the evidence against him was entirely circumstantial and did not support his convictions because the evidence failed to exclude every other reasonable hypothesis save that of guilt. Hunter and Green identified Marchman as one of their kidnappers. Witness Kayla Cochran identified Marchman and Arnold as two of three men in a blue Marquis who stopped to talk to her about finding marijuana and "hitting a lick," and who entered Hunter's car when he arrived with the marijuana for them to purchase. Cox identified Marchman as one of the men who attacked and robbed him at the Garner residence. Woodward identified Marchman as one of the three men who arrived at his house a short time after the Garner home invasion in two separate cars, an Impala and a Marquis, and Woodward testified the men were armed with guns and possessed cash, marijuana, and a ski mask. Woodward further testified that Marchman remained at his house while the other two men drove away in both cars, with a female passenger in the Impala. When the other two men returned in the Marquis and without the Impala or its female passenger, they smelled of gasoline. Phone records showed that a cell phone associated with Marchman was used to call Hunter's phone during the crime spree after Hunter's phone was taken from him, and that Arnold was using Hunter's phone while he was holding the women hostage while Marchman and Walker were carrying out the crimes committed at the Garner residence. Additionally, Marchman made incriminating statements to a friend in Alabama where he fled after these crimes were committed.
2. Marchman asserts he is entitled to a new trial because the trial court erred in admitting cell phone records in the case. At the motion to suppress hearing, the investigating officer testified that the authorities obtained the cell phone numbers of the victims whose phones were stolen on the night in question, along with the phone number witness Cochran told authorities and testified that Marchman provided to her as his contact number on the night he came asking about a source for purchasing marijuana. Cochran also testified at trial to this effect. The officer further testified that the identity of the service provider for the number associated with Marchman was obtained from a database of such information that is available to law enforcement. Investigators then made what is known as an "exigency request," followed by a grand jury subpoena, for call detail information for that number during the relevant period of time.
Citing Riley v. California,
3. During its deliberations, the jury delivered to the trial court a written request for clarification on the law of parties to a crime. In response, the court re-read its original charge on parties to a crime, stating in pertinent part:
Marchman's counsel objected on the ground that the court read not only the charge relating to parties to a crime but also the charge relating to failure to prosecute principals, which Marchman asserted the jury did not request, and that objection was overruled. On appeal, Marchman again argues the trial court erroneously and gratuitously added a charge that was not requested.
Since the recharge was a correct statement of the law, was exactly the same as that given in its original instructions, and was not confusing or inappropriate, Marchman has failed to demonstrate error. See Mister v. State, 286 Ga. 303, 308, 687 S.E.2d 471 (2009). Further, in response to the trial court's inquiry, the jury foreman stated that the recharge answered the jury's question. Consequently, we reject Marchman's assertion that the recharge was confusing and inappropriate.
4. Marchman asserts that the in-court identification of him by witness Shanice Green was constitutionally unreliable because it was based upon a tainted out-of-court identification she made the day after she was kidnapped from what he claims was an impermissibly suggestive photographic lineup. Marchman filed a motion to suppress evidence and testimony concerning Green's identification of him from this photographic lineup. After conducting a thorough evidentiary hearing on this and other pending pre-trial motions, the trial court denied it. We find no error in the trial court's denial of Marchman's pre-trial motion to suppress or its denial of his motion for new trial with respect to admission of Green's identification of him at trial.
In a statement given to police on the day after the crimes were committed, Green described both the individuals involved in her kidnapping as black males who were wearing black shirts. Marchman argues that the most glaringly suggestive aspect of the photographic lineup shown to Green is that Marchman is the only individual in the six-photo array wearing a black shirt, while all five other men were wearing white. Marchman also points out that he was the only individual in the array who was looking down in his photo, while the other men were looking straight ahead, presumably thereby drawing attention to Marchman, and that one of the other photos should have been excluded from the array because the individual appeared to have a beaten or swollen face, whereas the witness never mentioned in her interview with authorities that either of the perpetrators had any facial swelling. We reject Marchman's assertion that the photographic identification procedure was impermissibly suggestive because he failed to show the procedure used was so suggestive as to be the equivalent of telling the witness, "This is our suspect." See Marshall v. State, 285 Ga. 351, 352, 676 S.E.2d 201 (2009).
5. While Marchman and Arnold were holding Hunter hostage in the trunk of the Marquis, they stopped and went inside a service station convenience store. Still photos printed from surveillance videotape recordings from inside and outside the store were admitted into evidence. Both the owner of the store and the clerk on duty at the time the perpetrators stopped at the store testified and authenticated the admitted photos. In response to the prosecutor's questioning, the owner testified he reviewed the video recordings from which the photos were printed and recognized his employee standing behind the counter. Marchman asserts the trial court erred in overruling his objection to this portion of the owner's testimony, and that he is entitled to a new trial.
Relying upon Grimes v. State,
6. Marchman asserts he is entitled to a new trial because the in-court identification of him by witness Kayla Cochran was tainted by the fact that she identified Marchman the day after these crimes were committed from an impermissibly suggestive single photograph of him.
Even if, as Marchman argues, Cochran's pre-trial identification of him from the photographic lineup was impermissibly suggestive, here, the witness had an independent basis for her identification of Marchman. See Wilson v. State, supra. Since the witness' in-court identification did not depend upon the prior photographic identification which appellant asserts to have been improper, but instead had an independent origin, we find no error in the trial court's denial of Marchman's motion for new trial.
7. Arnold does not raise the issue of the sufficiency of the evidence to sustain his conviction. Nevertheless, as is this Court's practice, we have reviewed the evidence and considered its legal sufficiency. Referring to the reasoning set forth in Division 1 in which we reviewed the sufficiency of the evidence against Marchman, we likewise conclude that the evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Arnold was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In addition to the evidence discussed in Division 1, Hunter and Green, in their trial testimony, also identified Arnold as one of the men involved in their kidnapping and both identified Arnold as the man who drove the Marquis. Woodward identified Arnold as one of the three armed men who arrived at his house a short time after the Garner home invasion in two cars, an Impala and a Marquis, and he was one of the men who drove away while Marchman remained at Woodward's house, later returning in only the Marquis, without the female passenger, and smelling of gasoline. The evidence was sufficient to exclude every reasonable hypothesis save that of guilt, and to warrant Arnold's conviction, either as a perpetrator who directly committed the crime or as a party to the crime, on each of the crimes charged.
8. For the reasons set forth in Division 5 of this opinion, we reject Arnold's assertion that reversible error is shown by the admission of the testimony of the convenience store owner regarding the identity of the store clerk shown on surveillance videotapes or still photos from those tapes.
9. Arnold asserts his Sixth Amendment right to confront a non-testifying witness against him was violated when the trial court admitted, over his objection, the hearsay testimony of two different witnesses relating to statements made to them by an alleged co-perpetrator who was unavailable for cross-examination. Arnold also argues this testimony was not admissible under any exception to the Hearsay Rule. We reject these assertions.
In the first instance, after conducting a hearing outside the presence of the jury, the trial court admitted under the necessity exception to hearsay the testimony of a witness who testified that Isaiah Walker told her about an interruption in his cell phone service. She further testified that she was Walker's former girlfriend, that they had dated for years, and that, although they were not dating at the time the crimes occurred, they remained in close contact and still confided in each other about personal matters. According to this witness, Walker told her just before his death that his cell phone service had been turned off on July 9 for non-payment. This testimony was relevant to explain why Walker's cell phone was not sending or receiving calls on the evening these events occurred.
Walker's statement to the witness regarding his cell phone service was not testimonial in nature, and thus, contrary to Arnold's assertion, the witness' testimony about these statements was not barred by the Confrontation Clause. See Franklin v. State, 298 Ga. 636, 784 S.E.2d 359 (2016). Accordingly, the testimony was admissible if it qualified as an exception to the rule against hearsay. Under the old Evidence Code,
(Citation and punctuation omitted.) Davis v. State, 294 Ga. 486, 487, 754 S.E.2d 67 (2014). The first prong of the exception was satisfied because Walker committed suicide and was not available to testify. The witness' testimony about her relationship with Walker was sufficient to demonstrate the trustworthiness of Walker's statement to her. No evidence was presented, however, with respect to the third prong of the admissibility test — whether the hearsay statement was more probative and revealing than any other available evidence. Presumably, evidence concerning Walker's phone service was available from his service provider. Nevertheless, other admissible evidence was presented at trial sufficiently linking Arnold's conduct with that of co-defendant Marchman and his co-perpetrator Walker. Consequently, even if this testimony about the interruption of service to co-perpetrator Walker's cell phone was erroneously admitted we find it was harmless error in light of the overwhelming evidence of Arnold's guilt. See London v. State, 274 Ga. 91(4)(c), 549 S.E.2d 394 (2001). Furthermore, as Walker's statements to the witness were neither custodial statements nor testimonial in nature, contrary to Arnold's assertion, no Bruton violation is shown. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1998); Billings v. State, 293 Ga. 99, 103-104, 745 S.E.2d 583 2013.
In the second instance, the trial court admitted the testimony of the friend to whose home in Alabama Marchman fled after commission of these crimes. The witness testified regarding certain statements Marchman made to him about what had transpired in Cobb County. The trial court admitted this testimony, over Arnold's objection, under the co-conspirator exception to hearsay. Pursuant to the rules of evidence applicable at the time of this trial, once the fact of a conspiracy is proved, the declarations of a conspirator during the pendency of the conspiracy are admissible against all the conspirators. See former OCGA § 24-3-5 (now codified at OCGA § 24-8-801 (d) (2) (E)); Hassel v. State, 294 Ga. 834, 839-840, 755 S.E.2d 134 2014. This exception to the hearsay rule applies to statements made not only during the events leading up to and during the crime "but also afterward, during the concealment phase of the conspiracy." Hassel, supra, 294 Ga. at 389(3), 754 S.E.2d 63. Here, ample evidence was presented of the existence of a conspiracy between Marchman, Arnold, and Walker to commit the crimes of which Marchman and Arnold were convicted. At the time Marchman made these statements, he had fled to Alabama in an obvious attempt to avoid apprehension and conceal the crime, and neither Arnold nor any other conspirator had been arrested or given a statement regarding the case. Moreover, the admission of Marchman's statements to a lay witness during the concealment phase of the conspiracy did not violate the Sixth Amendment Confrontation Clause because they were not testimonial in nature. See Allen v. State, 288 Ga. 263, 267, 702 S.E.2d 869 (2010). Accordingly, we find no error in the admission of this testimony.
10. The trial court admitted into evidence the testimony of witness Anthony Hall that, while Hall was incarcerated for an unrelated offense, he and Arnold were both on the same bus as they were being transported from the jail to the court for hearings. At trial, Hall testified that on the day he appeared for a hearing he identified Arnold as being one of the men, along with Marchman and Walker, who, on the day of these crimes, picked him up and gave him a ride in a blue car. Hall further testified at trial that, while on the transport bus, Arnold verbally threatened him for "snitching." Hall testified that Arnold told him he "was going out bad," and that Arnold was going to "kick his ass" and "f*** him up." Arnold asserts the trial court erred in allowing this testimony to be presented since it amounts to nothing more than inadmissible character evidence. We reject Arnold's assertion that no reason exists for the admission of Hall's testimony other than to prejudice the jury against him. "[E]vidence of a threat to a witness by the defendant is relevant as showing an attempt to prevent a witness from
All the Justices concur.