Appellant Bobby Leroy Brown was convicted of the malice murder of his wife, Roberta Brown, and two counts of tampering with evidence.
1. The State presented evidence that the victim was killed in the early morning hours of October 15, 2007, outside her Athens-Clarke County residence and near a vehicle registered in her name. She died as a result of craniocerebral trauma caused by blunt force inflicted by an object striking her at least fifteen times. A tree branch with blood on it that matched the victim's DNA profile was found near the victim's body. A neighbor who heard what she believed to be a beating saw a man wearing jeans and a light-colored t-shirt wipe the passenger side of the victim's vehicle and carry two filled garbage bags from the vehicle. A police canine followed a trail from the garbage bags, which were left in the area, to the back porch of the nearby home of appellant's sister, and police officers followed shoe impressions made in the dewy grass from the victim's body to a spot near the sister's home. Appellant's sister told inquiring officers that appellant was taking a shower in her home. She permitted police to enter her home, and they placed appellant in custody. In a search of the home conducted after verbal and written consent was given by appellant's sister, police seized a pair of red-stained tennis shoes from the bathroom where appellant had showered and, from a washing machine that smelled of bleach, a wet t-shirt, a wet pair of jeans, and a wet medical card and an identification card, both bearing appellant's name. The clothing matched the description given by the neighbor who saw a man wiping the victim's car, and the bloodstains on one of the tennis shoes matched the DNA profile of the victim. There was evidence of prior police responses to emergency calls complaining of domestic disputes between appellant and the victim, with the police repeatedly unable to determine who was the primary aggressor in these incidents.
The evidence was sufficient to authorize a rational trier of fact to convict appellant of malice murder and two counts of tampering with evidence (by wiping the passenger side of the victim's vehicle with a towel so as to alter or destroy physical evidence, and by bleaching and washing his clothing to destroy, alter, and conceal physical evidence). Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). However, because appellant tampered with evidence in his own case and not to prevent the apprehension or prosecution of anyone other than himself, he was guilty of misdemeanor tampering and therefore could not receive the consecutive ten-year sentence imposed by the trial court. OCGA § 16-10-94(c); White v. State, 287 Ga. 713, 699 S.E.2d 291 (2010); English v. State, 282 Ga.App. 552(2), 639 S.E.2d 551 (2006). Accordingly, the sentences imposed for the tampering convictions are vacated and the case remanded for re-sentencing on those convictions. White v. State, supra, at 718(1)(d).
Under the circumstances of this case, we agree with the trial court's determination that the warrantless search was authorized by the householder's valid consent. Valid, i.e., voluntary, consent obviates the need for a search warrant (State v. McBride, 261 Ga. 60(1), 401 S.E.2d 484 (1991)), and the State bears the burden of showing that consent was voluntarily given and was not the result of duress or coercion. Gray v. State, 296 Ga.App. 878(5)(b), 676 S.E.2d 36 (2009). See also Crowe v. State, 265 Ga. 582(6), 458 S.E.2d 799 (1995). At the hearing, the State presented a police officer's audiotape of the householder giving verbal consent and the written consent executed by the householder to search the premises and remove items of property or evidence of a crime. The officer who obtained the consent testified that the householder was not coerced, threatened, or placed under duress in order to obtain her consent.
Citing State v. McCarthy, 288 Ga.App. 426(2), 654 S.E.2d 239 (2007), appellant contends that the valid consent to search given by his sister did not authorize the seizure of his clothing from the household's washing machine and his shoes from atop the toilet tank in the bathroom. McCarthy and similar cases hold that a person with authority to consent to a search of premises does not have authority to give a valid consent to open and search a closed bag, purse, backpack, suitcase, trunk, etc., that is known to belong to another. Appellant's items of clothing were not found in a closed container known to belong to appellant; rather, the shoes were found in plain view in the bathroom and the clothing and appellant's identity cards were found in the household's washing machine, which was covered by the householder's valid consent to search. See State v. Real, 201 P.3d 2 (Kan.App. 2009) (unpublished opinion); People v. DiNapoli, 28 A.D.3d 1013, 813 N.Y.S.2d 280 (NYAD 2006). It was not necessary to obtain appellant's consent to seize his property, as mere ownership of the items seized in a search for which valid third-party consent to search was obtained is not an overriding factor. "The
3. Appellant next takes issue with the trial court's admission of a verified petition executed by the victim when she sought a temporary protective order from the Superior Court of Clarke County eleven days before her death. After the trial court instructed the jury the verified petition was being admitted into evidence "for the limited purpose of simply showing what she said to the Court [and] not making any finding that what she said was true ...," the assistant district attorney read to the jury the portion of the petition in which the victim wrote a description of an act of family violence purportedly committed by appellant against the victim and/or minor children: "He is very abused and violent to me and the kids. He is threatening me to hurt me for the last two months or so. We still fight, fussing. On October 3, 2007, he came to [a park] football field and stole my jeep and like to hit around 15 children. [He] always want to fuss, fight around the kids." Appellant objected on the ground that the victim's sworn statement was testimonial in nature and appellant had not had the opportunity to cross-examine her with regard to its contents. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The trial court ruled the petition for a temporary protective order was non-testimonial because it was an emergency request for the court to act and therefore similar to a call to 911 for emergency help.
We disagree with the trial court's rationale.
Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). The victim's sworn statement did not report events as they were actually happening and therefore differs from a call to 911 for emergency assistance. See id., 547 U.S. at 827, 126 S.Ct. 2266. The victim's "narrative of past events was delivered at some remove in time from the danger she described" and was not providing "information enabling officers immediately to end a threatening situation.. . ." Id., at 832, 126 S.Ct. 2266. Inasmuch as the victim's sworn statement was testimonial in nature, it was error to admit it over appellant's objection that it violated his Sixth Amendment right to confrontation. Wright v. State, 285 Ga. 57(3)(a), 673 S.E.2d 249 (2009).
While the error is one of constitutional magnitude, it can be harmless error if the State can prove beyond a reasonable doubt that the error did not contribute to the verdict, such as when the evidence at issue is cumulative of other properly-admitted evidence or when the evidence against the defendant is overwhelming. Willingham v. State, 279 Ga. 886(1), 622 S.E.2d 343 (2005). The admission of the hearsay in the case before us is harmless error because the hearsay was cumulative of other evidence, namely the testimony of eight officers that they had responded to several emergency calls for assistance concerning domestic violence at the home of appellant and the victim. See Copprue v. State, 279 Ga. 771(4), 621 S.E.2d 457 (2005); Moody v. State, 277 Ga. 676(4), 594 S.E.2d 350 (2004).
4. Lastly, appellant complains the trial court erred when it admitted into evidence the temporary protective order issued eleven days before the victim was killed. Appellant did not object to the fact that the protective order was in place at the time the victim was killed, but requested the redaction of language in the order wherein the issuing court stated it appeared "that probable cause exists that family violence has occurred in
Judgment affirmed and case remanded for resentencing.
All the Justices concur.