THOMPSON, Chief Justice.
Appellant Marshae O'Brian Hickman was convicted of the attempted rape and murder of Candice Parchment.
1. Viewed in a light favorable to the verdict, the evidence showed the following: Appellant and the victim went to high school together, along with Jermaine Robinson,
When appellant, Robinson and the victim entered the abandoned house, appellant told Robinson to hit the victim in the head with a rake and choke her, while appellant blocked the door to prevent her escape. Appellant groped the victim while Robinson choked her and tried to hold her down on a mattress. While the attack was taking place, the victim's mother drove up to the abandoned house. When appellant and Robinson saw the lights of the mother's car, they let the victim go. As the victim ran away, appellant threatened to kill her if she told anyone what happened. The victim ran up to her mother's car and jumped in. She was "in a panic" and told her mother "somebody tried to rape me," but she managed to escape when the assailants saw the car approach the abandoned house. The mother urged the victim to go to the police, but she refused to do so. The attack transpired on the evening of January 5, 2010.
Subsequently, the victim told a close friend, Danny Jackson, about the incident. Jackson approached Robinson and warned him to stay away from the victim. When Robinson told appellant that the victim was telling others about the attempted rape, appellant responded that Robinson should not worry about the victim.
Three months later, on April 28, 2010, the victim's mother awoke to find the victim missing. The mother telephoned the victim numerous times to no avail. She contacted police to report the victim missing. Eventually, she received two text messages, which were purportedly from the victim. The first stated, "I am okay." The second read, "I am
Several months passed. The mother continued the search effort for the victim until November 2010, when the victim's remains and clothing were found under a mattress, behind a dumpster, in a nearby apartment complex. Appellant lived in that complex.
In October 2011, as she prepared to move to a new home, the mother found the victim's diary. An entry in the diary named "Marshae" and "Jermaine" as the individuals who attempted to rape the victim. The mother turned the diary over to police, and appellant, who was in jail at the time for burglary, was interviewed by detectives on two separate occasions.
During the interviews, appellant made statements implicating himself in both the attempted rape and murder cases: He said the rape was Robinson's idea; he stood at the front door while Robinson and the victim fought inside the abandoned house. Concerning the murder, appellant said that he saw the victim the night before she went missing; that she was walking along a trail, which led from his apartment complex to her subdivision; that he put his arm around her and she "fell limp;" and that she did not have a pulse, so he covered her with a mattress. Furthermore, he admitted that he found deep scratch marks on his arm when he awoke the next morning.
The evidence was sufficient to enable any rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. See
2. Appellant asserts the trial court erred in joining the two indictments for trial. We disagree.
Inasmuch as the offenses were not joined solely because they were of the same or similar character, severance was not mandatory, and it was incumbent upon the trial court to determine whether severance was necessary to achieve a fair determination of appellant's guilt or innocence as to each offense. Id. The trial court determined both pre-trial and, more explicitly, post-trial, that the jury would be able to distinguish the evidence and apply the law intelligently to
3. Appellant contends that the trial court erred by admitting his custodial statements into evidence. As noted above, appellant was interviewed on two separate occasions. The first interview took place on October 20, 2011; the second interview occurred the next day. Before each interview, Detective Ashley Melvin informed appellant of his Miranda rights. Using a printed form, the detective read appellant his rights, one at a time. It was Detective Melvin's practice to have a suspect initial each of the rights on the form to signify he understood them. Appellant initialed each of the rights on the form; furthermore, he signed and dated the form as a whole. The detective testified that appellant did not ask any questions about his rights and did not appear to be confused or to have any trouble understanding them. He added that appellant said he would not be talking with him if he did not want to do so.
Appellant argues that the statements he made during the custodial interviews were inadmissible because they were not made knowingly and voluntarily. In this regard, appellant relies upon the expert opinion of Dr. Bruce Frumkin, a forensic psychologist, who testified on appellant's behalf at a Jackson-Denno
Dr. Frumkin met with appellant for more than five hours and administered a battery of psychological tests to him. He concluded that appellant had an IQ of 98 (near average) and a verbal comprehensive score of 91 (lower 27 percentile), and that compared to other criminal defendants these scores would not indicate that he was "at risk for not understanding Miranda rights or not being able to appreciate his Miranda rights." Nonetheless, Dr. Frumkin, whose specialties include competency to waive Miranda rights, opined that although appellant knew he had a right to an attorney in the abstract, he was confused about that right because he had "just finished his burglary charge" and "had just seen his public defender," when he was interviewed by Detective Melvin. In addition, Dr. Frumkin said appellant did not understand what it meant when he was informed that he could exercise his Miranda rights at any time.
Appellant testified at the Jackson-Denno hearing and admitted: (1) that he did not have any questions while Detective Melvin read the Miranda rights form to him; (2) that Detective Melvin read these words to him at the end of the form: "I've been advised of my rights and I understand each of those rights;" and (3) that he signed the form. When asked if he actually understood his rights, appellant answered, "I would say yes, but I was still confused on the part about the attorney."
After weighing the evidence presented at the Jackson-Denno hearing, the trial court determined appellant was advised of his rights, understood them, and waived them voluntarily. See generally
4. Appellant claims the trial court erred in admitting the victim's diary entries into evidence. We disagree.
The trial court admitted the evidence under the doctrine of forfeiture by wrongdoing. This doctrine holds that "one who obtains the absence of a witness by wrongdoing forfeits the right to confrontation."
The trial court found by a preponderance of the evidence that appellant killed the victim "to make her unavailable as a witness." See
Relying upon OCGA § 24-8-807, appellant asserts that it was incumbent upon the trial court to find that the diary entry was more probative on the point for which it was offered than other evidence the State was able to procure. We disagree. By its own terms, OCGA § 24-8-807 does not apply to evidence which is admissible under another exception to the hearsay rule. See also
5. Finally, appellant contends the trial court erred in its instruction to the jury on battery. Specifically, the trial court charged the jury that a person commits the offense of battery "when he or she intentionally causes substantial physical harm" and a person commits the offense of battery "when that person intentionally causes visible bodily harm to another." Appellant contends this was error because these definitions were used to describe both battery and involuntary manslaughter (as a lesser included offense of felony murder), which confused the jury. However, because the battery and involuntary manslaughter convictions were merged and vacated by operation of law, see fn. 1, supra, this issue is moot. See
All the Justices concur.