Albury v. State

314 Ga. 459

877 S.E.2d 548

ALBURY

v.The STATE.

S22A0616

Supreme Court of Georgia.

Decided: August 23, 2022

Eliot Jay Abt, Abt Law Firm, P.C., Suite 525, 2295 Parklake Drive, Atlanta, Georgia 30345, Katie Alice Hingerty Borodin, General Counsel, The Hingerty Law Firm, LLC, 2295 Parklake Drive NE, Suite 525, Atlanta, Georgia 30345, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Michael Alexander Oldham, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Deborah D. Wellborn, A.D.A., Sherry Boston, District Attorney, Jason Matthew Rea, A.D.A., Dekalb County District Attorney's Office, 556 North McDonough Street, Decatur, Georgia 30030, for Appellee.

Warren, Justice.

Riki Ray Albury was convicted of malice murder and other crimes in connection with the stabbing death of Ronald Roach.¹ On appeal, Albury contends that the trial court erred by failing to excuse two jurors for cause and by admitting a particular autopsy photograph into evidence, and that Albury's trial counsel provided constitutionally ineffective assistance. Seeing no error, we affirm.

1. The evidence presented at Albury's trial showed the following. Roach's body was discovered on the floor of his bedroom on the morning of June 28, 2018. There was no indication of forced entry into his apartment, but there was blood in several locations inside, especially in Roach's bedroom where there were signs of a struggle. Roach's vehicle was missing. Neighbors who lived in the apartment below Roach's heard an argument, loud noises, and yelling upstairs at around 3:00 or 4:00 a.m. on the morning Roach was killed. They also heard the sound of people running outside the apartment, a car engine cranking, and a car driving away.

Evidence placed Albury in Roach's apartment on the night of the murder. Roach paid for rideshare services on the evening of June 27, 2018—including for a ride to a location near Roach's apartment for a man later identified as Albury. Prentiss Green visited Roach's apartment on the night of June 27, 2018, went into Roach's bedroom, saw two young men and a woman engaged in sexual activity, and left after 20 minutes. Green later identified the two men as Albury and Jared Kelvin Smith from photographic lineups. A GBI forensic biologist testified that the one pair of underwear recovered at the scene of Roach's murder tested positive for DNA matching Roach, Albury, and Kessiah Rowe.

Rowe testified that on the night of Roach's murder, Smith sent an Uber to bring her to Roach's apartment, where she engaged in sexual activity with Smith and Albury while Roach sat nearby at his desk. Rowe left with Smith and Albury and went to a gas station, where there was an "altercation" with some other men and where she saw Smith pull out a knife. Rowe then went back to Roach's apartment with Smith and Albury. A heated argument ensued, and Smith gave Albury a "confirmation look" and struck Roach three times with a closed fist on the back of Roach's neck while Roach was sitting at his dining room table. Due to the type of motion Smith made, Rowe believed that Smith was stabbing Roach. Roach ran to his bedroom, but Smith forced his way inside. Rowe heard fighting and walked to the bedroom. She saw blood on the bed and observed Smith attacking Roach on one side of the bed and Albury watching from the other side of the bed. Rowe left the apartment. After 15 to 20 minutes, Smith, Albury, and Rowe left in Roach's car. While in the car, Albury said that "we left" Roach's face "black and blue" and that "we could have stopped at any time." Smith and Albury changed clothes, and Smith later dropped off Albury and Rowe at a motel.

Dr. Christy Cunningham, a DeKalb County medical examiner who performed Roach's autopsy, testified that Roach's cause of death was multiple stab wounds; she identified 38 stab wounds across Roach's body that were consistent with wounds made by a single knife or multiple knives. She also identified blunt-force trauma injuries on Roach's head and face.

2. Albury contends that the trial court erred by failing to excuse two jurors because, as they explained during voir dire, they had certain scheduling conflicts during the week of trial. The trial transcript does not demonstrate that Albury made any objection or motion to strike the two jurors at issue for cause. And Albury does not claim that he did so or that some portion of the transcript showing such an objection or motion is missing. Accordingly, this issue has not been preserved for ordinary appellate review. See Hill v. State , 310 Ga. 180, 186, 850 S.E.2d 110 (2020) ("Because Hill did not make a request to strike the juror for cause, the issue was waived for ordinary appellate review."); Veal v. State , 301 Ga. 161, 163, 800 S.E.2d 325 (2017) ("Veal concedes that he did not make a request to strike the jurors. Therefore, the issue was waived for direct review."). See also Thompson v. State , 294 Ga. 693, 700-701, 755 S.E.2d 713 (2014) (Nahmias, J., concurring specially) (noting lack of legal authority imposing any duty on trial courts to excuse jurors for cause sua sponte). Moreover, Albury does not claim that the trial court committed plain error, and in any event "plain error review is not available for this issue." Hill , 310 Ga. at 186, 850 S.E.2d 110. 3. Albury also contends that the trial court erred by admitting into evidence a post-incision autopsy photograph. He argues that the trial court never properly subjected the photograph to the balancing test required under OCGA § 24-4-403 ("Rule 403") and that a thorough balancing test would have resulted in exclusion of the photograph. We disagree.

Under our current Evidence Code, "we generally evaluate the admissibility of autopsy photographs under OCGA §§ 24-4-401, 24-4-402, and 24-4-403 (‘Rule 401, 402, and 403’), relying on ‘our cases decided under the new Evidence Code, and also looking to federal case law for guidance.’ " Mitchell v. State , 307 Ga. 855, 863, 838 S.E.2d 847 (2020) (quoting Venturino v. State , 306 Ga. 391, 396, 830 S.E.2d 110 (2019) ). Rule 401 defines "relevant evidence broadly," State v. Orr , 305 Ga. 729, 736, 827 S.E.2d 892 (2019), as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." OCGA § 24-4-401. Rule 402 provides that "[a]ll relevant evidence shall be admissible, except as limited by constitutional requirements or as otherwise provided by law or by other rules, as prescribed pursuant to constitutional or statutory authority, applicable in the court in which the matter is pending. Evidence which is not relevant shall not be admissible." OCGA § 24-4-402. And under Rule 403, "[r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." OCGA § 24-4-403. "Decisions regarding relevance are committed to the sound discretion of the trial court, and the exclusion of relevant evidence under Rule 403 is an extraordinary remedy that should be used only sparingly." Venturino , 306 Ga. at 395, 830 S.E.2d 110 (citations and punctuation omitted). "Autopsy photographs may be relevant and probative to show the nature and location of a victim's injuries, even if the cause of death is not disputed." Allen v. State , 307 Ga. 707, 710, 838 S.E.2d 301 (2020).

Albury filed a pre-trial motion in limine to exclude from evidence a post-incision autopsy photograph of an injury to Roach's head after the skin of his scalp and face had been peeled back. In the motion, Albury argued that the photograph did not depict a fatal injury, was not required to assist the jury's understanding of the circumstances surrounding Roach's death, and could be described effectively with the medical examiner's diagram of the injuries, as it was at co-indictee Smith's trial. When the motion in limine was heard at trial, the State provided the trial court with a copy of this Court's opinion in Venturino and referred to that decision's recognition of "the balancing test in 403." Both parties extensively argued about the relevance of the photograph, including the weight of its probative value and its danger of unfair prejudice. The trial court said that it did not see the photograph as "that gory," ruled that it would be relevant "based on the law being cited by the State," and admitted it over Albury's objection.

Although the trial court did not cite the text of Rule 403 in its ruling, the trial transcript shows that both parties argued the text of the rule, that the trial court discussed the photograph's relevance and potential prejudice, and that it based its ruling on the case the State cited, Venturino , 306 Ga. at 395-396, 830 S.E.2d 110. In so doing, the trial court implicitly conducted the proper analysis under Rule 403, even though it did not expressly reference that rule. See Johnson v. State , 312 Ga. 481, 494, 863 S.E.2d 137 (2021) ("[W]e see no abuse of discretion in the trial court's implicit conclusion that the probative value of [certain] evidence was not substantially outweighed by its prejudicial effect.") (emphasis supplied).

We next consider whether the trial court's ruling amounted to an abuse of its discretion and conclude that it did not. In that regard, Albury describes the photograph at issue as "gory," "graphic," "ghastly," and "gruesome," and argues that it neither showed Roach's cause of death nor supported the State's theory that more than one person attacked Roach. However, Dr. Cunningham testified that because of Roach's thick hair, she could see his head injury only after pulling back his scalp. The photograph shown to the jury...