Murray v. State

328 Ga.App. 192

761 S.E.2d 590

MURRAY

v.The STATE.

No. A14A0715.

Court of Appeals of Georgia.

July 10, 2014.

Veronica Evette Brinson, for Appellant.

Karl David Cooke Jr., Myra Hutchinson Tisdale, for Appellee.

McFADDEN, Judge.

After a jury trial, Omega Murray was convicted of burglary. He appeals, challenging the sufficiency of the evidence, a variance between the indictment and proof at trial, the denial of a continuance, the refusal to remove a juror, and the use of his prior guilty pleas to impose a recidivist sentence. However, there was sufficient evidence to support the verdict, the variance complained of did not affect Murray's substantial rights, the trial court did not abuse its discretion in denying a continuance or in refusing to remove the juror in question, and Murray has shown no irregularity with any of the pleas used for recidivist sentencing. Accordingly, we affirm.

1. Sufficiency of the evidence.

Murray contends that there was insufficient evidence to support his burglary conviction. The contention is without merit.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Williams v. State, 326 Ga.App. 418, 419(1), 756 S.E.2d 650 (1) (2014) (citation omitted).

So viewed, the evidence shows that on June 7, 2011, a real estate broker called police to report that a man carrying a bag was seen going into a vacant house that she had listed for sale. An officer responded to the call and discovered that glass had been broken out of the back door, which was ajar. The officer saw Murray inside the kitchen, with a tool bag on the kitchen counter, using a screwdriver on a wall fixture. Screws were later found in Murray's pants pocket that matched those used to hold up a ceiling fan that had been taken down and placed by the back door of the house. Murray initially told the arresting officer that he was doing work on the house, but later claimed that he had gone inside the house to use the bathroom. At trial, Murray testified that he went on the property to urinate outside the house and that he then went inside the house because he was “just being nosey.” The real estate broker and the buyer of the house testified that they had not given anyone permission to enter the house.

Having reviewed all the evidence in the light most favorable to the verdict, we conclude “that there was sufficient evidence for the jury to find [Murray] guilty beyond a reasonable doubt of burglary. [Cit.]” Williams, supra at 419–420(1), 756 S.E.2d 650 (punctuation omitted). See also OCGA § 16–7–1(b) (defining burglary to include entering the dwelling house of another without authority and with the intent to commit a felony or theft therein).

2. Indictment did not properly identify owner of house.

Murray argues that the indictment did not give him adequate notice of the victim because it averred that he had entered the dwelling house of Willie Cotton, but the evidence presented at trial showed that sale of the house to Cotton was not actually closed until several days after the burglary. However, as the trial court correctly ruled, this did not constitute a fatal variance between the allegations in the indictment and the proof.

Our courts no longer employ an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance fatal. [Cits.]

Delacruz v. State, 280 Ga. 392, 396–397(3), 627 S.E.2d 579 (2006).

Here, the indictment definitely informed Murray of the burglary charge against him and sufficiently identified the property in question by its full address. “The indictment did not mislead [Murray] in such a manner that impeded his ability to present a defense or surprise him at trial, and [he] cannot be subjected to a subsequent prosecution for the burglary of the residence in question.” Abney v. State, 240 Ga.App. 280, 282(2), 523 S.E.2d 362 (1999) (citation and footnote omitted). Accordingly, the fact that Cotton did not actually finalize his purchase of the house until several days after the burglary does not constitute a fatal variance. See Abney, supra at 281–282, 523 S.E.2d 362 (no fatal variance where burglary indictment charged defendant with “entering the dwelling house of McGee, but the evidence at trial showed that McGee neither owned the house nor resided there”); Manemann v. State, 147 Ga.App. 747, 748–749(4), 250 S.E.2d 164 (1978) (no fatal variance where burglary indictment alleged that property was owned by person who turned out to be the janitor, not the owner).

3. Continuance.

Murray claims that the trial court erred in denying his motion for a continuance after the state violated OCGA § 17–16–8(a) by giving him the name of a witness less than ten days before trial. We find no reversible error in the denial of a continuance.

The record shows that the state gave Murray the name and contact information of an additional witness, the real estate broker, on September 29, 2012, and the trial started four days later on October 3rd. Murray's counsel orally moved for a continuance at the start of the trial, but the trial court denied the motion, telling counsel that she would have a chance to talk to the witness prior to her testimony. The state later called the broker to the witness stand. Before she testified, a bench conference was held at which Murray's counsel indicated that she had not yet talked to the witness. The trial court responded that the state could not prevent her from speaking to any witness, and Murray's counsel agreed. However, counsel did not request an opportunity to speak with the witness or seek any other relief. The bench conference ended and the witness then testified without objection.

“Under OCGA § 17–16–8(a), the prosecutor is required to furnish to defense counsel a witness list not later than ten days before trial.... [T]he purpose of the statute is to prevent a defendant from being surprised at trial by a witness he has not had an opportunity to interview.” Rollinson v. State, 276 Ga.App. 375, 378(1)(c), 623 S.E.2d 211 (2005) (citations and punctuation omitted).

OCGA § 17–16–6 sets forth the remedies for a defendant upon the [s]tate's failure to comply with OCGA § 17–16–8, providing that the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.

Wilkins v. State, 291 Ga. 483, 486(5), 731 S.E.2d 346 (2012). Under this statute, there is not “an exclusive remedy for a defendant or a fatal consequence to the [s]tate for failure to comply with the discovery mandates. Instead, it cloak[s] the trial court with the discretion to use its own judgment ... and we will not reverse its decision absent an abuse of discretion.” Norris v. State, 289 Ga. 154, 156(2), 709 S.E.2d 792 (2011) (citations and punctuation omitted).

Here, the trial court did not abuse its discretion in denying a continuance and instead ruling that Murray would have an opportunity to interview the witness. See Taylor v. State, 305 Ga.App. 748, 753(2)(a), 700 S.E.2d 841 (2010) (usually a sufficient remedy for the defense to be afforded opportunity to interview the witness). Thereafter, Murray acquiesced in the lack of an interview prior to the witness' testimony by failing to object or request additional relief. “The motion for continuance was not renewed, and he never requested the exclusion of testimony, nor does he complain in this [c]ourt that any ... testimony should have been excluded. Appellant cannot complain of a ruling his own procedure or conduct aided in causing.” Norris, supra at 157(2), 709 S.E.2d 792 (citations and punctuation omitted).

Moreover, even if we were to presume error in the denial of a continuance, Murray has shown no harm. “[T]o be entitled to a new trial based upon the denial of [a] motion for a continuance, [an appellant] has the burden of showing that he was harmed by that denial. [Cits.]” Hughes v. State, 323 Ga.App. 4, 9–10(3), 746 S.E.2d 648 (2013). Murray has made no proffer of evidence that he could have introduced had a continuance been granted, nor has he otherwise shown that a continuance would have benefitted him. See Hughes, supra at 10(3) & n. 14, 746 S.E.2d 648 (absent proffer of testimony or other evidence to demonstrate harm, defendant fails to show reversible error in denial of a continuance). Accordingly, Murray has not carried his burden of showing harmful error.

4. Refusal to remove a juror.

During jury deliberations, one of the jurors informed the court that he might be uncomfortable rendering a decision because he recognized Murray's wife as a cashier at a store where he shops. The trial court questioned the juror about the situation. During that inquiry, the juror stated that he could be fair and make a decision based solely on the law and facts. Murray moved for a mistrial, but the trial court denied the motion and...