Stinski v. State

281 Ga. 783

642 S.E.2d 1

STINSKI v. The STATE.

No. S06A1455.

Supreme Court of Georgia.

February 2, 2007.

Reconsideration Denied March 27, 2007.

Michael Gregory Schiavone, Steven L. Sparger, Jackson & Schiavone, Willie T. Yancey, Jr., Willie T. Yancey, II, P.C., Savannah, for Appellant.

David T. Lock, Asst. Dist. Atty., Gregory M. McConnell, Asst. Dist. Atty., Spencer Lawton, Jr., Dist. Atty., Thurbert E. Baker, Atty. Gen., Susan V. Boleyn, Asst. Atty. Gen., for Appellee.

HUNSTEIN, Presiding Justice.

Darryl Scott Stinski has been indicted on two counts of malice murder, two counts of burglary, two counts of arson in the first degree, five counts of entering an automobile, one count of cruelty to children in the first degree, and one count of possession of a controlled substance with intent to distribute. The crimes allegedly occurred on April 11, 2002. The State has given notice of its intent to seek the death penalty. This Court granted Stinski's application for interim review and directed the parties to address whether the trial court erred in denying Stinski's motion to suppress evidence obtained during a warrantless seizure and search of a red tote bag; whether the trial court erred in refusing to suppress Stinski's first custodial statement; whether the trial court erred in denying Stinski's motion to exclude certain photographs from evidence; and whether the trial court erred in denying Stinski's motions concerning the amended discovery statute. Stinski has raised an additional argument alleging that the trial court erred in denying his motion to quash the indictment based on the participation of an allegedly-ineligible grand juror. For the reasons set forth below, we find no error.

1. Stinski filed a motion to suppress a red tote bag and its contents. The trial court denied the motion and the State argues, inter alia, that the ruling was correct because Stinski lacks standing to seek suppression of the tote bag in that it was property stolen from one of the victims. See Sanborn v. State, 251 Ga. 169(1), 304 S.E.2d 377 (1983) (no legitimate expectation of privacy or possessory interest in stolen property). The sole evidence on this issue introduced at the hearing on Stinski's motion to suppress was testimony by a police officer that residents in the home where Stinski had been staying voluntarily removed the tote bag from the home then contacted the police to come for the bag and that the residents had repeated to police information they had overheard that indicated the bag contained items stolen from the victims.

Although "the burden of proving that the search and seizure were lawful shall be on the state," OCGA § 17-5-30(b); see Davis v. State, 266 Ga. 212, 465 S.E.2d 438 (1996), the defendant bears the burden of proof where his or her standing to raise a challenge to the legality of a search or seizure is contested by the State. Todd v. State, 275 Ga.App. 459(1), 620 S.E.2d 666 (2005); Atwater v. State, 233 Ga.App. 339(2), 503 S.E.2d 919 (1998). See OCGA § 24-4-1; see also 6 LaFave, Search and Seizure, § 11.2(b), pp. 46-47 (4th ed.2004). Stinski presented no admissible testimony on the question whether he was "aggrieved by an unlawful search and seizure . . . of property, the possession of which is not otherwise unlawful," OCGA § 17-5-30(a), and accordingly cannot prove he has standing to raise a challenge to the legality of the search of the red tote bag. Thus, the trial court did not err by denying Stinski's motion to suppress the evidence obtained through the search of the tote bag.¹

2. Stinski argues that his custodial statements are inadmissible for a number of reasons. As set forth below, we disagree.

(a) Stinski argues that his custodial statements are inadmissible because he was offered a hope of benefit during his custodial interrogation in violation of OCGA § 24-3-50 by certain statements made to him by the interrogating officers. The statements indicated that Stinski should help himself, that it was in his "best interest to tell" what he knew, and that the officers would "take [his] tape and show the district attorney and the judge" that he did not want to help himself. This Court has held that in applying OCGA § 24-3-50,

[i]t is not improper for the police to encourage a suspect to help herself by telling the truth. It also does not render a statement involuntary for the police to tell a suspect that the trial judge may consider her truthful cooperation with the police.

( Footnotes omitted.) Taylor v. State, 274 Ga. 269, 273(2), 553 S.E.2d 598 (2001). The trial court did not clearly err by finding that the statements in question did not constitute a hope of benefit.

(b) Stinski argues that his custodial statements are inadmissible because they are the fruit of his allegedly-illegal arrest in his co-indictee's home without a warrant. Pretermitting the question of whether Stinski had a constitutional privacy interest based on his status as an invited guest and whether he therefore has standing to challenge the entry into the home without a warrant, see 3 LaFave, Search and Seizure, § 11.3(b), pp. 143-162 (4th ed.2004), we find that his statements made later outside the home during his custodial interrogation are admissible regardless of whether his arrest inside the home without a warrant was illegal. Even where an arrest is unlawfully made inside a residence without a warrant, a subsequent statement made outside the residence need not be suppressed on Federal constitutional grounds. Pittman v. State, 277 Ga. 475(4), 592 S.E.2d 72 (2004). Stinski's arguments based on OCGA § 17-5-30(a) are misplaced because that statute concerns "tangible evidence and is not the proper vehicle to challenge the admissibility of a confession. [Cit.]" Bell v. State, 280 Ga. 562, 563 fn. 2 (2), 629 S.E.2d 213 (2006).²

(c) Stinski argues that there was not probable cause for his arrest. This argument is meritless, as officers had been informed by other residents in the home where Stinski was living that he had admitted killing the victims, and that Stinski had even shown the other residents a tooth from one of the victims.

(d) Stinski argues that his custodial statements are inadmissible because they are the fruit of the search of the red tote bag. See 6 LaFave, Search and Seizure, § 11.4(c) (4th ed.2004). As discussed above, Stinski has failed to bear his burden to prove his standing to challenge the legality of the search of the tote bag. Accordingly, his claim that the statements are inadmissible as the fruit of an unlawful search must fail.

3. Stinski filed a motion to exclude a number of photographs of the victims' badly burned bodies and body parts. As to those photographs that depict stabbing and cutting wounds inflicted before the fire and the effects of the fire set by the perpetrators, we find that the trial court did not abuse its discretion in weighing the photographs' probativeness against any undue prejudice. See, e.g., Whitaker v. State, 275 Ga. 521(2), 570 S.E.2d 317 (2002). We reach this finding despite Stinski's contention that the same relevant matters could possibly be proven through testimony rather than through photographs because we recognize that photographs are inherently more persuasive regarding the existence of the things they depict than testimony regarding those same things.

The trial court did not explicitly address and Stinski has raised no challenge to three photographs that show the complete jaw removed from Susan Pittman's body and two photographs that seem to depict another excised portion of one of the victims' bodies. This Court has held that mid-autopsy and post-autopsy photographs are admissible only when they depict injuries or other relevant matters not otherwise apparent. See Jackson v. State, 272 Ga. 429(2), 531 S.E.2d 700 (2000); Brown v. State, 250 Ga. 862(5), 302 S.E.2d 347 (1983). Thus, although we do not find any reversible error, the trial court is cautioned that this opinion should not be construed as a finding that these five photographs are admissible.

4. On June 19, 2002, Stinski filed written notice of his election to participate in the criminal discovery procedure. See OCGA § 17-16-1 et seq. That procedure was amended during the pendency of Stinski's pre-trial proceedings by the Criminal Justice Act of 2005 and a subsequent, untitled act. 2005 Ga. Laws, p. 20, §§ 12, 13; 2005 Ga. Laws, p. 474, § 1. The amended discovery procedure applies to Stinski's case because the act amending that procedure specifies that the amendments "shall apply to all trials which commence on or after July 1, 2005" and Stinski's trial has not yet begun. 2005 Ga. Laws, p. 20, § 17. Stinski argued in the trial court that the amended discovery procedure is unconstitutional and, alternatively, that he should be allowed to opt out of it. We disagree.

(a) We presume the General Assembly enacted the amendments to the discovery procedure with knowledge of the existing law. See Hart v. Owens-Illinois, Inc., 250 Ga. 397, 400, 297 S.E.2d 462 (1982). With this knowledge, the General Assembly set an effective date that would encompass pending cases. 2005 Ga. Laws, p. 20, § 17. The amendments make no alteration to the portion of the procedure governing how and when defendants elect to participate in the procedure. Nor do the amendments create any exceptional treatment to be applied to those defendants like Stinski who had already elected to participate in the procedure but whose trials had not yet begun. In view of the General Assembly's clear intent, we hold that the amendments to the discovery procedure apply to Stinski's case and that his previous election to participate in that procedure continues to be binding upon him. This holding dispenses with Stinski's argument that he should be permitted to opt out of the discovery procedure as a matter of statutory law.

(b) Stinski argues that the amended discovery procedure is unconstitutional because it imposes certain...