Jordan v. State

748 S.E.2d 876, 293 Ga. 619, 2013 Fulton County D. Rep. 2943, 2013 WL 5302620, 2013 Ga. LEXIS 719
Supreme Court of Georgia·Decided September 23, 2013·No. S13A0964·Published·Cited by 10 cases

Opinion

Thompson, Chief Justice.

Appellant Darius Jordan was convicted of felony murder, armed robbery, and other crimes arising out of the shooting death of James Yarbrough.1 He appeals from the denial of his motion for new trial, asserting the trial court erred by admitting evidence of his telephonic [620] statements to a friend in violation of Miranda, denying his motions for mistrial, and failing to find that trial counsel provided ineffective assistance. We find no reversible error and affirm.

Viewed in the light most favorable to the verdict, the jury was authorized to find that on the evening of December 22, 2007, Yarbrough and his nephew, Kenneth Kaiser, were walking to a check cashing store to cash Yarbrough’s $1,500 pay check. Appellant and another male offered to give them a ride in their black Honda. Appellant, who was wearing a Santa hat, identified himself as “Whodi.” The four men drove around for several hours, talking and making various stops along the way, with Yarbrough telling the men that he had money to spend. After Yarbrough cashed his check and gave $100 to Kaiser, Kaiser heard appellant talking on his cellular phone and mentioning the $1,500. Later, appellant parked the car on a street, and a third individual came out of hiding with a gun. Appellant and the gunman ordered Yarbrough and Kaiser out of the car at gunpoint, rifled through their pockets, and took their money. Yarbrough, who was vocally angry about the robbery, was shot after he refused to walk away.

Using videotape from the check cashing establishment, police identified the black Honda and located its owner, Bertha Grier. At the time the vehicle was located, it was being driven by Grier’s son, who called his mother to let her know police were questioning him about the crimes. Grier drove to the parking lot where police had stopped the car and told investigator Kevin Otts that on the night of the crimes she loaned the car to appellant, whom she knew as “Whodi,” and stated that he was at that time wearing a Santa hat. Grier then called appellant, placed him on speaker phone in Otts’ presence, and asked appellant why police were saying her car had been involved in a murder. Appellant responded that he had picked up two men, took them to cash a check with the intent to rob them, but after one of the men “bucked,” they shot him. After giving several statements to police in which he claimed he dropped off the victims earlier in the evening, appellant admitted his involvement in the crimes.

We conclude the evidence was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crime of felony murder and the other crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

[621]*6211. We find no error in the admission of appellant’s statements to Grier made without the benefit of warnings as required by Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). Appellant’s statements were made during a telephone conversation initiated by Grier at her insistence because she wanted to know why police thought her car had been involved in a murder and because she did not want her son, who was driving the car at the time of the stop, to be wrongfully implicated. Otts did not ask Grier to call appellant, but in fact, discouraged her from making the call because he feared she would alert appellant that police were looking for him. In addition, Otts did not ask any questions during the conversation; nor did he instruct Grier to make any specific inquiries. Absent any evidence that Grier was acting as an agent of law enforcement or that appellant was restrained or in custody at the time he made the challenged statements, Miranda does not apply. See Colorado v. Connelly, 479 U. S. 157, 170 (107 SCt 515, 93 LE2d 473) (1986) (“The sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion”); Sewell v. State, 283 Ga. 558, 560-561 (662 SE2d 537) (2008) (Miranda warnings not necessary unless reasonable person in suspect’s situation would perceive he was in custody); Cook v. State, 270 Ga. 820, 826 (514 SE2d 657) (1999) (.Miranda not implicated when accused makes incriminating statements to person other than law enforcement, such as a family member or close friend); Harper v. State, 249 Ga. 519 (4) (b) (292 SE2d 389) (1982) (witness not agent of law enforcement where she visited defendant of her own initiative and officers did not request that she seek specific information). Appellant has failed to present any evidence that his statements were involuntarily made or were induced by hope of benefit. See OCGA § 24-3-50.

2. Appellant contends the trial court erred by denying his two motions for mistrial.

(a) The first motion for mistrial was made after investigator Otts testified on re-direct examination that early in his interrogation appellant “was playing games back and forth, didn’t want to give us the full truth even though we knew so much of the truth” and that appellant kept giving them “the run-around.” Appellant contends this testimony went to the ultimate issue in the case, which he argues was whether he was being truthful about his innocence, and therefore, it was inadmissible opinion evidence. See OCGA § 24-9-65.2

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Jordan v. State, 748 S.E.2d 876, 293 Ga. 619, 2013 Fulton County D. Rep. 2943, 2013 WL 5302620, 2013 Ga. LEXIS 719 (Ga. 2013).

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