Moore v. State

674 S.E.2d 315, 285 Ga. 157, 2009 Fulton County D. Rep. 773, 2009 Ga. LEXIS 85
CourtSupreme Court of Georgia
DecidedMarch 9, 2009
DocketS09A0119
StatusPublished
Cited by12 cases

This text of 674 S.E.2d 315 (Moore v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moore v. State, 674 S.E.2d 315, 285 Ga. 157, 2009 Fulton County D. Rep. 773, 2009 Ga. LEXIS 85 (Ga. 2009).

Opinions

MELTON, Justice.

Following a bench trial, Craig Michael Moore appeals his conviction for the aggravated assault and murder of Jeffrey Stephenson, contending that the trial court erred by allowing both a handgun and a ,9mm bullet into evidence without proof of an appropriate chain of custody.1 For the reasons set forth below, we affirm.

1. Viewed in the light most favorable to the verdict, the record shows that, at approximately 3:00 a.m. on July 25, 2002, Moore entered a convenience store he often frequented and walked to the refrigerator where the beers were kept. This refrigerator was located at the farthest end of the store from the cash register. At the refrigerator, Moore placed a beer into his pants, intending to steal it. According to Moore, Stephenson, the clerk on duty, then confronted him at the far end of the store by the refrigerator. There, Stephenson grabbed Moore’s shirt and warned him not to steal.2 Stephenson also threatened to call the police. At that point in time at the far end of the store by the refrigerator, Moore pulled a gun on the victim and pointed it at him, completing the crime of aggravated assault by pointing a gun. Then, Stephenson crossed back across the store to the cash register, presumably to use the phone located there to call the police. Moore apparently followed Stephenson. Moore then shot Stephenson three times. The medical examiner determined that Stephenson’s death was the result of multiple gunshot wounds which occurred in a brief period of time. Furthermore, investigation showed that money was stolen from the cash register, and five bullet casings were recovered from the scene. Forensic testing proved that the bullets were fired from a Glock pistol which Moore had possessed and sold shortly after the murder.3 A search of Moore’s home revealed an additional intact cartridge matching the type of ammu[158]*158nition fired from the murder weapon, and forensic testing showed that the cartridge had previously been chambered in the murder weapon. In addition, police recovered a pair of Moore’s tennis shoes, and blood spatters on the shoes were determined by DNA testing to be Stephenson’s blood. Upon questioning, Moore confessed to his crimes.

This evidence was sufficient to enable the trial court to determine that Moore was guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Griffin v. State, 280 Ga. 683 (631 SE2d 671) (2006) (evidence sufficient to find aggravating circumstances under OCGA § 17-10-30 (b)).

2. Moore contends that his convictions must be reversed because the State failed to properly prove a chain of custody for both the murder weapon and the single cartridge found at his residence. This contention is meritless. With regard to Moore’s objection relating to the murder weapon, the record shows that at the time the weapon was admitted into evidence, Moore objected only to its relevance. He waited until the cartridge was admitted into evidence to try to object to the weapon’s chain of custody. Because Moore failed to raise an objection to the weapon’s chain of custody at the time that it was admitted, he waived his right to revisit this issue on appeal. See Martin v. State, 281 Ga. 778 (2) (642 SE2d 837) (2007). Even if Moore had preserved this issue, however, both the gun and the cartridge “were distinct and recognizable physical objects which could be identified upon observation, obviating the necessity of a chain of custody showing.” Baker v. State, 250 Ga. 671, 672 (1) (300 SE2d 511) (1983). See also Cobb v. State, 244 Ga. 344 (11) (260 SE2d 60) (1979). “Furthermore, having reviewed the record, we conclude the State established with reasonable certainty that the [gun and casing] introduced into evidence were the same ones [recovered earlier] and had not been tampered with or replaced.” (Footnote omitted.) Kempson v. State, 278 Ga. 285, 286-287 (3) (602 SE2d 587) (2004). Moreover, even if there had been error in admitting the evidence about which Moore complains, the error would be harmless given the overwhelming nature of the case against Moore, including his confession to the crime. See Crosby v. State, 259 Ga. 822 (3) (a) (389 SE2d 207) (1990).

3. Contrary to the dissent, Moore’s conviction for aggravated assault does not merge into his conviction for murder as a matter of fact. It is fundamental that

this Court does not reweigh the evidence, resolve conflicts in testimony, or judge the credibility of witnesses when evaluating the sufficiency of evidence on appeal. Instead, we [159]*159review the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

(Footnotes omitted.) Roop v. State, 279 Ga. 183 (1) (611 SE2d 34) (2005).

Properly viewed in this light, the facts of this case support the trial court’s decision not to merge Moore’s convictions for aggravated assault and murder.4 In his taped confession, Moore expressly states that, while he was attempting to steal a beer on the far side of the store near the refrigerator, Stephenson walked over to that refrigerator to confront him. During trial, Moore’s trial counsel questioned the officer who took Moore’s confession extensively, and, on the record, both the officer who took the confession and Moore’s trial counsel interpreted part of Moore’s confession as stating that Moore initially pulled his gun on Stephenson in the store by the refrigerators, not as part of the shooting behind the cash register.5

Under these facts, the aggravated assault and the murder do not merge as a matter of fact. To the contrary, the evidence would support a finding that this case involves an interval between completed crimes, as in Stockford v. State, 276 Ga. 241 (575 SE2d 889) (2003). There, we held:

Unlike the cases involving merger based on a rapid succession of shots, the evidence in this case showed two distinct sets of shots separated by the victim’s attempt to run away. Because the State used different evidence to prove the two crimes and showed that [the defendant] completed the aggravated assault before firing the three shots that caused [the victim’s] death, we conclude that the trial court had authority to enter a separate judgment of conviction and sentence for the aggravated assault.

Id. at 243 (3). Here, based on the evidence, the trier of fact had the authority to conclude that an aggravated assault was completed on one side of the convenience store before the shooting and murder occurred on the opposite side of the convenience store. Id. See also Lowe v. State, 267 Ga. 410 (1) (b) (478 SE2d 762) (1996); Drane v. State, 265 Ga. 255 (9) (455 SE2d 27) (1995); Grace v. State, 262 Ga. [160]*160746 (425 SE2d 865) (1993).

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Moore v. State
674 S.E.2d 315 (Supreme Court of Georgia, 2009)

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Bluebook (online)
674 S.E.2d 315, 285 Ga. 157, 2009 Fulton County D. Rep. 773, 2009 Ga. LEXIS 85, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-state-ga-2009.