HUEY v. STATE S93A1593.
263 Ga. 840 (1994)
439 S.E.2d 656
HUEY v. THE STATE.
Supreme Court of Georgia.
Reconsideration Denied February 25, 1994.
James G. Tunison, Jr., for appellant.
Johnnie L. Caldwell, Jr., District Attorney, William T. McBroom III, Assistant District Attorney, Michael J. Bowers, Attorney General, Matthew P. Stone, Staff Attorney, for appellee.
The appellant, Gerald Steven Huey, was convicted of the murder of Tim Kent and of the theft by taking of money belonging to a man named Carol Baggett. The trial court sentenced Huey to life in prison
1. In his seventh and eighth enumerations of error, Huey contends that the evidence was insufficient to support his convictions. We disagree. Reviewed in a light most favorable to the verdict, the evidence showed that Kent and Baggett camped outside of Huey's home on the night of March 16-17, 1991, and that Kent and Huey agreed to and did take $2,500 from Baggett that night while Baggett was sleeping and then divided the money equally between them. Moreover, the evidence would have authorized a rational trier of fact to conclude that during the following week Huey spent his share of the stolen money and then killed Kent to obtain his share as well. For these reasons, we conclude that the evidence was sufficient to support the convictions. Jackson v. Virginia, 443 U.S. 307 (99 S.C. 2781, 61 LE2d 560) (1979).
2. In his first enumeration of error, Huey contends that the trial court erred by permitting Kent's half-brother, Todd Blanton, to testify that on March 17, 1991, Kent told him that Kent and Huey had gotten a man drunk and, when the man passed out, had taken the man's money. Blanton added that Kent then showed him about $1,000 in 50- and 100-dollar bills. Huey contends that Blanton's testimony regarding what Kent told him was inadmissible hearsay. We do not agree. We conclude that Blanton's testimony was admissible under the co-conspirator exception to the hearsay rule, as the evidence adequately demonstrated a conspiracy between Kent and Huey and as Kent's statements to Blanton occurred during the concealment phase of the conspiracy. See OCGA § 24-3-5; Duffy v. State, 262 Ga. 249, 250-251 (416 S.E.2d 734) (1992); Hughes v. State, 257 Ga. 200, 202 (1) (357 S.E.2d 80) (1987).
3. In his second enumeration of error, Huey contends that there was a fatal variance between the theft by taking count of the indictment and the proof at trial, in that the indictment alleged only that Huey took the money from the victim whereas at trial the state's proof was that Huey entered a conspiracy with Kent to take Baggett's
4. In his fourth enumeration of error, Huey contends that the trial court erred by failing to grant his motion to suppress the fruits of a search of his property, his house, and his truck. We disagree. The evidence supplied to the magistrate provided her with the requisite probable cause to issue the search warrant in question. See Williams v. State, 251 Ga. 749, 792-795 (8) (a) (ii), (b) (ii) (312 S.E.2d 40) (1983). For this reason, the trial court did not err in denying the motion to suppress.
5. Huey next contends that the trial court erred by admitting photographs of the victim's mutilated body and severed head and hands during the guilt-innocence phase of the trial. Huey contends that the photographs were not relevant to any issue at the guilt-innocence phase, were particularly gruesome, and should have been excluded from evidence. We disagree. The photographs were relevant to the identity of the victim, to the cause of death, and to the issue whether Huey acted with malice in killing the victim, see Conklin v. State, 254 Ga. 558, 564, (1) (b) (331 S.E.2d 532) (1985) (butchery of victim after victim's death is relevant to malice). Though gruesome, we thus conclude that the introduction of the photographs was not erroneous. See Goss v. State, 255 Ga. 678, 680 (1) (341 S.E.2d 448) (1986); Stephens v. State, 259 Ga. 820, 821-822 (6) (388 S.E.2d 519) (1990).
6. In his sixth enumeration of error Huey contends that the trial court committed reversible error by allowing the chief bailiff to separate two jurors from the other jurors by taking them to jog three or four times at a local track. We disagree. In a capital case such as this one, a violation of the rule of sequestration normally raises a presumption of prejudice and the state has the burden to rebut that presumption.
Here, it appears that defense counsel consented to the two jurors going to run, and the record shows that Huey has not shown any harm as a result of the separation of the two jurors. Moreover, even assuming that defense counsel did not consent to the separation, we find that the state carried its burden of demonstrating that Huey did not suffer any harm. See Legare, supra, 243 Ga. at 752. For these reasons, we find this enumeration to be without merit.
7. In his ninth enumeration of error Huey contends that he did not receive effective assistance of counsel. However, Huey has failed to carry his burden of proving the prejudice prong of the ineffectiveness standard. See Johnson v. State, 262 Ga. 545 (1) (422 S.E.2d 659) (1992).
8. After oral arguments Huey filed a supplementary enumeration of error and brief contending that the admission of certain evidence was erroneous. This enumeration, however, is untimely and will not be considered. Trenor v. State, 252 Ga. 264, 267 (8) (313 S.E.2d 482) (1984); Cunningham v. State, 255 Ga. 727, 730 (4) (342 S.E.2d 299) (1986).
Judgment affirmed. All the Justices concur.
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