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MANHERTZ v. STATE
734 S.E.2d 406 (2012)
Court of Appeals of Georgia.
October 9, 2012.
recognized a narrow exception to this principle, by holding that when a facially, powerfully incriminating statement of a non-testifying co-defendant is presented to the jury, the risk is so great the jury will ignore the limiting instruction and consider the co-defendant's confession against the defendant that the general rule cannot be followed.13 Accordingly, our Supreme Court has held that "the introduction of such statements, even with a limiting instruction, violates the defendant's right of confrontation."14 In contrast to the "powerfully incriminating statements of a co-defendant" at issue in Bruton, the Supreme Court of the United States in Richardson v. Marsh15 held that "when a co-defendant's statement does not directly incriminate the defendant and the jury is required to draw inferences to connect the statement to the defendant, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence."16 Our Supreme Court has, therefore, held that Bruton only "excludes statements by a non-testifying co-defendant that directly inculpate the defendant, and that Bruton is not violated if a co-defendant's statement does not incriminate the defendant on its face and only becomes incriminating when linked with other evidence introduced at trial."17 Here, Joyner's statement did not clearly inculpate Manhertz. In fact, at the beginning of the interview, Joyner told the investigator that she did not recognize Manhertz's name or his photograph. And while Joyner's statement did implicate the person named "Kane" in the identity-fraud scheme, there was no direct evidence that Kane and Manhertz are the same person. Indeed, Joyner's mention of the name Kane only became incriminating when linked with other evidence introduced at trial. Thus, Joyner's statement did not violate Bruton.18 Given the foregoing circumstances, and the fact that the trial court instructed the jury that Joyner's statement was only to be considered against her, if Manhertz's trial counsel had objected to the statement on Bruton grounds, that objection would have been wholly lacking in merit.19 And as we have
repeatedly held, the failure to "pursue a futile objection does not amount to ineffective assistance."20 Accordingly, Manhertz failed to show that his trial counsel provided ineffective assistance. 2. Joyner contends that the evidence was insufficient to prove beyond a reasonable doubt that she was a party to the crime of identity fraud in Henry County. In essence, Joyner argues that although she could have been tried on identity-fraud charges in DeKalb County, where the victims resided, because she did not have any connection to Manhertz and did not possess the victims' identifying information outside of DeKalb County, the evidence was insufficient to prove that she committed identity fraud in Henry County. This argument is a nonstarter. At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.21 In evaluating the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility, but "only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt."22 Accordingly, a jury's verdict will be upheld "[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case...."23 Under OCGA § 16-9-121, "[a] person commits the offense of identity fraud when he or she willfully and fraudulently [w]ithout authorization or consent, uses or possesses with intent to fraudulently use identifying information concerning a person...."24 As used in the financial-identity-fraud statutes, the term "identifying information" includes current names, social-security numbers, driver's-license numbers, and birth dates.25 And with regard to venue, the Georgia Constitution and our statutory law require that a criminal defendant must be tried in the county in which the alleged crime was committed.26 However, under the financial-identity-fraud statutes, a "crime will be considered to have been committed in any county where the person whose means of identification or financial information was appropriated resides or is found, or in any county in which any other part of the offense took place, regardless of whether the defendant was ever actually in such county."27
2. John Milton, Paradise Lost 234, bk. IX, ll. 249 (G. Routledge and sons ed. 1905) (1674).
3. See OCGA § 16-9-121(a)(1).
4. See OCGA § 16-10-25.
5. See OCGA § 40-5-20(a).
6. Two of the identity-fraud counts were dismissed because the victims currently resided outside the State and could not attend the trial.
7. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
12. Id. (punctuation omitted).
13. Id. (citation and punctuation omitted); see Richardson v. Marsh, 481 U.S. 200, 207(II), 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987); Bruton, 391 U.S. at 135-36, 88 S.Ct. 1620.
14. Moss, 275 Ga. at 98(2), 561 S.E.2d 382; see Bruton, 391 U.S. at 135-36, 88 S.Ct. 1620.
16. Moss, 275 Ga. at 98(2), 561 S.E.2d 382 (punctuation omitted); see Richardson, 481 U.S. at 208, 107 S.Ct. 1702.
17. Moss, 275 Ga. at 98(2), 561 S.E.2d 382; see Thomas v. State, 268 Ga. 135, 137-38(6), 485 S.E.2d 783 (1997) ("For the admission of a co-defendant's statements to constitute a Bruton violation the statements standing alone must clearly inculpate the defendant." (punctuation omitted)); Garlington v. State, 268 Ga.App. 264, 267-68(1)(a), 601 S.E.2d 793 (2004).
18. See Moss, 275 Ga. at 99(2), 561 S.E.2d 382 (holding that admission of non-testifying co-defendant's statement to police that murder defendant came to his apartment and went in bathroom and stayed there for awhile did not violate Bruton rule because statement, standing alone, did not clearly incriminate defendant but only became incriminating when linked with other evidence); Thomas, 268 Ga. at 137-38(6), 485 S.E.2d 783 (holding that co-defendant's statement, that at time of defendant's arrest for kidnapping, which was unrelated to shootings for which defendant was now on trial, defendant had a pistol, which he had bought, did not clearly inculpate defendant and, thus, did not constitute Bruton error).
19. Although in this appeal, Manhertz argues that his trial counsel rendered ineffective assistance by failing to make a Bruton objection to Joyner's statement, an objection solely on hearsay grounds would have similarly lacked merit. See Munsford v. State, 235 Ga. 38, 43-44, 218 S.E.2d 792 (1975) (holding that when the testimony relating each of the statements by co-defendants was admissible against at least one of the co-defendants, the statements were not rendered inadmissible because each statement would be hearsay as to the other two defendants).
24. OCGA § 16-9-121(a)(1).
25. OCGA §§ 16-9-120(4)(A), (B), (C), (L).
26. See Ga. Const. 1983, Art. VI, Sec. II, Par. VI; OCGA § 17-2-2(a).
27. OCGA § 16-9-125.
28. OCGA § 16-2-20(a).
29. OCGA § 16-2-20(b)(3).
30. Kilgore v. State, 251 Ga. 291, 299(3)(c), 305 S.E.2d 82 (1983).
32. See OCGA § 16-9-125.
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