Cross v. State

FINAL COPY

                  S20A0717. CROSS v. THE STATE.


      NAHMIAS, Presiding Justice.

      Appellant Brandon Cross was convicted in 2003 of malice

murder and other crimes in connection with the death of Debra

Hymer. On appeal, he contends that the trial court erred by

declining to allow him to impeach the hearsay statements of his co-

conspirator Jessica Cates, by failing to charge the jury as to the

burden of proof for co-conspirator statements, and by admitting

three autopsy photographs and a video recording of the crime scene.

He also argues that he should be granted a new trial because the

record is insufficiently complete. As explained below, we affirm.1


      1 The crimes occurred on January 26, 2002. On July 31, 2002, a Hall

County grand jury indicted Appellant and Cates for malice murder, two counts
of felony murder, aggravated assault, burglary, and concealing the death of
Hymer; Cates was also charged with making false statements. Cates pled
guilty to conspiracy to commit murder and other crimes. Appellant was then
tried alone from March 10 to 17, 2003; the jury found him guilty of all counts.
In April 2003, the trial court sentenced Appellant to serve life in prison for
malice murder and consecutive terms of 20 years each for burglary and
concealing Hymer’s death. The court purported to merge the felony murder
      1. Viewed in the light most favorable to the verdicts, the

evidence presented at trial showed the following. In early January

2002, Appellant, who was 18 years old, lived in Hymer’s house in

Hall County with Hymer and 18-year-old Cates, whom Appellant

was dating.2 About three weeks before Hymer was killed, Appellant

got into an argument with her, and she told Appellant to move out.

Appellant moved out but would return to the house when Hymer

was not there.

      On the night of January 26, Junior Adams, who did not know

Hymer, was driving on a highway near Lula, Georgia, when he saw

her standing on the shoulder of the highway crying. Adams stopped

to ask if she needed help; Hymer asked him to give her a ride home,

and he agreed. Hymer then asked Adams to come inside her house

to help build a fire in her wood stove, and he agreed. When they got


counts into the malice murder conviction, but those counts were actually
vacated by operation of law, see Johnson v. State, 

 (

) (2012); the aggravated assault count merged. The lengthy post-trial
proceedings in Appellant’s case are detailed in Division 5 (a) below. His current
appeal was docketed in this Court to the April 2020 term and submitted for a
decision on the briefs.
      2 Two witnesses testified that Cates called Hymer “mom,” but Appellant

has advised that Cates and Hymer were not related by blood.
inside, Cates came out of her bedroom and started arguing with

Hymer. Cates was wearing pajama pants with a drawstring. During

the argument, Cates received a phone call and then asked Adams if

he would take her to pick up a friend at a restaurant in Gainesville;

he agreed. As he was leaving with Cates, Hymer called her a “b*tch”

and a “sl*t,” and said, “Don’t come back. You are not welcome here

anymore.” When Cates and Adams arrived at the restaurant, her

friend was not there, so Adams drove Cates back home, dropped her

off at the end of the driveway, and left around midnight.

      Three days later, on January 29, Cates called her best friend

Kay Ivester. Cates was crying and upset, and she told Ivester that

Appellant had left to go to Michigan.3 Cates then told Ivester the

following. On the night of January 26, when Cates returned home

from the Gainesville restaurant, Hymer had locked her and

Appellant outside, where it was raining and cold. Appellant said,




      3 It appears from the record that Appellant was arrested on unrelated

charges and extradited to Michigan, where he was booked into jail and made
the calls discussed below, but evidence of those proceedings was not presented
to the jury.
“[W]ell, we have got to do something about it.” Cates and Appellant

then went inside and got into a fight with Hymer, and Appellant

strangled Hymer and beat her head into the floor, killing her. Cates

cleaned up Hymer’s blood, burned her clothes, and helped dispose of

her body on the property.

     A few days later, Cates called Ivester again and told her that

Hymer had been found and that she was joking about what she told

Ivester before. When Ivester later learned that Hymer had not

actually been found, she placed an anonymous phone call to the Hall

County Sheriff’s Office and relayed to an officer what Cates told her

about Hymer’s killing, which led to an investigation.

     While Appellant was in Michigan, he and Cates had a series of

phone conversations, audio recordings of which were played for the

jury at his trial, in which they discussed their belief that Ivester

placed the anonymous phone call to the investigators, and Appellant

said that Ivester had reported most of the details about Hymer’s

killing correctly. They also discussed a false alibi for Appellant that

Cates had given to the investigators. In one call, Cates said that
investigators had been at Hymer’s house but left; Appellant replied,

“I was about to start part two of this killing spree.” In another call,

Cates told Appellant that investigators were searching the property,

and Appellant said, “I don’t think they’re gonna go way back there,

and they’re gonna start walking, and they’re gonna be like f**k this.

. . . That’s a lot of acreage.”

     On February 6, eleven days after Hymer was killed,

investigators searched her house and the surrounding property. In

the house, they found Hymer’s empty purse in a cabinet beside the

wood stove. On the property, they found among other things a

broken wheelbarrow and a mop. There were blood stains on the

carpet in Hymer’s living room, and the mop later tested positive for

the presence of blood. On February 8, investigators found Hymer’s

body covered with dirt, leaves, and sticks in a mineshaft opening in

the woods behind her house. The medical examiner who performed

Hymer’s autopsy on Feburary 9 said that she died either from

strangulation or blunt force head trauma. Her head had been struck

so hard that she had bled into her sinus cavities.
     Appellant was interviewed by the Hall County investigators in

Michigan on February 8 and 9. The interviews were audio recorded

and played for the jury at trial. After initially blaming Hymer’s

husband for her death, Appellant gave the following account of the

night of her killing. Appellant and Cates were sitting in her bedroom

when he saw a car pull into the driveway, so he jumped out a window

and hid in the woods behind the house. Sometime later, after he had

moved to an outbuilding closer to the house, he saw Cates walking

up the driveway alone, so he whistled at her to get her attention.

Cates went into the outbuilding, told Appellant about the argument

that she had with Hymer, and said, “You’re gonna have to kill her,

that’s the only thing we can do. It’s either that or just stand out here

and freeze, . . . either her or us.” Appellant ultimately agreed, and

he and Cates decided that he would use the drawstring on Cates’s

pajama pants to strangle Hymer.

     Appellant and Cates walked up to the house. Cates knocked on

the front door, which Hymer opened, and Cates walked inside and

began to argue with her. Appellant, who was not initially visible to
Hymer, then walked into the house; Hymer looked at him and said,

“Get the f**k out of my house.” Cates said, “Do it,” and Appellant

strangled Hymer to death with the drawstring while Cates watched

and smoked a cigarette. When Appellant let go of the string, Hymer

fell and hit her head on the floor, and her head started bleeding, but

Appellant claimed that he did not bash her head on the floor or

otherwise strike her.

     Appellant and Cates then wrapped Hymer in a sheet, carried

her body outside, and placed her in a wheelbarrow. Appellant tried

to roll the wheelbarrow into the woods, but it was broken, so he

pulled Hymer’s body out and threw the wheelbarrow down an

embankment. Appellant and Cates then dragged the body to a trail

in the woods behind the house and left her there; while they were

dragging Hymer, her shirt came off.

     Appellant and Cates returned to the house, and Cates emptied

Hymer’s purse and burned the contents, along with Hymer’s shirt

and the sheet in which they had wrapped her body, in the wood

stove. Appellant and Cates went back outside and continued
dragging Hymer’s body to the opening of an abandoned mineshaft.

Appellant threw the body into the opening and covered Hymer with

dirt, leaves, and sticks. Appellant and Cates then walked back to the

house, where Cates cleaned up Hymer’s blood using a mop. The next

day, Appellant and Cates went back to Hymer’s burial site and

added more dirt, leaves, and sticks over her body.

     During the interviews, Appellant accurately described the

items the investigators found at the crime scene, and he drew a

diagram of the property showing where he and Cates had disposed

of the items that matched what the investigators had found.

Investigators also seized the shoes that Appellant was wearing on

the night of Hymer’s killing; blood on the shoes was later identified

as Hymer’s.

     Appellant does not dispute the legal sufficiency of the evidence

supporting his convictions. Nevertheless, we have reviewed the

record and conclude that, when viewed in the light most favorable

to the verdicts, the evidence presented at trial and summarized

above was sufficient to authorize a rational jury to find Appellant
guilty beyond a reasonable doubt of the crimes of which he was

convicted. See Jackson v. Virginia, 

 (

,

61 LE2d 560) (1979). See also Vega v. State, 

 (

) (2009) (“‘It was for the jury to determine the credibility of the

witnesses and to resolve any conflicts or inconsistencies in the

evidence.’” (citation omitted)).4

      2. Appellant first contends that the trial court abused its

discretion by declining to allow him to impeach Cates’s hearsay

statements to Ivester with other, inconsistent hearsay statements

that she later made to an investigator and with the plea bargain

that she later made with the State. At trial, Appellant argued that

Cates’s statements to the investigator were admissible as co-

conspirator statements under former OCGA § 24-3-5,5 and he asked



      4 We remind litigants that this Court will end its practice of considering

the sufficiency of the evidence sua sponte in non-death penalty cases with cases
docketed to the term of court that begins in December 2020. See Davenport v.
State, 

 (

) (2020). This Court began assigning cases
to the December Term on August 3, 2020.
      5 Appellant’s trial was held in 2003, long before the current Evidence

Code took effect in 2013. Former OCGA § 24-3-5 said, “After the fact of
conspiracy is proved, the declarations by any one of the conspirators during the
pendency of the criminal project shall be admissible against all.”
the court if her plea bargain could be used to impeach her if she

testified. The trial court ruled that the statements were not

admissible under OCGA § 24-3-5, and Cates invoked her right

against self-incrimination, so she did not testify. Appellant never

argued at trial that Cates’s statements to the investigator or her

plea bargain should be admitted to impeach her hearsay statements

to Ivester, and thus the trial court did not rule on the admissibility

of the statements or the plea bargain for that purpose.

     Under the old Evidence Code, to preserve for any sort of review

on appeal a claim that the trial court improperly excluded hearsay

evidence under a particular theory, a defendant had to argue at trial

that the evidence was admissible under that theory. See Brown v.

State, 

 (

) (2014); Bridges v. State, 

 (

) (2003). Compare OCGA § 24-1-

103 (d) (providing for plain error review of unpreserved evidentiary

objections under the current Evidence Code). Under the old

Evidence Code (and the current Code), the prior inconsistent

statements of a testifying witness were admissible as both
substantive and impeachment evidence, but prior inconsistent

statements of a hearsay declarant who did not testify were “‘limited

in value only to impeachment purposes’” and warranted “a limiting

instruction to the jury on that restrictive use.” Esprit v. State, 

 (

) (2019) (citation and punctuation omitted).

     Appellant argued at trial that Cates’s statements to the

investigator were admissible under the co-conspirator hearsay

exception (which would have allowed the jury to consider them as

substantive evidence), but he does not pursue that argument on

appeal. Appellant never argued at trial that the statements at issue

were admissible to impeach Cates’s hearsay statements to Ivester

(which would have allowed the jury to consider them only to impeach

Cates as a hearsay declarant), nor did Appellant argue that Cates’s

plea bargain was admissible to impeach her statements to Ivester.

Accordingly, Appellant forfeited review of this claim. See Brown, 

.

     3. Appellant next contends that the trial court erred by failing

to instruct the jury as to the burden of proof for its consideration of
co-conspirator hearsay statements after the court admitted Cates’s

statements to Ivester. However, Appellant did not object at trial to

the court not charging the jury on this point, and he therefore

forfeited this claim too. See Norman v. State, 

, 641 & n.4

(

) (2018) (explaining that this Court does not conduct

even plain error review of jury instruction claims that were not

properly raised at trial when the trial occurred before the July 1,

2007 effective date of OCGA § 17-8-58 (b)).6

      4. Appellant contends that the trial court abused its discretion

by admitting three post-incision autopsy photographs and a video

recording of the crime scene.7 We disagree.



      6 In his reply brief, Appellant argues that his trial counsel’s failure to

preserve this claim constitutes ineffective assistance of counsel. But where a
claim of ineffective assistance of trial counsel was not raised at the earliest
practicable moment, it is not preserved for appellate review. See Elkins v.
State, 

 (

) (2019). Appellant’s initial motion for
new trial raised only the general grounds. With new counsel, Appellant filed
an amended motion raising several ineffective assistance claims, but not a
claim that his trial counsel was ineffective for not objecting to the co-conspirator hearsay instruction. Appellant’s new counsel did not argue such a
claim at the hearing on the motion, and the trial court summarily denied the
motion for new trial. Accordingly, this belated claim of ineffective assistance of
trial counsel was waived. See 

.
       7 In his principal brief, Appellant argued that other, pre-incision autopsy
     (a) Before the medical examiner testified at Appellant’s trial,

the court heard a proffer from him regarding a number of autopsy

photos of Hymer’s body, including three that were taken post-

incision. The medical examiner testified that those three photos

showed Hymer’s internal head and neck injuries, would be helpful

in explaining her injuries to the jury, and were necessary to show

the extent of her internal injuries because the decomposition of her

body obscured injuries that might otherwise have been visible

externally. The prosecutor also pointed out that the photos tended

to disprove Appellant’s claim that he did not injure Hymer’s head.

The trial court ruled that the autopsy photos were admissible, and

they were then admitted into evidence during the medical

examiner’s testimony to the jury.

     Under the old Evidence Code, post-incision autopsy photos

were admissible when “necessary to show some material fact which

becomes apparent only because of the autopsy.” Brown v. State, 250


photos were also erroneously admitted, but in his reply brief he concedes that
those photos were properly admitted.
Ga. 862, 867 (

) (1983).8 The medical examiner

explained that the three photos at issue showed the extent of

internal head and neck injuries that Hymer suffered that were not

apparent but for the autopsy. Accordingly, the trial court did not

abuse its discretion in admitting the photos. See, e.g., Spears v.

State, 

 (

) (2015); Bunnell v. State,

 (

) (2013).

     (b) The jury was also shown a large number of photographs

depicting Hymer’s home, the trail leading to where her body was

hidden, the burial site itself, and the state of her body when it was

discovered by investigators. Later, the State sought to admit a video

recording made after Hymer’s body was found. The first part of the

video showed Hymer’s burial site and her body in the condition that

it was discovered. The second part of the video, which was recorded

on the following day, showed Hymer’s home, the locations of the



     8 In Venturino v. State, 

 (

) (2019), we

held that Brown’s judge-made exclusionary rule was abrogated by the current
Evidence Code.
various items of evidence collected by investigators, and the trail

leading from the house to the burial site.9 Appellant’s counsel

objected, arguing that the recording was cumulative of the many

crime scene photographs already admitted into evidence without

objection and prejudicial because the videographer “zooms in, zooms

out several times,” and the video includes gruesome images of

Hymer at her burial site. The trial court overruled the objection, and

the video recording was then played for the jury.

      This Court repeatedly held under the old Evidence Code that

“[p]hotographs showing the condition and location of the victim’s

body are admissible where alterations to the body are due to the

combined forces of the murderer and the elements.” Klinect v. State,

 (

) (1998). See also Cohen v. State, 

 (

) (2002) (involving a crime scene video).

That is what the first part of the video showed: Hymer’s dead body




      9 The video is not in the record. However, the lead investigator described

the video while it was being played for the jury. And as explained below in
Division 5, the trial court concluded that a number of photos that are part of
the record are representative of what was depicted in the video.
as it was discovered by the investigators over two weeks after

Appellant and Cates concealed it. The second part of the video

showed the interior and exterior of Hymer’s house, along with the

location of various items of evidence relative to the house and to

Hymer’s body. See Wellons v. State, 

 (

)

(1995) (holding that a crime scene video was admissible where it was

“relevant to show the location of the body in relation to various

evidence and to the scene of the murder, the extent to which

[defendant] had concealed the body from view, and the relationship

of various items of evidence”). The trial court did not abuse its

discretion by admitting the video, even though it was duplicative of

the photographic evidence. See id.; Foster v. State, 

(

) (1988) (rejecting the argument that the trial court

abused its discretion by admitting a videotape of the crime scene

including the interior and exterior of the victim’s home, the path the

defendant took to the house, and the victim’s body, even though the

video was duplicative of photographs also admitted into evidence).

     5. Finally, Appellant argues that the record is not sufficiently
complete for this Court to review his convictions because trial

exhibits went missing and because he was not given the opportunity

to present to the trial court an affidavit from Cates’s cellmate

claiming that, after Appellant’s convictions, Cates confessed that he

had nothing to do with Hymer’s murder.

     (a) Appellant was sentenced in April 2003. He then filed a

timely motion for new trial, which was denied by the trial court on

February 2, 2005. On March 2, 2005, Appellant filed a motion for

reconsideration and requested an extension of time to file a notice of

appeal. He attached to the motion an affidavit from Cates’s cellmate,

also dated March 2, claiming that after his trial, Cates confessed to

the cellmate that she strangled Hymer with pajama strings, beat

her with brass knuckles, and bashed her head on the floor, and that

Appellant did not participate in the killing. Two days after filing the

motion, and before the trial court ruled on it, Appellant filed a notice

of appeal, but his counsel asked the trial court clerk by letter not to

transmit the record to this Court. Five days later, the trial court

denied the motion as moot. Over 13 years passed until September
2018, when Appellant’s current counsel requested that the record be

transmitted.10

     Appellant’s case was finally docketed in this Court in August

2019. However, at some point during the more than 16 years

between his trial and his appeal reaching this Court, some trial

exhibits went missing — namely, the video recording of Hymer’s

body and the crime scene and the original audio recordings of

Appellant’s phone calls with Cates and interviews with the

investigators. Appellant filed a motion in this Court asking that his

case be remanded to the trial court to “examine the performance of

his trial [counsel], seek admission of newly discovered evidence, and

seek a ruling as to . . . reconstructing missing parts of the trial

record.” In September 2019, this Court issued an order striking

Appellant’s case from the docket and remanding the case to the trial



     10 In July 2012, seven years after the notice of appeal was filed, Appellant

himself wrote a letter to the trial court saying that he had been unable to
contact his appellate counsel and asking the court to appoint new counsel.
There appears to have been no response. More than five years later, in
February 2018, Appellant filed a motion asking for information about the
status of his appeal and why he had not been appointed new counsel. Appellant
was finally appointed new counsel — his current counsel — in August 2018.
court “for the limited purpose of completing the record,” directing

the trial court “to hold a hearing to address Appellant’s claims

regarding the incompleteness of the record and to take whatever

actions may be necessary in this regard.”

     On remand, the trial court held a record-reconstruction

hearing, which was presided over by the same judge who presided

over Appellant’s trial; one of the prosecutors from the trial

represented the State at the hearing. The prosecutor tendered

transcripts of the complete calls between Appellant and Cates,

which he represented were accurate from his recollection, and CD

recordings of the portions of the calls that were played for the jury

at trial. The prosecutor also tendered complete CD recordings and

microcassette recordings of Appellant’s interviews with the

investigators, along with transcripts of the interviews. As to the

missing video recording, the prosecutor tendered 76 photographs

that were admitted at trial, and he represented that the photos

accurately showed what was on the video, noting that Appellant’s

trial counsel had argued during the trial that the video was
cumulative of the photos. Appellant’s current counsel noted that the

transcripts were not official and that none of the investigators or

other attorneys involved in the trial were called as witnesses, but he

did not object to the substitutions or offer any evidence suggesting

that the reconstructed exhibits were inaccurate or incomplete. The

trial court ruled that it would admit the substitute exhibits and

issue an order regarding whether they completed the record. There

was no mention during the hearing of Cates’s cellmate or her

affidavit.11

     In October 2019, the trial court entered an order ruling that

the State’s substitutions for the recordings of Appellant’s interviews

and phone calls “are representative of these missing exhibits . . .

[and] were admitted as substitutes for original missing exhibits

without objection.” As to the video recording, the court ruled that

“the State has represented and the [c]ourt through testimony at trial




     11 According to Appellant’s brief, at a non-transcribed calendar call for

the record-reconstruction hearing, the trial court denied his request to call
witnesses, including Cates’s cellmate, regarding the cellmate’s affidavit and
trial counsel’s performance.
finds that [the photos admitted at the record-reconstruction

hearing] are still photographs of the scene which essentially

represent in still form the missing video.” The trial court therefore

concluded that the “record is now as complete as possible for

appellate review.”

     (b) The trial court complied with the record-reconstruction

requirements of OCGA § 5-6-41 (f) and (g).12 The judge who presided

over Appellant’s trial presided over the record-reconstruction



     12 OCGA § 5-6-41 says in pertinent part:

                                          ...
            (f) Where any party contends that the transcript or record
     does not truly or fully disclose what transpired in the trial court
     and the parties are unable to agree thereon, the trial court shall
     set the matter down for a hearing with notice to both parties and
     resolve the difference so as to make the record conform to the truth.
     ...
            (g) Where a trial is not reported as referred to in subsections
     (b) and (c) of this Code section or where for any other reason the
     transcript of the proceedings is not obtainable and a transcript of
     evidence and proceedings is prepared from recollection, the
     agreement of the parties thereto or their counsel, entered thereon,
     shall entitle such transcript to be filed as a part of the record in
     the same manner and with the same binding effect as a transcript
     filed by the court reporter as referred to in subsection (e) of this
     Code section. In case of the inability of the parties to agree as to
     the correctness of such transcript, the decision of the trial judge
     thereon shall be final and not subject to review; and, if the trial
     judge is unable to recall what transpired, the judge shall enter an
     order stating that fact.
hearing, and the prosecutor from his trial represented at the hearing

that the admitted substitute exhibits accurately reflected the

missing trial exhibits, without objection or presentation of

conflicting evidence by Appellant. See Bamberg v. State, 

 (

) (2020); Mosley v. State, 

 (

) (2017). We conclude that the record is

sufficiently complete for appellate review. See Bamberg, 

.

       As for the affidavit of Cates’s cellmate, the trial court did not

consider that document in March 2005 because Appellant filed a

notice of appeal before the court addressed the motion for

reconsideration to which the affidavit was attached. See Moon v.

State, 

 (

) (2011) (explaining that the

appellant’s filing of a notice of appeal divested the trial court of

jurisdiction over his motion for reconsideration). And while

Appellant allegedly sought to call the cellmate as a witness

regarding the affidavit at the record-reconstruction hearing, see

footnote 11 above, this Court had directed that the hearing be held
solely for the purpose of completing the trial record, not to allow the

record to be reopened to consider evidence discovered after the trial.

The affidavit is properly not in the record as evidence, and it

presents nothing for this Court to review. See Graham v. Ault, 

 (

) (1996). See also Mitchum v. State, 

 (

) (2019) (“[T]he discovery of new evidence

that would be admissible at the defendant’s criminal trial and that

materially affects the question of the defendant’s guilt or innocence

is a proper subject of an extraordinary motion for new trial.”).

     Judgment affirmed. All the Justices concur.

                    DECIDED SEPTEMBER 8, 2020.

     Murder. Hall Superior Court. Before Judge Oliver.

     Matthew P. Cavedon, H. Bradford Morris, Jr., for appellant.

     Lee Darragh, District Attorney, Wanda L. Vance, Assistant

District Attorney; Christopher M. Carr, Attorney General, Patricia

B. Attaway Burton, Deputy Attorney General, Paula K. Smith,

Senior Assistant Attorney General, Ashleigh D. Headrick, Assistant

Attorney General, for appellee.