Preview:

Final Copy

288 Ga. 225

S10A1005. CANNON v. THE STATE.

CARLEY, Presiding Justice.

A jury returned verdicts finding Chas Clifford Cannon guilty of felony murder, aggravated assault, and possession of a firearm during the commission of a crime. The trial court entered judgments of conviction and sentenced Cannon to life imprisonment for the felony murder charge and a suspended consecutive five-year term for the weapons charge. The aggravated assault count merged into the felony murder conviction. Cannon appeals after the denial of a motion for new trial.* The crimes occurred on February 16, 2006, and the grand jury returned the indictment on May 26, 2006. The jury found Cannon guilty on November 14, 2006, and the trial court entered the judgments of conviction and sentences on November 21, 2006. The initial motion for new trial was filed on November 21, 2006, amended on November 15, 2007, and denied on December 31, 2007. Cannon filed the first notice of appeal on January 7, 2008. The case was originally docketed in this Court as Case Number S08A1539. On July 2, 2008, we granted a motion to remand the case so that new counsel could be appointed to pursue ineffectiveness claims against trial counsel. The ineffectiveness claims were argued on March 25, 2009, and subsequently denied
*

1. Construed most strongly in support of the verdicts, the evidence shows that on the night of the shooting, February 16, 2006, the victim went to the Travelodge hotel to meet with two women, Tonya Flemister and Brandy Clark. At one point, the two women accompanied the victim to the ATM, where he withdrew a large sum of money. When they returned to the hotel, the victim went to Ms. Clark's room in order to purchase drugs. Present in the room were Cannon and another man named Jay. After being informed that the victim had a large sum of money on him, Cannon followed the victim out of the room. Shortly thereafter, Cannon shot the victim once in the head and once in the chest. At least five people outside of the hotel at that time witnessed the shooting. After the shooting, Cannon went to an acquaintance's hotel room, visibly shaken. He said that he had just shot a man and, after pulling a gun out of his pocket, stated "I think he is dead." Cannon also said that the shooting occurred

on June 5, 2009. The trial court clerk's office transmitted the record to this Court, and, on January 11, 2010, we dismissed the case for lack of jurisdiction because Cannon failed to file a timely notice of appeal. A motion for out-oftime appeal was filed on January 20, 2010, and granted on January 21, 2010. Cannon filed a notice of appeal on January 25, 2010. The case was docketed in this Court for the April 2010 term, and submitted for decision on the briefs.
2

in the course of a robbery, that the victim had reached into his pocket, and that Cannon, thinking that the victim was reaching for a weapon, shot him twice. The victim's body was later found by the authorities along a fence in the parking lot of the Travelodge hotel. The evidence was sufficient for a rational trier of fact to find Cannon guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 2. Cannon contends that the trial court erred by prohibiting Cannon's father from testifying that, contrary to previous testimony by the arresting detective, Cannon did not make the statement "Is this about me shooting Old Boy" at the time of his arrest. He argues that the father's testimony concerning whether or not this statement was made was admissible for the purpose of impeaching the detective's testimony. However, a transcript of the trial reveals that defense counsel was allowed to question the father as to whether Cannon made any statements to the police as he was being arrested, and the father stated that Cannon made no statements. Furthermore, Cannon's father testified that his son responded in the negative when the arresting officer asked whether he knew why the police were at his house. Thus, Cannon was actually able to
3

present evidence that rebutted the detective's testimony that Cannon made an admission of guilt as he was being arrested. Therefore, [p]retermitting the question of whether the [proffered testimony] was admissible evidence, we find its exclusion harmless since [the father] later testified to virtually the same information. . . . "`(E)vidence wrongfully withheld is harmless where admissible evidence of the same fact is introduced.' [Cit.]" [Cit.] Ebenezer v. State, 191 Ga. App. 901, 902 (3) (383 SE2d 373) (1989). See also Nix v. State, 280 Ga. 141, 144 (4) (625 SE2d 746) (2006) (holding that the exclusion of inculpatory statements of a third party was harmless because the "excluded testimony was cumulative of other evidence introduced"). 3. Cannon contends that the trial court erred in denying his motion for mistrial after the State improperly impeached the defense's main witness, Cannon's father, by asking him if he was currently in jail. "A witness may be impeached in any one of the methods set forth in (OCGA

Download S10A1005. CANNON v. THE STATE.pdf

Georgia Law