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Final Copy 290 Ga. 493 S11A1914. HILL v. THE STATE.

CARLEY, Presiding Justice. Benjamin Tinno Hill was indicted for the malice murder of Tommy Lee Head, an alternative count of felony murder during the commission of aggravated assault and possession of a firearm by a convicted felon, and a separate count charging the underlying weapons offense. After a jury trial, Hill was acquitted of malice murder and found guilty of both remaining counts. The trial court entered judgments of conviction on the guilty verdicts and sentenced Hill to life imprisonment for felony murder and to a consecutive five-year term for the separate firearms charge. Following the grant of an out-of-time appeal, a motion for new trial was denied. However, the trial court vacated the separate sentence on the weapons charge pursuant to a concession by the State. Hill appeals, understandably raising no error regarding the vacated sentence. See Dunn v. State, 263 Ga. 343, 345 (2) (434 SE2d 60) (1993).*

The murder occurred on February 5, 1993, and the grand jury returned an indictment on January 14, 1994. The jury found Hill guilty on January 11, 1995, and the trial court entered the judgments of conviction and sentences on
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1. Construed most strongly in support of the verdicts, the evidence shows that Hill, who was a convicted felon, was driving a vehicle carrying his infant son and Flora Shepherd when the victim began following them. Ms. Shepherd was the baby's mother and the victim's girlfriend. Hill became increasingly upset, indicating that he would lead the victim to some apartments and shoot him. Hill saw a patrol car and turned around to travel in the opposite direction. Hill stopped at a traffic light, and the unarmed victim exited his vehicle and approached Ms. Shepherd, angrily cursing at her, but kept his hands in his pockets and took no threatening action. The victim's demeanor changed and, as he began to get back into his car, he was shot in his pelvis. Ms. Shepherd turned to see Hill with a gun in his hand pointed across her and out the window. The victim drove away, crashed into a guardrail and bled to death from the gunshot wound. Meanwhile, Hill also drove away, told Ms. Shepherd twice that he hated that he shot the victim, and abandoned her and the baby with the car. the guilty verdicts on February 7, 1995. The trial court granted a motion for outof-time appeal on November 25, 2008, and a motion for new trial was filed on December 23, 2008 and amended on February 21, 2011. That motion was denied and the separate sentence for the weapons offense was vacated on May 24, 2011. Hill filed the notice of appeal on June 2, 2011. The case was docketed in this Court for the September 2011 term and submitted for decision on the briefs.
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Hill later asked Ms. Shepherd if she was going to tell on him. Nearly a year later, Hill was found in Texas living under an assumed name. Hill argues that no evidence was presented at trial that the person who was arrested and tried is the same as the person named in the indictment and identified by witnesses as someone named Benjamin Hill who shot and killed the victim. However, Hill could not be directly identified in person by any witness at trial, because after jury selection, he "voluntarily absented himself from his trial[.] [H]e should not be allowed to profit from this action by winning a reversal of the conviction because he was not there." Smith v. State, 184 Ga. App. 739, 741 (362 SE2d 384) (1987). Hill "made positive identification impossible by absenting himself from trial, and we decline to create a rigid legal standard for identification that would encourage defendants to violate their release conditions by failing to appear." State v. Rocha-Rocha, 935 P2d 870, 873 (1) (Ariz. App. 1996). In this case, Hill gave the arresting officer a statement admitting that he had shot the victim, Hill appeared in court for the first day of trial, and he never made identity an issue at trial, instead asserting self-defense. Accordingly, we conclude that Hill was sufficiently identified as the person who shot the victim and that there was ample evidence to enable a
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rational trier of fact to find Hill guilty beyond a reasonable doubt of felony murder. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 2. Hill contends that his right to be present at all stages of the trial was violated when trial counsel waived Hill's presence without his consent. "A defendant may waive his right to be present at trial ([cit.]), and his voluntary absence from the trial constitutes such a waiver. [Cit.]" Dawson v. State, 283 Ga. 315, 322 (5) (658 SE2d 755) (2008). Therefore, a waiver by defense counsel is not the only method by which the right to be present may be waived. On the morning of the second day of trial, Hill told his attorney by telephone that he had been involved in an automobile collision and would come with an incident report in 30 minutes. However, Hill did not ever arrive or offer any reasonable explanation. After a bonding company later surrendered Hill, he told the trial court at sentencing that he did everything within his power not to be right there before the court. In its order denying the motion for new trial, the trial court noted the absence of any evidence to support Hill's claim of an automobile collision and found that he had "voluntarily absented himself from trial after jeopardy attached."

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In this case the sequence of events surrounding [Hill's] absence supports the trial court's finding that [his] absence on the second and third days of trial was voluntary. "The burden of determining the cause of the defendant's absence was on [his] counsel, not on the trial judge." [Cit.] "[Hill] voluntarily absented [himself] from the court since [he] was free on bail and clearly knew the proceedings had begun . . . ." [Cits.] Estep v. State, 238 Ga. App. 170, 172 (1) (518 SE2d 176) (1999). "Confrontation rights are personal to the accused and are waived when the accused is free on bail and voluntarily absents himself from the trial. [Cits.]" Byrd v. Ricketts, 233 Ga. 779, 780 (213 SE2d 610) (1975). See also Taylor v. United States, 414 U. S. 17 (94 SC 194, 38 LE2d 174) (1973). 3. After Hill's arrest in Texas, he was advised of his Miranda rights and initially chose not to make a statement, but later made a statement which was not recorded. Defense counsel cross-examined the arresting officer regarding his failure to record the statement and the fact that his memorialization of that statement was not verbatim but was his interpretation of what Hill said. On redirect examination, the prosecutor asked the officer whether he had given Hill the opportunity to make a written statement and what his response was. The officer testified that he did give Hill that opportunity and that Hill did not want to sign a written statement or make a recorded statement but would nevertheless
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tell his story. A motion for mistrial was made by defense counsel and denied by the trial court. On appeal, Hill contends that the officer's testimony on redirect constitutes a prohibited comment on Hill's constitutional right to remain silent. This Court has held that a contention that a law enforcement officer improperly commented on the accused's right to remain silent by testifying that he refused to give or sign a written statement is inapposite where, as here, the accused waived his rights pursuant to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966) and made an oral statement. Bethea v. State, 251 Ga. 328, 330 (6) (304 SE2d 713) (1983). See also Moore v. State, 207 Ga. App. 802-803 (430 SE2d 115) (1993) (refusal to sign a waiver form or a confession does not constitute invocation of the right to remain silent). Likewise, "[c]ourts in other jurisdictions have held that a mere refusal to reduce an oral statement to a written statement does not amount to the invocation of the right to remain silent. [Cits.]" People v. Williams, 737 NW2d 797, 800 (Mich. App. 2007). See also Crosby v. State, 784 A2d 1102, 1110 (III) (Md. 2001). In Connecticut v. Barrett, 479 U. S. 523, 528 (107 SC 828, 93 LE2d 920) (1987), the Supreme Court reiterated that "(t)he fundamental purpose of the Court's decision in Miranda was `to assure that the individual's right to choose between speech and silence remain unfettered
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throughout the interrogation process.'" [Cit.] It is the choice between speech and silence that must remain unfettered, not the choice between different forms of speech. If, after proper advisement of Miranda rights, an accused states, "I'll talk to you, but I don't want my statement to be video/tape recorded" or "I'll give you a verbal statement, but I will not make a written statement," are we to conclude . . . that the accused has invoked his or her Miranda rights and as such, that the police are thereafter forbidden from questioning the accused? . . . Such a conclusion stretches the purposes of Miranda to illogical and irrational extremes. That the defendant chooses one form of speech over another does not necessarily signify, absent some additional evidence, that the defendant has chosen silence over speech. (Emphasis omitted in part.) Crosby v. State, supra at 1109-1110 (III). Furthermore, "(t)he accuracy and integrity of oral incriminating statements are frequent targets of defense counsel who often suggest the unfairness of the use of oral statements of an accused who has not been afforded the opportunity to put his statement in writing. It is only reasonable that the State be permitted to elicit the fact that the accused was given the opportunity and declined." San Martin v. State, 705 S2d 1337, 1346 (Fla. 1997). Accordingly, it is clear under the circumstances of this case that the officer's testimony did not constitute an impermissible comment on [Hill's] invocation of his right to silence. [Hill] did not invoke his right to silence. On the contrary he waived it, and after indicating that he would rather not put his statement in writing, [Hill] gave an oral statement. (Emphasis omitted.)

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People v. Hendricks, 687 NE2d 1328 (N.Y. 1997). Moreover, even if the officer's testimony could be considered a comment on Hill's invocation of the right to silence, defense counsel opened the door thereto, and the prosecutor was well within his rights to follow up on the cross-examination of the officer. See Fallen v. State, 191 Ga. App. 233 (381 SE2d 410) (1989). 4. Hill complains of two omissions from the trial court's jury instructions on felony murder. "Effective for trials conducted on or after July 1, 2007, [cit.], [OCGA

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