                                  FIFTH DIVISION
                                 MCFADDEN, P. J.,
                              MCMILLIAN and GOSS, JJ.

                       NOTICE: Motions for reconsideration must be
                       physically received in our clerk’s office within ten
                       days of the date of decision to be deemed timely filed.
                                   http://www.gaappeals.us/rules


                                                                           May 6, 2019




In the Court of Appeals of Georgia
 A19A0414. JACKSON v. THE STATE.

      MCFADDEN, Presiding Judge.

      After a jury trial, Jimmie Jackson was convicted of robbery by intimidation. He

appeals, arguing that the trial court erred in allowing hearsay testimony in violation

of the Confrontation Clause of the Sixth Amendment. But even if the court erred, the

error was harmless in light of the overwhelming evidence of guilt. So we affirm.

      1. Facts and procedural posture.

      Jackson was indicted for armed robbery and aggravated assault, with both

counts of the indictment alleging that he had used a box cutter to commit the crimes

at a Waffle House restaurant. Jackson pled not guilty to the charges. The case was

tried before a jury.
      At trial, the state presented two Waffle House employees, who testified that on

July 18, 2014, Jackson entered the restaurant, held something in his hand that the

employees believed was a weapon, ordered that the cash register be opened, grabbed

money out of the register, and fled from the restaurant. One of the employees hid in

a bathroom and called 911 while the incident was in progress. Police officers

responded to the call, saw Jackson running from the scene, and apprehended him a

short distance from the restaurant. The officers searched Jackson and found, among

other things, that he had a box cutter and approximately $269 in cash. The Waffle

House employees were brought to the scene of the arrest and identified Jackson as the

robber.

      Jackson was taken to the police station, where he waived his Miranda1 rights

and gave a statement to a detective, admitting that he had robbed the Waffle House.

Jackson stated that he had gone into the restaurant, told the employees to open the

register, took money from the register, ran from the restaurant, was caught by police,

and had a box cutter in his pocket. The state played Jackson’s recorded admission and

security video of the incident for the jury.



      1
          Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

                                           2
      Sharika Astin, a Waffle House employee who was named in the indictment as

the victim of the alleged aggravated assault and one of the victims of the alleged

armed robbery, did not testify at trial. But over Jackson’s hearsay and confrontation

clause objections, the trial court allowed a police officer to testify about statements

Astin had made to him at the restaurant shortly after the incident. The officer testified

that Astin had told him, among other things, that a man came into the restaurant and

said that he was going to rob them, that he was holding a red object, and that she did

not know if it was a gun or a knife.

      The jury found Jackson not guilty of the aggravated assault charge, but was

unable to reach a unanimous verdict on the armed robbery charge, with three jurors

voting for guilt on the armed robbery charge and nine voting for guilt on the lesser

included offense of robbery by intimidation. Jackson and the state agreed to waive a

unanimous verdict and accept a non-unanimous verdict of guilty on robbery by

intimidation, and the trial court sanctioned that agreement.2 The court imposed a


      2
        “In Georgia, a criminal defendant can waive his right to a unanimous verdict.
Before such waiver can become effective, a defendant must give his express and
intelligent consent and obtain the government’s agreement and the sanction of the
trial court.” Johnson v. State, 277 Ga. App. 41, 47 (5) (d) (625 SE2d 411) (2005)
(citations and punctuation omitted). See also Glass v. State, 250 Ga. 736, 737-738 (1)
(300 SE2d 812) (1983).

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recidivist sentence of twenty years, ordering Jackson to serve seven years in

confinement and the remainder on probation. After the trial court denied Jackson’s

motion for a new trial, this appeal followed.

      2. Hearsay and confrontation clause.

      Jackson contends that the trial court erred in overruling his hearsay and

confrontation clause objections to the officer’s testimony about the out-of-court

statements of Waffle House employee Astin. But even if we assume, without

deciding, that the court erred in admitting the testimony, any error was harmless.

      When hearsay evidence is erroneously admitted in violation of the

confrontation clause, such “[a]n error of constitutional magnitude can be harmless

when the evidence at issue is cumulative of other properly admitted evidence or when

the evidence against the defendant is overwhelming.” Yarber v. State, 337 Ga. App.

40, 44-45 (785 SE2d 677) (2016) (citations and punctuation omitted). Accord Miller

v. State, 289 Ga. 854, 857 (2) (717 SE2d 179) (2011). Here, the evidence of Jackson’s

guilt – including eyewitness identifications of him, video of the robbery, and his

recorded statement admitting the robbery – was overwhelming. Because the evidence

of guilt “was overwhelming, any error in admitting the [alleged hearsay] was

harmless beyond a reasonable doubt.” Yarber, supra at 46 (citations omitted). See

                                         4
also Dawson v. State, 300 Ga. 332, 335 (3) (794 SE2d 132) (2016) (assuming

admission of hearsay violated confrontation clause, the error was harmless beyond

a reasonable doubt in light of the overwhelming evidence of guilt); Hatley v. State,

290 Ga. 480, 485 (II) (722 SE2d 67) (2012) (any error in admitting hearsay

statements in violation of confrontation clause was harmless beyond a reasonable

doubt where there was overwhelming evidence of guilt); Warren v. State, 283 Ga. 42,

43 (2) (656 SE2d 803) (2008) (accord). Since any assumed error in this case was

harmless beyond a reasonable doubt, there is no basis for reversal. See Welch v. State,

318 Ga. App. 202, 206 (1) (733 SE2d 482) (2012).

      Judgment affirmed. McMillian and Goss, JJ., concur.




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