295 Ga. 190
FINAL COPY

                         S14A0168. GEIGER v. THE STATE.


       BENHAM, Justice.

       Appellant Richard Geiger was sentenced to life imprisonment for his

conviction for the felony murder of his live-in girlfriend, predicated upon

aggravated assault by stabbing, plus five years to serve consecutively for

possession of a knife during the commission of a felony.1 He appeals on the

ground that his arrest on his mother’s property, along with evidence seized at the

time of his arrest and statements made as a result of his arrest, should have been

suppressed. He also complains that prosecutorial misconduct required a

mistrial. For the reasons set forth below, we affirm.

       1. Viewed in the light most favorable to the verdict, the evidence


       1
          The crime occurred on March 6, 2007, and the Liberty County grand jury returned an
indictment on September 13, 2007, charging appellant with malice murder, felony murder
(aggravated assault by stabbing the victim with a knife), aggravated assault, and possession of a knife
during the commission of a felony. Appellant was tried May 6 and 7, 2010, and the jury found him
not guilty of malice murder but guilty of the other crimes charged. The trial court sentenced
appellant to life in prison for the felony murder conviction, to confinement for twenty years to be
served concurrently for the aggravated assault, and to confinement for a period of five years to be
served consecutively to the other sentences for the possession conviction. On May 28, 2010,
appellant filed a motion for new trial which was later amended. After a hearing, the trial court
denied appellant’s motion for new trial by order entered June 24, 2013. Appellant filed a timely
notice of appeal on July 1, 2013, and the case was docketed in this Court to the January 2014 term
for a decision to be made on the briefs.
presented at trial showed appellant lived with his girlfriend, victim Rosie Lee

Smith, at her apartment in Liberty County. She was married but had been living

apart from her husband, Larry Smith, for many years. On March 6, 2007, Mr.

Smith traveled from out of town to visit his wife at her residence. Upon

receiving notice that her husband was coming to visit, Mrs. Smith asked

appellant to pack his belongings and leave. While appellant was packing, he

pulled a concealed knife out of his sleeve and stabbed Mrs. Smith in the chest,

and she died at the scene. Mr. Smith was at the apartment when he heard a

thump and saw appellant running from the apartment. He found Mrs. Smith

sitting on the floor of the hallway closet with a stab wound and not moving.

That night, appellant admitted to a friend that he had stabbed Mrs. Smith, and

he ran off upon learning she had died. Two days later, law enforcement

obtained an arrest warrant for appellant and, based on information he had been

seen at his mother’s house, they drove to her Bulloch County home. As law

enforcement officers were pulling onto the mother’s property, they observed

appellant crossing a cotton field behind the home and they took him into

custody. Appellant waived his rights, made a full confession, admitted he

disposed of the knife he used to stab the victim, and told officers of its location.

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Authorities recovered the knife and submitted it to the GBI for testing. Blood

found on the knife matched that of Mrs. Smith. Appellant testified at trial and

stated he went to Mrs. Smith’s apartment on the day she was killed with a knife

concealed in his clothing. He admitted that he stabbed her with the intent to hurt

her because he was upset that she was making him leave, but stated he did not

intend to kill her. The evidence as described above was sufficient to authorize

a rational jury to find appellant guilty beyond a reasonable doubt of felony

murder. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d

560) (1979).2

       2. The arresting officers obtained a warrant for appellant’s arrest, had

reason to believe he was at his mother’s house, and were prepared to take him

into custody there if an arrest could be made. Appellant asserts, however, that

the warrantless entry onto his mother’s property to execute the arrest warrant

was illegal, and thus the trial court erred by denying his motion to suppress his

arrest, the evidence seized pursuant to his arrest, and the statements he made


       2
          As set forth in footnote 1, the trial court imposed a sentence of twenty years for the
aggravated assault conviction to be served concurrently with the life sentence for the felony murder
conviction. The conviction for aggravated assault merged as a matter of fact with the conviction for
felony murder, however, and thus the sentence for the aggravated assault conviction is vacated. See
OCGA § 16-1-7 (a); Nazario v. State, 293 Ga. 480 (746 SE2d 109) (2013).

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upon his arrest. Appellant makes no argument, nor could he, that merely

entering onto his mother’s property to knock and inquire of his whereabouts

required the authorities first to obtain a search warrant. Instead, his argument

is based upon appellant’s assumption that he was wrongly apprehended within

the curtilage of his mother’s home without a search warrant. In his motion to

suppress, citing Minnesota v. Olson, 495 U. S. 91 (II) (110 SCt 1684, 109 LE2d

85) (1990), appellant asserted he had standing to challenge the search. But in

Olsen, the United States Supreme Court held that the warrantless arrest of a

suspect after a warrantless entry into the home in which he was staying violated

the suspect’s Fourth Amendment rights, where neither consent to enter the home

nor exigent circumstances to justify a warrantless entry were shown. In this

case, however, the arresting officers had obtained a warrant for appellant’s

arrest. Assuming appellant was living at his mother’s home, then the arrest

warrant authorized entry to make the arrest. See Payton v. New York, 445 U. S.

573, 603 (100 SCt 1371, 63 LE2d 639) (1980) (“[F]or Fourth Amendment

purposes, an arrest warrant founded on probable cause implicitly carries with it

the limited authority to enter a dwelling in which the suspect lives when there

is reason to believe the suspect is within.”); United States v. Bervaldi, 226 F3d

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1256, 1262-1263 (II) (11th Cir. 2000); Carter v. State, 308 Ga. App. 686, 687-

688 (1) (708 SE2d 595) (2011). If, on the other hand, appellant was not living

in his mother’s home and was simply present or visiting there, he had no

standing to complain about a warrantless entry into the house or its curtilage, as

only those living in the home could challenge such a search. See Steagald v.

United States, 451 U. S. 204, 213-214 (101 SCt 1642, 68 LE2d 38) (1981)

(holding, in a challenge raised by a resident, that the police cannot enter a home

to execute an arrest warrant for a person not living there without a search

warrant, consent, or exigent circumstances). In either event, the evidence

presented at the motion to suppress hearing showed appellant was in plain view

of the officers who arrived at his mother’s residence for the lawful purpose of

determining whether he was present, and he was apprehended in the proverbial

“open field.” Several marked cars arrived at the residence at or about the same

time and one or more of the cars drove to the rear of the residence to secure it

while other officers planned to knock on the front door. The undisputed

testimony presented at the motion to suppress hearing established that even the

officers who drove to the front of the property to knock on the front door could

see appellant walking across the field near the house as their vehicles

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approached the house. For that reason, the officers drove their vehicles directly

to the field to prevent appellant from attempting to escape and to arrest him.

Applying a “clearly erroneous” standard of review, we find no error in the trial

court’s findings of fact with respect to appellant’s motion to suppress. See

Miller v. State, 288 Ga. 286, 286-287 (1) (702 SE2d 888) (2010).

      The United States Supreme Court has reaffirmed “that no expectation of

privacy legitimately attaches to open fields.” Oliver v. United States, 466 U. S.

170, 180 (III) (A) (104 SCt 1735, 80 LE2d 214) (1984) (finding no Fourth

Amendment violation when law enforcement officers, acting on a tip, arrived at

petitioner’s farm, drove past the house to a locked gate with a “no trespassing”

sign, walked around the gate to a footpath, and ultimately found a field of

marijuana in a highly secluded field on the property). That this open field was

behind the house and near a shed at the rear of the house does not establish it

was within the curtilage for purposes of Fourth Amendment protection, even if

appellant had standing to assert search protection. “At common law, the

curtilage is the area to which extends the intimate activity associated with the

sanctity of [the occupants’] home and the privacies of life.” (Citation and

punctuation omitted.) Id. at 180. A cotton field behind a house which is visible

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from the road cannot reasonably be deemed to be intimately associated with the

privacies of life in the home. Even an area that is within the curtilage does not

provide constitutional protection for activities that are conducted within plain

view of police observation. See California v. Ciraolo, 476 U. S. 207, 213 (II)

(106 SCt 1809, 90 LE2d 210) (1986). Appellant had no reasonable expectation

of privacy when walking across an open field in view of the road. Accordingly,

the trial court did not err in denying appellant’s motion to suppress his arrest or

any evidence seized during the arrest.

      3. On cross-examination, the prosecutor directed appellant’s attention to

the custodial statement he made to the arresting officers, which had been played

to the jury, that “he could never harm anybody.” The prosecutor then asked

appellant whether it was true, however, that the day before Mrs. Smith’s death

he had pulled a knife on a man that was her ex-boyfriend. The state had not laid

a proper foundation for presenting similar transaction evidence, and appellant’s

attorney objected and moved for mistrial on the ground that reference to this

alleged incident improperly placed appellant’s character into evidence. During

a conference outside the presence of the jury, the trial court instructed the

prosecutor to stay away from this evidence but denied the motion for mistrial.

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The trial court then instructed the jury to disregard the previous comment by the

prosecutor and ordered it to be stricken. The prosecutor then commenced

questioning appellant about whether his previous girlfriend had also asked him

to leave and asked whether his leaving was related to “something about her

stabbing you with a screwdriver?” Again, appellant’s counsel objected and

requested a mistrial. Outside the hearing of the jury, the trial court strongly

rebuked the prosecutor and instructed him to stay away from that kind of

evidence, but denied the motion for mistrial. Appellant’s counsel renewed the

motion for mistrial which again was denied, but, alternatively, counsel asked for

curative instructions. When the jury returned, no curative instructions were

given. Although appellant’s enumeration of error asserts the trial court erred by

failing to grant a mistrial for prosecutorial misconduct, he does not argue

entitlement to a mistrial in his brief, but argues the trial court’s failure to give

curative instructions and to rebuke counsel in the presence of the jury created

reversible error.3

       With respect to the first prosecutorial statement to which appellant raised



       3
          Appellant has abandoned his argument regarding the trial court’s denial of motion for
mistrial and therefore it will not be addressed.

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an objection, we agree that the record demonstrates the prosecutor violated

OCGA § 17-8-75 by making “statements of prejudicial matters which [were] not

in evidence . . . .” For the purpose of this analysis we will assume, without

deciding, that the second prosecutorial statement to which appellant raised an

objection, which referenced that the appellant, himself, was a victim of an

assault, was also an improper prejudicial statement by the prosecutor.

Accordingly, it was “the duty of the court to interpose and prevent the same.”

Id. Further, “[o]n objection made, the court shall also rebuke the counsel and

by all needful and proper instructions to the jury endeavor to remove the

improper impression from their minds; or, in his discretion, he may order a

mistrial if the prosecuting attorney is the offender.” Id. Once a defendant’s

counsel has raised an objection, OCGA § 17-8-75 imposes a duty upon the trial

court “to rebuke the prosecutor, give an appropriate curative instruction, or grant

a mistrial in the event that the prosecutor has injected into the case prejudicial

statements on matters outside of the evidence.” O’Neal v. State, 288 Ga. 219,

221 (1) (702 SE2d 288) (2010). Contrary to the state’s argument, once an

objection has been raised, a defendant does not waive appellate review of the

trial court’s failure to rebuke a prosecutor or give a curative instruction by

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failing to request a specific remedy. Id.

      In this case, however, the trial court’s error in failing to remedy the impact

of the prejudicial statements by the prosecutor, if any, was harmless. Given the

overwhelming evidence of appellant’s guilt, including his custodial confession,

we find it is highly probable that the trial court’s error, if any, did not contribute

to the verdict. See O’Neal, 288 Ga. at 222 (2) (applying a harmless error

analysis to the issue of the trial court’s failure to comply with the duty imposed

by OCGA § 17-9-75). Consequently, we find no reversible error.

      Judgment affirmed and sentence vacated in part. All the Justices concur.


                              Decided May 19, 2014.


      Murder. Liberty Superior Court. Before Judge Stewart.
      T. Mack Taylor, for appellant.
      Tom Durden, District Attorney, Melissa L. Poole, Russell B. Mabrey, Jr.,
Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant
Attorney General, Andrew G. Sims, Assistant Attorney General, for appellee.




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