In the Supreme Court of Georgia



                                                        Decided: June 20, 2016


                     S16A0524. HICKMAN v. THE STATE.


       THOMPSON, Chief Justice.

       Appellant Marshae O’Brian Hickman was convicted of the attempted rape

and murder of Candice Parchment.1 He appeals, asserting, inter alia, the trial

court erred in joining these offenses for trial because they occurred several

months apart. Finding no error, we affirm.


       1
         The attempted rape was committed on January 5, 2010. The murder occurred on
April 28, 2010. Appellant was indicted on July 11, 2012, and charged with attempted rape,
false imprisonment, two counts of aggravated assault, and battery. In a second indictment
filed the same day, appellant was charged with malice murder, two counts of felony murder,
two counts of aggravated assault, and two counts of concealing the death of another. Trial
commenced on April 8, 2013, on both indictments. The jury returned its verdict on April 12,
2013. With the exception of one count of felony murder (as to which the jury concluded
appellant was guilty of involuntary manslaughter), the jury found appellant guilty of all
counts on both indictments. The trial court sentenced appellant on April 26, 2013, to life
without the possibility of parole for malice murder and ten years consecutive for concealing
the death of another, 30 years for attempted rape, 20 years for an aggravated assault
occurring on January 5, 2010, and10 years for false imprisonment, to be served concurrently
with the sentences imposed for malice murder and concealing the death of another. The
remaining counts were vacated and merged by operation of law. See Malcolm v. State, 263
Ga. 369 (434 SE2d 479) (1993). Appellant filed a motion for new trial on May 1, 2013. The
motion was denied on March 4, 2015. Appellant’s notice of appeal was filed on April 1,
2015. The case was docketed in this Court for the January 2016 term and submitted for
decision on the briefs.
       1. Viewed in a light favorable to the verdict, the evidence showed the

following: Appellant and the victim went to high school together, along with

Jermaine Robinson,2 a second assailant. Appellant and Robinson wanted to

have sex with the victim, who, unaware of their plans, went with appellant and

Robinson to an abandoned house in the victim’s neighborhood. Meanwhile, the

victim’s mother realized her daughter was missing and began searching for her.

       When appellant, Robinson and the victim entered the abandoned house,

appellant told Robinson to hit the victim in the head with a rake and choke her,

while appellant blocked the door to prevent her escape. Appellant groped the

victim while Robinson choked her and tried to hold her down on a mattress.

While the attack was taking place, the victim’s mother drove up to the

abandoned house. When appellant and Robinson saw the lights of the mother’s

car, they let the victim go. As the victim ran away, appellant threatened to kill

her if she told anyone what happened. The victim ran up to her mother’s car and

jumped in. She was “in a panic” and told her mother “somebody tried to rape

me,” but she managed to escape when the assailants saw the car approach the


       2
        Robinson pleaded guilty to attempting to rape the victim and testified at trial against
appellant.

                                              2
abandoned house. The mother urged the victim to go to the police, but she

refused to do so. The attack transpired on the evening of January 5, 2010.

      Subsequently, the victim told a close friend, Danny Jackson, about the

incident. Jackson approached Robinson and warned him to stay away from the

victim. When Robinson told appellant that the victim was telling others about

the attempted rape, appellant responded that Robinson should not worry about

the victim.

      Three months later, on April 28, 2010, the victim’s mother awoke to find

the victim missing. The mother telephoned the victim numerous times to no

avail. She contacted police to report the victim missing. Eventually, she

received two text messages, which were purportedly from the victim. The first

stated, “I am okay.” The second read, “I am in Tennessee.” The mother did not

believe the victim sent the texts.

      Several months passed. The mother continued the search effort for the

victim until November 2010, when the victim’s remains and clothing were

found under a mattress, behind a dumpster, in a nearby apartment complex.

Appellant lived in that complex.

      In October 2011, as she prepared to move to a new home, the mother

                                      3
found the victim’s diary.      An entry in the diary named “Marshae” and

“Jermaine” as the individuals who attempted to rape the victim. The mother

turned the diary over to police, and appellant, who was in jail at the time for

burglary, was interviewed by detectives on two separate occasions.

      During the interviews, appellant made statements implicating himself in

both the attempted rape and murder cases: He said the rape was Robinson’s idea;

he stood at the front door while Robinson and the victim fought inside the

abandoned house. Concerning the murder, appellant said that he saw the victim

the night before she went missing; that she was walking along a trail, which led

from his apartment complex to her subdivision; that he put his arm around her

and she “fell limp;” and that she did not have a pulse, so he covered her with a

mattress. Furthermore, he admitted that he found deep scratch marks on his arm

when he awoke the next morning.

      The evidence was sufficient to enable any rational trier of fact to find

appellant guilty beyond a reasonable doubt of the crimes for which he was

convicted. See Jackson v. Virginia, 443 U.S. 307(99 SCt 2781, 61 LE2d 560)

(1979); Morgan v. State, 290 Ga. 788, 790 (725 SE2d 255) (2012).

      2. Appellant asserts the trial court erred in joining the two indictments for

                                        4
trial. We disagree.

             In Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975), the
      Court of Appeals asked [pursuant to a certified question] whether
      severance is mandatory upon motion of defendant when two or
      more crimes of the same general nature are committed against
      different persons, at different times and places, and are charged in
      separate counts of an indictment. This Court answered
      affirmatively, noting that the right of severance where the offenses
      are joined solely on the ground that they are of the same or similar
      character is because of the great risk of prejudice from a joint
      disposition of unrelated charges. In so doing, this Court adopted
      the ABA Standards on Joinder of Offenses which provide:

      Whenever two or more offenses have been joined for trial solely on
      the ground that they are of the same or similar character, the
      defendant shall have a right to a severance of the offenses. The
      court, on application of the prosecuting attorney, or on application
      of the defendant other than under subsection (a), should grant a
      severance of offenses whenever: (I) if before trial, it is deemed
      appropriate to promote a fair determination of the defendant's guilt
      or innocence of each offense; or (ii) if during trial upon consent of
      the defendant, it is deemed necessary to achieve a fair determination
      of the defendant's guilt or innocence of each offense. The court
      should consider whether in view of the number of offenses charged
      and the complexity of the evidence to be offered, the trier of fact
      will be able to distinguish the evidence and apply the law
      intelligently as to each offense.

      Under these Standards, a trial court must first determine whether the
      offenses are joined solely because they are of the same or similar
      character. If they are, severance is mandatory. If they are not, the
      court must then decide whether severance would promote a just
      determination of guilt or innocence as to each offense.


                                       5
Stewart v. State, 277 Ga. 138, 138-139 (587 SE2d 602) (2003) (punctuation and

citations omitted).

      Inasmuch as the offenses were not joined solely because they were of the

same or similar character, severance was not mandatory, and it was incumbent

upon the trial court to determine whether severance was necessary to achieve a

fair determination of appellant’s guilt or innocence as to each offense. Id. The

trial court determined both pre-trial and, more explicitly, post-trial, that the jury

would be able to distinguish the evidence and apply the law intelligently to each

offense. See Green v. State, 279 Ga. 455, 457 (614 SE2d 751) (2005)

(permitting post-trial Stewart analysis of denial of severance). Given the

disparate nature of the offenses and the fact that they occurred months apart, it

cannot be said the trial court abused its discretion in making its determination.

See id. See also Phillips v. State, 238 Ga. 616, 618 (5) 234 SE2d 527 (1977).

      3. Appellant contends that the trial court erred by admitting his custodial

statements into evidence. As noted above, appellant was interviewed on two

separate occasions. The first interview took place on October 20, 2011; the

second interview occurred the next day. Before each interview, Detective

Ashley Melvin informed appellant of his Miranda rights. Using a printed form,

                                         6
the detective read appellant his rights, one at a time. It was Detective Melvin’s

practice to have a suspect initial each of the rights on the form to signify he

understood them.         Appellant initialed each of the rights on the form;

furthermore, he signed and dated the form as a whole. The detective testified

that appellant did not ask any questions about his rights and did not appear to

be confused or to have any trouble understanding them. He added that appellant

said he would not be talking with him if he did not want to do so.

      Appellant argues that the statements he made during the custodial

interviews were inadmissible because they were not made knowingly and

voluntarily. In this regard, appellant relies upon the expert opinion of Dr. Bruce

Frumkin, a forensic psychologist, who testified on appellant’s behalf at a

Jackson-Denno3 hearing.

      Dr. Frumkin met with appellant for more than five hours and administered

a battery of psychological tests to him. He concluded that appellant had an IQ

of 98 (near average) and a verbal comprehensive score of 91 (lower 27

percentile), and that compared to other criminal defendants these scores would

not indicate that he was “at risk for not understanding Miranda rights or not

      3
          Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

                                            7
being able to appreciate his Miranda rights.” Nonetheless, Dr. Frumkin, whose

specialties include competency to waive Miranda rights, opined that although

appellant knew he had a right to an attorney in the abstract, he was confused

about that right because he had “just finished his burglary charge” and “had just

seen his public defender,” when he was interviewed by Detective Melvin. In

addition, Dr. Frumkin said appellant did not understand what it meant when he

was informed that he could exercise his Miranda rights at any time.

      Appellant testified at the Jackson-Denno hearing and admitted: (1) that he

did not have any questions while Detective Melvin read the Miranda rights form

to him; (2) that Detective Melvin read these words to him at the end of the form:

“I’ve been advised of my rights and I understand each of those rights;” and (3)

that he signed the form. When asked if he actually understood his rights,

appellant answered, “I would say yes, but I was still confused on the part about

the attorney.”

      After weighing the evidence presented at the Jackson-Denno hearing, the

trial court determined appellant was advised of his rights, understood them, and

waived them voluntarily. See generally Currier v. State, 294 Ga. 392, 398 (754

SE2d 17) (2014) (burden is on the State to prove the voluntariness of a

                                        8
confession by preponderance of the evidence). Because these findings are not

clearly erroneous, they will not be disturbed on appeal. See Wright v. State, 285

Ga. 428, 431 (677 SE2d 82) (2009) (appellate court will not interfere with trial

court’s factual and credibility determinations following a Jackson-Denno

hearing unless they are clearly erroneous).4 See also Barrett v. State, 289 Ga.

197, 199 (709 SE2d 816) (2011) (“the fact that a defendant is of below average

intelligence or even has moderate mental retardation does not, in and of itself,

warrant the exclusion of defendant’s inculpatory statement; there must be

additional and sufficient evidence that the defendant did not have the capacity

to understand and knowingly waive his Miranda rights”).

       4. Appellant claims the trial court erred in admitting the victim’s diary

entries into evidence. We disagree.

       The trial court admitted the evidence under the doctrine of forfeiture by

wrongdoing. This doctrine holds that “one who obtains the absence of a witness


       4
         We note, in passing, that the jury heard an audio recording of appellant’s first
interview, watched a video recording of his second interview, and heard Dr. Frumkin testify
on appellant’s behalf. Moreover, the trial court charged the jury that it could not consider
appellant’s custodial statements until it determined he made them voluntarily after being
advised of his constitutional rights. Thus, the jury “was able to see for itself the
circumstances under which [appellant] made [his] statements,” Wright, supra at 432, and
reach its own conclusions as to whether appellant’s statements were voluntary.

                                             9
by wrongdoing forfeits the right to confrontation.” Davis v. Washington, 547

U.S. 813, 833 (126 SCt 2266, 165 LE2d 224) (2006). It has been codified in

Georgia’s new Evidence Code as OCGA § 24-8-804 (b) (5), which provides:

“The following shall not be excluded by the hearsay rule if the declarant is

unavailable as a witness: A statement offered against a party that has engaged

or acquiesced in wrongdoing that was intended to, and did, procure the

unavailability of the declarant as a witness.”

      The trial court found by a preponderance of the evidence that appellant

killed the victim “to make her unavailable as a witness.” See United States v.

Zlatogur, 271 F3d 1025, 1028-1029 (11th Cir. 2001); Brittain v. State, 329 Ga.

App. 689, 693-697 (766 SE2d 106) (2014). Because the evidence was sufficient

to satisfy the preponderance of the evidence standard, we find no error. See

generally OCGA § 24-1-104 (a) (“Preliminary questions shall be resolved by a

preponderance of the evidence standard.”)

      Relying upon OCGA § 24-8-807, appellant asserts that it was incumbent

upon the trial court to find that the diary entry was more probative on the point

for which it was offered than other evidence the State was able to procure. We

disagree. By its own terms, OCGA § 24-8-807 does not apply to evidence

                                       10
which is admissible under another exception to the hearsay rule.          See also

Bradshaw v. State, 296 Ga. 650, 657 (769 SE2d 892) (2015) (when evidence is

admissible for one purpose, we need not decide whether it is admissible for

another).

      5. Finally, appellant contends the trial court erred in its instruction to the

jury on battery. Specifically, the trial court charged the jury that a person

commits the offense of battery “when he or she intentionally causes substantial

physical harm” and a person commits the offense of battery “when that person

intentionally causes visible bodily harm to another.” Appellant contends this

was error because these definitions were used to describe both battery and

involuntary manslaughter (as a lesser included offense of felony murder), which

confused the jury. However, because the battery and involuntary manslaughter

convictions were merged and vacated by operation of law, see fn. 1, supra, this

issue is moot. See Ford v. State, 298 Ga. 560, 565 (783 SE2d 906) (2016).

      Judgment affirmed. All the Justices concur.




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