DANIELS v. the STATE.

FIFTH DIVISION
MCFADDEN, P. J.,
RICKMAN and MARKLE, 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

March 8, 2019

In the Court of Appeals of Georgia
A18A1865. DANIELS v. THE STATE.

MCFADDEN, Presiding Judge.

After a jury trial, Kareem Daniels was convicted of robbery by force. He

appeals, arguing that the trial court erred in not allowing him to impeach the victim

with a prior inconsistent statement, that the state knowingly failed to correct false

testimony from the victim, and that the admission of black and white photographs

instead of the original color versions constituted plain error. But Daniels has failed

to show that the trial court abused its discretion in prohibiting cross-examination

about a collateral matter, that the testimony in question was actually false, or that the

admission of the photographs affected the outcome of the trial. Accordingly, we

affirm.

1. Facts and procedural posture.
 Construed in favor of the verdict, see Jackson v. Virginia, 443 U. S. 307 (99

SCt 2781, 61 LE2d 560) (1979), the evidence shows that on September 28, 2012,

Lekeidra Taylor was walking to her apartment from a bus stop after work when

Daniels drove slowly past her in an SUV. Daniels parked his vehicle in the apartment

complex, got out of it, and forced Taylor into the back seat of his vehicle. Taylor

pushed Daniels away and got out of the vehicle, but during the struggle Daniels took

Taylor’s wallet from her. Taylor used her cell phone to take a picture of Daniels

holding her wallet and a picture of the license plate on his vehicle. Daniels eventually

left the scene in his vehicle and Taylor called 911 to report the incident. Police

apprehended Daniels later that evening.

The jury found Daniels guilty of robbery by force and the trial court imposed

a 20-year sentence, with five years to be served in confinement and the remainder to

be served on probation.1 Daniels appealed, and this court granted his motion to

remand the case to the trial court to consider the admission of photographic evidence

and whether the state had knowingly elicited false testimony from the victim. After

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The jury also found Daniels guilty of hindering a person making an emergency
call and driving with a suspended license, but the trial court set aside those verdicts
due to insufficient evidence. The jury returned not guilty verdicts on charges of
attempted rape and false imprisonment.

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a hearing on remand, the trial court found no errors and denied a new trial. Daniels

filed a motion for reconsideration, which was denied, and this appeal followed.

2. Prior inconsistent statement.

Daniels contends that the trial court erred in prohibiting him from impeaching

the victim with a prior inconsistent statement. We review that ruling for abuse of

discretion and find no such abuse. See Thomas v. State, 293 Ga. 829, 833 (4) (750

SE2d 297) (2013); Cruz v. State, 347 Ga. App. 810, 813 (2) (821 SE2d 44) (2018).

On direct examination, Taylor testified that she had met Daniels several months

before the robbery while she was working at a Kroger grocery store. While explaining

that at the time of the robbery she no longer worked at Kroger but was working at a

hotel, Taylor testified: “I basically left Kroger because I wanted to . . . get into the

healthcare field. And when it really wasn’t going well for me, I still had my CNA

[certified nursing assistant] at that time, I had finished job corp[s] and it was kind of

hard to find a CNA job, so I tried looking for other jobs and that’s when I went into

the [hotel] position[.]” On cross-examination, defense counsel sought to impeach

Taylor’s testimony that she had left Kroger to get into the healthcare field by asking

her if the reason she had left was because she had been caught shoplifting. Taylor

replied: “No, I wasn’t caught shoplifting.”

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 The state objected to the line of questioning as irrelevant. Outside the presence

of the jury, defense counsel produced a statement that Taylor had purportedly written

upon resigning from Kroger. Counsel read the following statement into the record:

I did a transaction for a refund that I put on a gift card that I didn’t buy.
I didn’t receive as a gift. I kept the gift card and used it. I’ve also used
another employee’s Kroger card to get his employee discount. Earlier
this week, I did another transaction, the same as one month ago and did
the same thing. I’m willing to pay back the money that I put on the gift
cards and the money that was discounted to me from the employee
Kroger card. As of March 31, I will resign from Kroger.

The trial court sustained the state’s objection and prohibited use of the statement for

further questioning about Taylor’s resignation from Kroger, finding that it was

irrelevant and collateral to the issues in the case.

(a) OCGA § 24-6-613 (b).

“Georgia’s new Evidence Code took effect on January 1, 2013, [approximately

10 months] before [Daniels’] trial began. On the issue of admitting extrinsic evidence

of a witness’s prior inconsistent statement, OCGA § 24-6-613 (b) substantially

adopted the language of Federal Rule of Evidence 613 (b)[.]” Hood v. State, 299 Ga.

95, 98-99 (2) (786 SE2d 648) (2016).

Under OCGA § 24-6-613 (b), extrinsic evidence of a witness’ prior
inconsistent statement may be admitted so long as the witness is first
afforded an opportunity to explain or deny the prior inconsistent

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 statement and the opposite party is afforded an opportunity to
interrogate the witness on the prior inconsistent statement or the
interests of justice otherwise require.

Brewner v. State, 302 Ga. 6, 16-17 (V) (804 SE2d 94) (2017) (citation and

punctuation omitted).

Because this code section substantially adopted the federal rule, we look for

guidance to the decisions of the federal appellate courts, which have “held – as

Georgia courts did under our old Evidence Code – that prior inconsistent statements

cannot be introduced through extrinsic evidence if they are irrelevant or collateral to

the subject matter of the case.” Hood, supra at 99 (2) (citations omitted). “Thus,

although aspects of Georgia’s Evidence Code dealing with prior inconsistent

statements used to impeach have changed, the principle that such statements may not

be introduced to impeach a witness on collateral matters remains intact.” Id. (citation

omitted). “A matter is collateral if the facts referred to in the statement could not be

shown in evidence for any purpose independent of the contradiction.” United States

v. Bordeaux, 570 F3d 1041, 1051 (V) (8th Cir. 2009) (citation and punctuation

omitted).

In this case, the trial court correctly ruled that Taylor’s resignation from

Kroger, including any purported reason for resigning, was a collateral matter since

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“the testimony [Daniels] wished to elicit from [Taylor] regarding [the reason she left

a job several months prior to the robbery] was irrelevant to the issues to be considered

by the trier of fact[.]” Wynn v. State, 272 Ga. 861, 862 (2) (535 SE2d 758) (2000).

The trial court thus did not abuse its discretion in refusing to allow Daniels to

introduce a prior statement to attempt to impeach the victim on a collateral matter.

See United States v. Blackwood, 456 F2d 526, 531 (2nd Cir. 1972) (“A witness may

be impeached by extrinsic proof of a prior inconsistent statement only as to matters

which are not collateral, i. e., as to those matters which are relevant to the issues in

the case and could be independently proven.”) (citations omitted).

(b) OCGA § 24-6-608 (b).

Daniels also argues that under OCGA § 24-6-608 (b) the trial court erred in

curtailing further cross-examination about Taylor’s alleged prior bad acts as shown

by her written resignation statement. OCGA § 24-6-608 (b) provides:

Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness’s character for truthfulness, other
than a conviction of a crime as provided in Code Section 24-6-609, or
conduct indicative of the witness’s bias toward a party may not be
proved by extrinsic evidence. Such instances may however, in the
discretion of the court, if probative of truthfulness or untruthfulness, be
inquired into on cross-examination of the witness[.]

(Emphasis supplied.)

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 Under the plain language of this statute, the trial court properly refused to

allow Daniels to use extrinsic evidence of the prior statement for the purpose of

attacking Taylor’s character for truthfulness. See Gilmer v. State, 339 Ga. App. 593,

599 (2) (c) (794 SE2d 653) (2016) (Under OCGA § 24-6-608 (b), “trial counsel

clearly would not have been permitted to introduce extrinsic evidence of the

[witness’] arrest for perjury[.]”). And “[b]ecause OCGA § 24-6-608 (b) places the

decision whether to admit specific instances of conduct within the trial court’s

discretion, we will reverse the trial court’s ruling only on a clear abuse of that

discretion.” Gaskin v. State, 334 Ga. App. 758, 762 (1) (a) (780 SE2d 426) (2015)

(citation omitted). Indeed, trial “court judges retain wide latitude to impose

reasonable limitations on cross-examination based on concerns about . . . prejudice,

confusion of the issues or interrogation that is only marginally relevant.” United

States v. Saunders, 166 F3d 907, 920 (7th Cir. 1999) (citation omitted). Here, we

cannot say from the record before us that further inquiry into the reasons why Taylor

left her prior job was mandated or “that the trial court abused its discretion in

precluding any such cross-examination under the circumstances[.]” Douglas v. State,

340 Ga. App. 168, 173 (2) (796 SE2d 893) (2017). See also Williams v. State, 332 Ga.

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App. 546, 549 (1) (b) (774 SE2d 126) (2015) (no error in trial court prohibiting cross-

examination under OCGA § 24-6-608 (b)).

3. False testimony.

Daniels claims that his conviction must be reversed because the testimony of

Taylor discussed above – that she left her job at Kroger because she wanted to get

into the healthcare field and that she was not caught shoplifting – was false and the

prosecutor failed to correct it. The claim is without merit.

A defendant’s right to due process is violated when a prosecutor
fails to correct the false testimony of a government witness. To obtain
a reversal on the grounds that the government failed to correct false
testimony, the defendant must establish that: (1) the contested
statements were actually false[;] (2) the government knew the statements
to be false; and (3) the statements were material. To succeed on [such a]
claim, the defendant must establish that the witness committed perjury.
Simply showing a memory lapse, unintentional error, or oversight by the
witness is insufficient. False testimony is considered material if there is
any reasonable likelihood that it could have affected the judgment of the
jury.

United States v. Clarke, 442 Fed. Appx. 540, 543-544 (II) (11th Cir. 2011) (citations

and punctuation omitted). See also Napue v. Illinois, 360 U. S. 264, 269 (79 SCt

1173, 3 LE2d 1217) (1959).

Here, Daniels has not established that Taylor committed perjury. See OCGA

§ 16-10-70 (a) (“A person to whom a lawful oath or affirmation has been

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administered commits the offense of perjury when, in a judicial proceeding, he

knowingly and willfully makes a false statement material to the issue or point in

question.”). Daniels has made no showing that Taylor’s testimony on direct

examination that she “basically left Kroger because [she] wanted . . . to get into the

healthcare field” was actually false. As the trial court recognized, a person may have

more than one reason for leaving a job, so even if “her stated reason for leaving

Kroger was not the whole truth of the matter, [it was] not necessarily false.” While

there may be conflicting evidence as to why Taylor left her job at Kroger, as our

Supreme Court has explained, “conflicting evidence alone does not support a showing

that the [witness] was necessarily being dishonest . . . or that the [s]tate knowingly

presented false testimony.” Greene v. State, 303 Ga. 184, 188 (3) (811 SE2d 333)

(2018) (citations omitted).

Likewise, Daniels has not established that Taylor’s testimony on cross-

examination that she was not caught shoplifting was actually false and rises to the

level of perjury. As Daniels conceded at trial, it is undisputed that there was no

shoplifting conviction. Moreover, the written resignation statement upon which

Daniels bases his claim of shoplifting indicated that Taylor “did a transaction for a

refund that [she] put on a gift card that [she] didn’t buy [or] receive as a gift. [And

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that she] kept the gift card and used it.” The statement, however, does not clarify

where the card was from or to whom it belonged, how Taylor obtained it, and how it

was used. While that statement apparently shows misuse of a gift card, given the lack

of specificity about the essential elements required to prove the offense of shoplifting,

it cannot be said with certainty that such a crime occurred. See OCGA § 16-8-14 (a)

(theft by shoplifting). Even if we assume that the acts in question could form the basis

for a shoplifting charge, there is no evidence that any such charge was ever made or

that Taylor knew that her conduct might be construed to support such a charge when

she denied having been caught shoplifting. Under the circumstances, Daniels has not

shown that the testimony was false since there are alternative explanations for the

discrepancy. See Clarke, supra at 544 (II).

4. Photographs.

Daniels claims that the trial court violated the best evidence rule by admitting

two black and white photos – one of his license plate and one of him holding the

victim’s wallet – because the original photos were in color. Daniels did not object to

the black and white photos at trial, so we review their admission under the four-

pronged test for plain error. See Gates v. State, 298 Ga. 324, 326 (3) (781 SE2d 772)

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(2016) (evidentiary rulings not objected to at trial are subject to appellate review for

plain error).

Under this four-pronged test, there first must be an error or defect
– some sort of deviation from a legal rule – that has not been
intentionally relinquished or abandoned, i.e., affirmatively waived, by
the appellant. Second, the legal error must be clear or obvious, rather
than subject to reasonable dispute. Third, the error must have affected
the appellant’s substantial rights, which in the ordinary case means he
must demonstrate that it affected the outcome of the trial court
proceedings. Fourth and finally, if the above three prongs are satisfied,
the appellate court has the discretion to remedy the error – discretion
which ought to be exercised only if the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.

Patch v. State, 337 Ga. App. 233, 242 (2) (786 SE2d 882) (2016) (citations and

punctuation omitted).

We assume for the sake of argument that Daniels can show that the admission

of the black and white duplicates of the original color photos meets the first two

prongs of the plain error test. But see OCGA § 24-10-1003 (“A duplicate shall be

admissible to the same extent as an original unless: (1) A genuine question is raised

as to the authenticity of the original; or (2) A circumstance exists where it would be

unfair to admit the duplicate in lieu of the original.”); Pierce v. State, 302 Ga. 389,

397 (2) (807 SE2d 425) (2017). Nevertheless, he has not satisfied the third prong of

the test, requiring that he demonstrate that the error affected the outcome of the trial

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court proceedings. Patch, supra. See also Henderson v. State, 320 Ga. App. 553, 562

(8) (740 SE2d 280) (2013) (“[P]retermitting whether the first, second, or fourth

prongs were satisfied, [appellant] failed to satisfy the third.”).

In this regard, Daniels makes no argument concerning the photo showing his

license plate. Instead, he only argues that he was harmed by the black and white photo

of him allegedly holding the wallet. He claims that the color version of that photo

shows that the item in question was black and white with some purple on it, whereas

Taylor described the wallet to police as black with different colored stars or

butterflies on it. He also claims that the color photo supports his theory that the item

in question is not the victim’s wallet but is his cell phone.

However, contrary to Daniels’ arguments, after the evidentiary hearing on

remand, the trial court expressly found that “there appears to be no significant

difference between the [p]hotograph introduced at trial and the color version thereof;

it is simply a copy of the color version.” Moreover, the state showed at trial that

Daniels’ cell phone was plain black with no white or other coloring on it. As noted

above, Daniels’ own description of the color photo is that it shows him holding an

item with white and purple on it, rather than a plain black item, such as his cell phone.

So it appears that he actually may have benefitted from the fact that the color photo

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was not admitted since it may have undermined his defense that he was holding his

cell phone in the picture. “Under such circumstances, we find that [even if] the

introduction of [the black and white photos] was erroneous, that error did not likely

affect the outcome in [this] case.” White v. State, ___ Ga. ___ (3) (Case No.

S18G0365, decided February 4, 2019) (citations omitted). See also Smith v. State, 299

Ga. 424, 431-432 (2) (c) and (d) (788 SE2d 433) (2016) (erroneous introduction of

evidence was harmless where aspects of the evidence appeared to have aided the

defense). Accordingly, Daniels cannot show that the admission of the photos

amounted to plain error affecting substantial rights. See State v. Kelly, 290 Ga. 29, 33

(2) (a) (718 SE2d 232) (2011) (“Satisfying all four prongs of [the plain error]

standard is difficult, as it should be.”) (citations and punctuation omitted).

Judgment affirmed. Markle, J., concurs and Rickman, J., concurs in Judgment

only.*

*THIS OPINION IS PHYSICAL PRECEDENT ONLY, COURT OF APPEALS

RULE 33.2 (a).

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