Cross v. State

Brandon Cross was convicted in 2003 of murdering Debra Hymer, in whose home he had been living, along with his girlfriend Jessica Cates, who pleaded guilty to related charges before his trial. His appeal was delayed for over 16 years due to lost paperwork and missing new counsel, during which time some trial exhibits, including a video recording and original audio recordings, went missing. On appeal, Cross argued the trial court wrongly blocked him from impeaching Cates's hearsay statements, failed to instruct jurors on the burden of proof for co-conspirator statements, wrongly admitted graphic autopsy photos and a crime scene video, and that the incomplete trial record meant he deserved a new trial. The Supreme Court of Georgia found most of his claims were forfeited because his trial lawyer never raised them at the time, and it ruled that the photos and video were properly admitted and that the trial court had adequately reconstructed the missing exhibits, so his convictions stand.

The court held that Cross forfeited his hearsay-impeachment and jury-instruction claims by not raising them at trial, that the post-incision autopsy photos and crime scene video were properly admitted because they showed injuries and evidence locations not otherwise visible, and that the trial court adequately reconstructed the missing exhibits, making the record sufficiently complete for review.

The ruling shows how procedural forfeiture rules can bar appellate review of trial errors that were not objected to at the time, and it clarifies how Georgia courts should reconstruct incomplete records years after a trial when exhibits go missing during long appellate delays.

Affirmed

1. Under Georgia's old Evidence Code, a defendant had to argue at trial that hearsay was admissible under a specific legal theory to preserve that argument for appeal; because Cross never argued below that Cates's statements or her plea deal could be used to impeach her earlier hearsay statements, that claim was forfeited.
2. Because Cross's trial lawyer did not object when the judge failed to instruct the jury on the burden of proof for co-conspirator statements (statements by one plotter used against another), and his trial predated the law requiring automatic plain-error review of unobjected jury instructions, that claim could not be reviewed on appeal.
3. Post-incision autopsy photos (pictures taken during the internal examination of a body) were admissible under the old rule because the medical examiner testified they showed internal head and neck injuries not visible from the outside due to decomposition, and they helped rebut Cross's claim he never struck the victim's head.
4. The crime scene video, though duplicative of photos already in evidence, was properly admitted because it showed the location of evidence relative to the victim's body and house, which Georgia precedent recognizes as relevant even when cumulative.
5. Because the record-reconstruction hearing followed Georgia's statute governing incomplete trial records (O.C.G.A. § 5-6-41), was held before the same judge who presided at trial, and the substituted exhibits were unopposed and represented as accurate, the reconstructed record was sufficiently complete for appellate review.
6. The cellmate's affidavit describing an alleged post-trial confession by Cates was never properly part of the record because the trial court lost jurisdiction over the motion attaching it once Cross filed his notice of appeal, and the remand hearing was limited to completing the existing record, not reopening it for new evidence.

• murder conviction
• autopsy photographs
• co-conspirator hearsay
• reconstructed trial record
• crime scene video