Fernandez v. State

The trial court properly admitted the first victim's out-of-court statements to authenticate a videotape of one armed robbery since the state showed that it could not locate the victim for trial, despite a diligent effort.

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A Muscogee County jury convicted Mark Fernandez of two counts of armed robbery, OCGA § 16-8-41; attempted armed robbery, OCGA § 16-4-1 criminal attempt; and three counts of possession of a firearm during the commission of a crime, OCGA § 16-11-106. Following the denial of his motion for new trial, Fernandez appeals, contending the trial court erred in admitting hearsay evidence and evidence of bad character and in commenting on the evidence. Finding no error, we affirm. Viewed in the light most favorable to the prosecution,1 the record shows the following. At about 2:45 a.m. on November 30, 2001, Fernandez, wearing a black mask and black gloves and carrying a silver pistol, tried to enter a convenience store. Fernandez’s accomplice, Michael Kimbrough, waited in Fernandez’s car. The store’s door was locked, and Fernandez ran back to the car. About 25 minutes later, Kimbrough, acting on Fernandez’s instruction and wearing the mask and gloves and carrying the pistol, robbed another nearby convenience store. About 20-30 minutes later, Fernandez, again wearing the mask and gloves and carrying the pistol, robbed a third convenience store. Within minutes, officers arrested Fernandez and Kimbrough during a traffic stop. In the car, officers found the mask, gloves, gun, and proceeds of the robberies.

On the State’s motion, and after hearing evidence of the State’s unsuccessful efforts to locate the victim of the first completed robbery, the trial court ruled before trial that the victim was unavailable and that testimony regarding his out-of-court statements would be allowed under the necessity exception to the hearsay rule. Over Fernandez’s renewed objection at trial, the State authenticated the videotape taken by the store’s security camera by having the investigator testify as to the victim’s statement that the videotape accurately portrayed the events depicted. Kimbrough, who planned to plead guilty to one count of armed robbery, testified for the State at trial. Fernandez testified in his own defense.

Fernandez v. State

The trial court properly admitted the first victim's out-of-court statements to authenticate a videotape of one armed robbery since the state showed that it could not locate the victim for trial, despite a diligent effort.

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