Herrington v. State
300 Ga. 149
| Ga. | 2016Background
- On August 24, 2006 Curtis Howard was shot and killed after being forced out of his truck during an apparent drug-related robbery; two shots were fired and his body was later found in the bed of his truck. Two kilograms of cocaine were found in the truck.
- Appellant Anthony Herrington was indicted with co-defendants for malice murder, felony murder (based on aggravated assault), and firearm offenses; at trial he was acquitted of malice murder and possession of a firearm during a crime but convicted of felony murder and sentenced to life.
- State witnesses Michael Thomas and Michael Fields testified that Herrington approached the truck with co-defendant Michael Jones (who fired the shots), helped control Thomas while the shooting occurred, and assisted afterward in covering the scene and loading the body.
- Herrington testified he heard shots as he rounded a corner and denied participating in the killing, claiming he helped only because children were coming home.
- Post-trial claims raised on appeal: insufficiency of the evidence as to the aggravated-assault predicate, alleged improper jury instruction on aggravated assault, improper voir dire questioning (and denial of mistrial), and ineffective assistance of trial counsel.
Issues
| Issue | Appellant's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated-assault predicate to felony murder | Evidence insufficient because Herrington did not personally possess or fire a gun; acquitted of firearm charge | A defendant may be guilty as a party if he intentionally aided or abetted; presence, conduct, and assistance before/after supports party liability | Affirmed — evidence sufficient to convict as a party to aggravated assault and thus felony murder |
| Jury instruction on aggravated assault | Trial court erred by not limiting instruction to language in indictment ("by shooting") | Court gave pattern deadly-weapon charge; jury had indictment and was instructed State must prove elements beyond reasonable doubt, curing any overbreadth | No plain error — instruction not shown to be obvious error or outcome-determinative |
| Voir dire misconduct / denial of mistrial | Prosecutor’s questions (about holding a party equally responsible and outlining the crime) prejudiced jurors; mistrial required | Trial court curtailed improper question, cautioned panel that attorney statements aren’t evidence, and questions were to screen for prior knowledge; no abuse of discretion | No abuse of discretion — denial of mistrial affirmed |
| Ineffective assistance of counsel for moving for mistrial instead of challenging the panel | Counsel used wrong procedural vehicle (mistrial vs. challenge to the poll) causing prejudice | The motion’s clear import sought a new panel; incorrect nomenclature does not show prejudice where court correctly ruled on the merits | No ineffective assistance — no prejudice shown under Strickland |
Key Cases Cited
- Flournoy v. State, 294 Ga. 741 (party liability can be inferred from presence, companionship, and conduct)
- Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of the evidence)
- Saffold v. State, 298 Ga. 643 (plain-error standard for unpreserved instructional claims)
- Dugger v. State, 297 Ga. 120 (indictment and jury instruction cure overbroad charges)
- Ellington v. State, 292 Ga. 109 (permissible scope of voir dire about juror prejudice)
- Thomas v. State, 296 Ga. 485 (voir dire question about party liability viewed as screening for prejudice)
- Kinder v. State, 284 Ga. 148 (trial court discretion in voir dire and jury selection)
- Sharpe v. State, 272 Ga. 684 (procedural vehicles for challenging a panel; nomenclature may be disregarded if import is clear)
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective-assistance claims)
- Cash v. State, 297 Ga. 859 (a defendant may be a party to aggravated assault without knowing which co-defendant possessed the gun)