Ware v. State
302 Ga. 792
Ga.2018Background
- On January 1, 2011, after a New Year’s Eve party in Polk County, Jermaine Ware shot Rodney Mitchell, Jr.; Mitchell died from a .38-caliber projectile consistent with a revolver. Ware also fired at two other people who were not hit. Ware left the scene and traveled to Alabama shortly thereafter.
- Ware was indicted on multiple counts: malice murder, felony murder (aggravated assault), three aggravated assaults, and possession of a firearm by a convicted felon. A jury convicted Ware of malice murder and the aggravated-assault counts; a bench finding convicted him on the felon-in-possession count. He was sentenced to life for malice murder and concurrent five-year terms on the other convictions.
- At trial Ware advanced an alternate-perpetrator defense (an unidentified person was seen firing near the house). The prosecutor in closing argued, based on his experience, that defendants typically assert either self-defense or blame-another defenses and said self-defense was not available here.
- Ware objected at trial to the prosecutor’s comment as violating OCGA § 17-8-75 (prohibiting counsel from making prejudicial statements not in evidence); the trial court overruled. Ware raised the issue on appeal. The State conceded a separate sentencing error concerning merger/vacatur of the felony-murder verdict.
- The Supreme Court of Georgia reviewed sufficiency of the evidence (as its practice in murder cases) and concluded the evidence was sufficient to support the convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prosecutor’s closing comment referencing a defense not pursued (possible violation of OCGA § 17-8-75) | State: Comment was a permissible argument about the defenses and evidence; not prejudicial. | Ware: Comment was improper, trial court should have rebuked prosecutor and remedied under OCGA § 17-8-75. | Court: Failure to rebuke was at most harmless error given evidence and jury instructions; no reversal. |
| Sufficiency of the evidence to support convictions | State: Evidence (shooting, bullet type, witness testimony, flight) supports convictions beyond a reasonable doubt. | Ware: (did not challenge sufficiency on appeal) | Court: Reviewed sua sponte and found evidence sufficient under Jackson v. Virginia. |
| Sentencing procedure regarding felony-murder verdict | State: Sentencing order erroneously merged felony-murder verdict into malice murder; felony-murder verdict is vacated as a matter of law. | Ware: Sentencing error requiring correction. | Court: Agreed felony-murder verdict should be vacated (per controlling precedent) but error did not affect the sentence imposed, so no need to vacate the sentence. |
| Trial-court relief for prosecutorial misconduct (remedy) | Ware: Court should have rebuked prosecutor and possibly declared a mistrial per OCGA § 17-8-75. | State: Jury instructions and evidence obviated prejudice; rebuke/mistrial unnecessary. | Court: Jury instructions and strong evidence made prejudice unlikely; remedy not required. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of evidence review)
- Anderson v. State, 302 Ga. 74 (2017) (harmless-error analysis for prosecutor statements and effect on verdict)
- Arrington v. State, 286 Ga. 335 (2009) (prosecutor misstatements subject to harmless-error review)
- Jeffrey v. State, 296 Ga. 713 (2015) (felony-murder conviction vacated as matter of law when malice murder conviction stands)
- Hulett v. State, 296 Ga. 49 (2014) (same principle regarding vacatur of felony-murder verdict)