*1
promptness
requirement”
Pugh,
of Gerstein v.
Riverside does not
here because “the state’s
in promot-
interest
ing
parens
the welfare of the
patriae
child as
juvenile pro-
makes a
fundamentally
ceeding
different from an adult
proceeding.”
criminal
unnecessary
We find it
to decide
requirements
whether
applicable
Riverside are
involving
juvenile.
to a case
peti
Because
tioner did
petition
not file his
for
corpus
probable
habеas
until after a
made,
cause determination had been
the issue of whether this deter
timely
County
Riverside,
mination was
is moot.
supra, 111 SC at
1667;*
Mullis,
McCranie v.
Reconsideration denied October Pollard, Mark R. for Slaton,
Lewis R. Attorney, District Carl P. Greenberg, Rebecca Keel, A. Assistant Attorneys, District appellees. for
S93A1044. ALEXANDER v. THE STATE. Justice. Sears-Collins, Reginald appeals his convictions of involuntary man slaughter, felony murder, arson in the first degree, and trafficking cocaine. The trial court merged the invоluntary manslaughter convic tion and the arson conviction into felony conviction, murder sentenced Alexander imprisonment to life felony murder. The court sentenced Alexander to a years term of trafficking co caine, to run consecutively with the life sentence. * County Supreme Riverside the U. S. Court noted that the claims of the named petitioners petitioners were probable moot because the had either received cause determina- However, tions or been released. the Court held that because the claims that case had been action, certified as representative’s a class “the termination of a class claim does not moot the claims of the unnamed members of the class.” Id. 1, The crimes were 8, committed on March 1991. Alexander was indicted on March 1991, 6-14, January 1992, 17, tried January and sentenced on 1992. Alexander’s motion for 29, January 1992, new 8, trial was February filed on and was denied on 1993. Alexander filed appeal reporter his notice of March transcript 1993. The court certified the on March appeal 9, 1993, 1993. The April was arguments docketed this Court on and oral were heard on June victim, Breach, ro- Carla had a turbulent 1. Alexander relationship period 1, 1991. On of months before March for a mantic that apartment exploded day, in flames Breach received Breach’s body. percent degree died of her She burns over second and third day. light in the most When considered those burns next from favorable presented verdict, at trial sufficient the evidence *2 beyond inten- find a doubt that Alexander for tionally poured gasoline to reasonable the Breach, match, and tossed the
on struck a puddle gasoline lighted Jackson v. in of Breach’s feet.2 match the (1979). being Virginia, S. 61 LE2d After 443 U. gave warrant, a to with arrest Alexander written statement served an police, in which he claims that the death his first four enumerations accidental. alleges error, that of prosecutor a mistrial committed which warranted
the misconduct 17-8-75,3 law, § case OCGA or both: under (a) wrongly implied prosecutor that the Alexander first contends during closing argument the defendant hired an at- that the fact that day torney preparing giving began state- who his defense the after his guilt police innocence, and to reflected on the or ment wrongly implied “planned” portion of de- that a the defense counsel by “strategically placing” exculpatory car items Alexander’s fense and by expert.4 having photographed a We find no them defense error. “prejudicial are not not facts which
While counsel state permissible ., . . draw from evidence it is for counsel to deductions (Citation illogical regardless . . . .” of and unreasonable evidence how omitted.) Adams respect prosecutor by to the with of the statements made Each directly photographs and retention of counsel was drawn testimony. solely photographs or from from the themselves “ by reply by counsel, a not rebuke this was the ‘matter for adverse required. id., court[,]’ [cit.],” and a mistrial was not (b) testimony prosecutor During closing argument, referred by Breach, brother, as- and five Antonio the victim’s that Alexander opinion. presented Appendix The which follows this evidence at trial detailed prose timely objections Defense to each the statements made counsel made during argument complained appeal. closing which are The trial court instructed cutor closing objections argument and not re counsel to reserve until the end of defense give See 17-8-75. buke the or curative instructions OCGA defense, photographs, into The in the were evidence items which introduced support boxing gloves in that he trunk Alexander’s claim received included: used to boxing and for love fоr well-known nickname “Carver Homes Cash” because his childhood support Clay; plastic Alexan the back floorboard used Cassius a antifreeze container on can; type gasoline fire and was carried that der’s claim that the which accelerated thank-you plainly partially covering newspaper with date of fire visible and colorful from Carla Breach to “Cash.” note “Big prepared including Mike,”
sociates, for sale the a man named had cocaine apartment. “Big said Mike and the victim’s you’ve gang appellant argues gang, seen the here.” The and prosecutor’s “gang” of the word in reference use acquaintances family present during the courtroom the trial negative mistrial because of the connotations of was cause for word “gang.” prosecutor’s “gang” use of the word
We find was not testimony improper. In addition to Antonio Breach’s about Alexan- “associates,” der’s five the salesman who sold Alexander the car which day driving he had been of the fire testified that when Alexan- bought dealership, accompanied by der eight the car at the about regarding himself
men. Alexander testified at least two occa- night group sions when he was out at a club with a of male friends. In light “gang,” people testimony, prosecutor’s of this we find that the use of the word “Big gang,”
as in
Mike
was a reasonable reference to
spent
who the evidence showed
time with the
prosecutor’s
“you’ve
We do find troublesome the
statement that
gang
apparently
persons
referring
here,”
seen the
who had been
present
sequestration
in thе courtroom
the trial. As the rule of
ges-
courtroom,
was invoked and there were no
ture
be
probable
witnesses
*3
the
related to matters not
evidence and cannot
lightly
“highly
However,
overlooked.
an error is harmless if it is
jury’s
the error did not contribute to the
verdict.”
(230
869) (1976).
State,
59,
Johnson v.
238 Ga.
61-62
SE2d
We have
carefully
compelling
record,
reviewed the entire
with the
faced
(see
against
Appendix),
evidence
Alexander
we conclude that
adopted
harmless error standard
in Johnson has been met.
(c)
police,
“Any-
In his written stаtement to the
Alexander said
you
one who knows me would tell
I would never do that.” The state-
closing
ment was read and
introduced into evidence at trial.
her
argument,
referred to Alexander’s written statement
jury
Big
peo-
and asked the
. . .
“Where is Mike? Where are all those
ple”
testify
type
person
who would
that Alexander was not the
who
charged?
would commit the crimes with which he was
Alexander now
prosecutor’s
improper
contends comment was an
attack on
(363
generally
State,
his character. See
Jones v.
477 not in introduce facts which are evi thermore, may counsel not while 17-8-75, has argument, OCGA counsel widе closing during dence closing upon to remark the evidence and during argument latitude State, 194, Robinson v. 257 Ga. See facts which are before 74) (4) (1987). (357 question is no that Alexander’s There 196 SE2d it had jury, before the as been part statement was the evidence prosecutor’s closing query to stand. read full from witness people his written jury those to whom Alexander refers about evidence, to as com nothing introduced extrinsic statement statement, jury to the written had ob ment was confined presented by the defense. complement served of witnesses the full range within the closing argument hold that we properly on at commenting when evidence admitted allowed counsel State, Robinson, 196; Blanks v. supra, trial.7 257 Ga. see See (5) (330 575) (1985) (closing argument refer 254 Ga. SE2d interrogation made custodial during ence to statement defendant (106 evidence), cert. denied 475 U. S. was not outside 733). 1479, 89 LE2d
(d) required Next, that mistrial was because Alexander contends credibility of personal opinion as wit- prosecutor gave her to the closing argument.8 nesses during personal his jury to state improper is cоunsel
[I]t However, it witness. veracity as to the of a belief [Cits.] such urge to deduce improper not counsel to proven facts. conclusion from 218) (1980). The
Shirley State, credi- v. 245 Ga. SE2d evidence, jury’s state’s see call attention to the of the defense to rebut the failure 616, (1980); generally Shirley v. Ga. Griffin App. began, objected his statement on the admission of Before the trial However, voluntarily ground given. at no time before or trial that it was not and, hence, admissibility object failed Alexander to basis of statement’s preserve objeсt appeal, right Reeves v. on that basis on see the evidence *4 (1978). contention, waiver, (243 24) Contrary while 241 Ga. to the dissent’s SE2d relevant, objecting appeal holding majority because Alexander is not is not essential to evidence, closing argument. prosecutor’s but to the admission of the statement in decision, reflecting positively contrary any portion of a defendant’s statement a Under by any subject challenge on the or rebuttal state defendant’s character would not be fashion. Furthermore, us, this not address whether the as the issue is decision does not before prosecution’s open on his of a statement which reflects introduction defendant’s testimony by prosecution the evi- door to the introduction of character dentiary phase of the trial. credible, extremely witness, thought Referring “I to one stated: him”; did, too”; finding you thought you it’s I and to a and I “I’ll tell true. loved another: completely worthy you . . . .” of belief third: told the truth .... He was “Antonio bility by of each of the witnesses referred to was at- by closing argu- tacked ment. tenor the defense bоth cross-examination
Upon argument, review of the state’s entire it is clear that the prosecutor’s statements was to counteract the attacks urge jury testimony the defense and to to believe the of the wit- Shy evidence, State, nesses based on the see v. 234 Ga. appear express so, Even the isolated remarks prosecutor’s personal proper. beliefs, However, and were not consider- ing against closing argument, the entire as well as the abundance of evidence (see Appendix), “highly
Alexander
we are convinced that
isit
probable”
that the
would have reached the same verdict had
these statements not been made. See Johnson v.
3. The that the trial erred charge, motion for directed verdict on the arson since the state did any not offer apartment. evidence of the intent to burn the victim’s (1) damage “Arson has three basic elements: fire or (2) explosion; the intentional act or direction of the defendant know- ing (3) damage protected structure; it will lack of the Georgia Kurtz, owner’s consent.” Criminal Offenses and Defenses (R. 1991). Cleary dispute apart- 3d ed. There is nо that the victim’s damaged by pro- ment was consent, fire without her and that it is a tected structure §§ under OCGA Furthermore, 16-7-60 and 16-7-61. dispute Alexander does not started that it was he who struck the match that fire, but he claims it that was an accident. presented
The state evidence that Alexander had threatened the physically victim’s life more than once before the fire and had abused expert began the victim. The state’s arson testified that the fire in a puddle gasoline ignited floor, floor which was close to the injuries and that the extent оf Alexander’s der’s clothes were not burned made the version of the fire set and the fact that Alexan- forth impossible. Alexander’s written statement presented by We find that this evidence supports finding appellant’s striking the state of the match was not accidental. because “a motion for only granted directed verdict a criminal trial should be where there is no conflict in the evidence and the evidence demands a verdict of acquittal Taylor law,” as a matter *5 311) (1984), judge denying in not err we hold the trial that
SE2d verdict. motion for a directed felony argues guilty appellant both that the verdict of 4. The involuntary manslaughter is misdemeanor inconsistent murder and involuntary appellant guilty illogical, man- because to find the and (b) jury slaughter have found OCGA had to that under 16-5-3 striking ap- Therefore, was lawful. act of the match Alexander’s pellant argues, aggravated an was unlawful act to constitute there no support felony conviction, and that conviction murder assault to should be vacated. “[consistency Georgia long in It has been rule regarded necessary. is is count an indictment as verdict not Each separate States, 390, Dunn v. United 284 U. S. was a indictment.” it (52 356) (1932). 189, LE Accord v. Milam 255 Ga. 393 560, 216) (1986); v. Smashum 261 Ga. SE2d 797) (1991). assuming aggra- Furthermore, even that an SE2d jury precluded case, in this found the vated conviction was assault appellant guilty arson, was also the indictment as which named felony felony charge, merged underlying was murder and an felony by trial To convict de- murder conviction court. into fendant for necessary felony jury murder, find the it is not every guilty underlying named defendant of each and offense (3) (401 generally McBride, v. State indictmеnt. See by espoused appellant argues that the doctrine this 5. The (1992), Edge Ga. Court should murder slaughter, felony preclude extended to conviction be involuntary man- was also convicted of when felony conviction should be murder therefore involuntary manslaughter merged conviction, vice not versa. into the merger Edge, adopted In of the this Court a modified version only holding doctrine, which one assault could that where there voluntary felony manslaughter, murder or form basis of either by passion, mitigated provocation аnd assault and a finds the voluntary manslaughter, then a con- as a conviction for evidenced felony must Id. current murder be vacated. conviction passion, involving provocation case, however, or this there is no issue Edge provocation passion finding no and does not or expand apply case, the rule we decline to Edge. adopted in except Judgment Fletcher, J., concur, theAll Justices affirmed. judgment only, Benham, J., who dissents.
who concurs in Appendix. Department,
A officer from the East Point Police Ron- narcotics Walker, that he was called to the scene of the fire where ald testified refrigerator apartment’s door, front of the rear which he found led into the mately approxi-
kitchen. Walker also discovered the kitchen empty, zip-lock plastic bags, single-edged 1,000 small, several glass type commonly blades, several vials of the used to bake razor large plastic bag containing grams cocaine, crack and a more than 600 *6 powder of cocaine ing. hidden between the kitchen cabinets and the ceil- apart- witness testified thаt he had been to Another the victim’s bought a ment earlier that month with friend who crack cocaine from they bought Alexander there. witness stated that the crack co- caine for resale. respect relationship
Several witnesses testified with to the be- testimony victim, tween Alexander and the that Alexander Carla Breach. There was spit night the victim’s face one when the two saw nightclub, éach other a that the victim was seen with bruises on day gone her face the nightclub, after she had home with Alexander from a night and that the same the victim was heard to ask Alex- going again, whereupon replied if ander he was to beat her he that she brought upon had herself. The victim’s mother testified that the day say before the fire she heard Alexander to the victim that if she night “pop cap” in went out that he would a her head. The victim’s brother, Breach, Antonio testified that the month before the longer fire he heard his sister tell Alexander that she would no see him married, because and that Alexander told the victim that contrary, if he could not have her no one would. Tо the sought relationship testified that it was he who to break off the be- marriage, begged cause of his and that Carla Breach him not to leave night her. Antonio Breach also testified that one while he was still living spend they apartment with his sister left the in fear and went to night at their mother’s house after Alexander threatened telephone up” apart- over the to have someone come and “shoot ment. day
Alexander testified that on the of the fire his car ran out of gas way gas Breach, as he was on to visit and that he took a can of apartment pick up. him with to her when she came to him Alexander repeated claims that after he to Breach that he would not be able to anymore they argued struggled married, see her because he was gas spilling gas can, over the on themselves. Alexander testified that him, Breach then used a match to scare after which he took the “accidentally” starting it, match and lit the fire. emergency personnel
When the first medical arrived at the scene apartment complex, firе, of the the victim was on the lawn of the hav- helped building by ing passing out of the been motorist who saw the They gasoline, fire. the victim’s clothes had been burned testified that the victim smelled of and that all of except
off, for small bits which body. sobbing clung to her charred She was alert but with concern for apartment. approached child, her who had also been She was by Alexander, whose face and hands were burned but whose clothes completely intact, and shoes were not burned and were who said to sorry, sorry, it,” “I’m I’m I the victim didn’t mean to do to which the “Why responded you Contrary testimony victim trial about do it?” to his having lit the match because the victim had threatened to they fought, neighbor him do the same to after Alexander told a gas a fireman at the scene that he had knocked the can over and the began light cigarette. fire started when he expert began puddle The state’s arson testified that the fire in a gasoline ignited floor, on the floor which was close to the not at expert clothing hand level. The testified that Alexander’s had gasoline it, hаd statement, on as Alexander claims his written it caught fire, would have burned when the room would have sustained more and Alexander injuries than the flash burns to his face according expert, and hands. the version facts impossible. which Alexander sets forth his written statement is physician anesthesiologist Both the who treated the vic- emergency right tim the room after the fire testified that the victim brought in, was alert when she was that she was informed that her *7 good throat, condition was not and that she need a tube in her would speak. after which time she would bе unable to When asked how her injuries boyfriend poured gasoline occurred, the victim stated that her anesthesiologist placed on her and lit her on fire. The same precautionary procedure, tube Alexander’s throat as a that before was and testified being anesthesiologist if intubated Alexander asked the angry going him him with and was to hurt because of what he did to the victim. injuries morning
Carla Breach her died of the after the fire. days police later, Three East Point detective William Gorman went to hospital to serve an arrest warrant on Alexander for the victim’s physician attending murder. The Alexander testified that at time “alert, oriented, visit, of Detective Gorman’s Alexander was and re- sponsive.” gave being rights, Miranda After advised of his Gorman, his written statement to Detective which was read to the jury at trial. performed autopsy an on the victim’s
The medical examiner who body pregnant at the time of her testified that the victim was not witnesses, Smith, Van testified that death. Another of the state’s say twice, trial, after fire but he heard Alexander “that before up glad up fucked his that he burned the bitch because she stuff,” meaning drugs. his Justice, dissenting.
Benham, (c), prosecutor’s query that majority asserts In Div. said, I’m (“Where people [appellant] are all those argument closing they? Where things? would do all these are kind of man who not the say here and going get up to that people all Where are these [who are] things?”) a comment on man to do all these he not the kind of is The jury.9 had been read to the in evidence the statement facts since to object that failure admission majority then holds waiver his constituted a of grounds statement on character impermissi- prosecutor’s argument that right appeal to assert on majority The then that bly character evidence. concludes introduced proper was a comment evidence prosecutor’s statement majority’s I with decision that there has disagree before been a waiver. statutorily character is rendered
Evidence a defendant’s bad put have first his “unless and until the defendant shall inadmissible (b). Only OCGA 24-9-20 where a defendant character issue.” § present evi- put good elects to his character issue the State Jones v. dence of bad character. bar, never introduced evidence of the case
his character. It was State that introduced into evidence a good pre-trial opinion The im- majority made statement his in issue he plicitly holding puts that a defendant character when then police. majority goes require makes a statement positive anything might to seek redaction of he have said defendant about statement, prior himself the State’s introduction or consequences his having placed suffer the character issue. How- ever, put “a defendant does not his ‘character issue’ within the (b) by of OCGA 24-9-20 meaning regarding inadvertent statements good supra Jones Even were own conduct.” at 758. we defendant, may to assume that rather than the introduce open good evidence of the defendant’s order to the door character, for admission of evidence of bad we must conclude that pre-trial police statement others know he is not pеrson kind of was “an thing to do such inadvertent statement conduct,” regarding his own and therefore cannot be the basis good *8 commentary for admission of character evidence or bad for that, during appellant, It be of tried should noted cross-examination get get appellant give several times to character evidence so that she could then some of time, objections her questioning, point.” in. court own character evidence Each the trial sustained defense very stating “walking narrow at one time was line at good evidence. of character lack successfully appellant bar, defeated the State’s at In the case appellant open tempts to have character on cross-examination argüment By permitting during closing the State to comment door. produce witnesses, the trial court al failure to character it to do cross-examina the State to do what it forbade lowed — appellant appellant make an issue when had character tion of not By permitting character an issue. the State to elected to make question appellant witnesses, without the whereabouts having put issue, trial court allowed the his character prove good upon the need to he was of char to force State acter, choice for a de that has heretofore been a matter of a burden supra respectfully at 755. I dissent. See Jones fendant. 4, 1993 Decided October Reconsideration denied October Findling, Blitz, Drew Lewis R. Anna Attorney, Keel,
Slaton, A. Leonora District Rebecсa Attorneys, Attorney Bowers, J. Grant, Assistant District Michael Peggy Boleyn, Attorney General, General, Assistant Susan V. Senior Attorney, appellee. Katz, R. Staff
S93Y0203, THE MATTER OF S93Y0990. IN
CHARLES C. CARTER.
(436 SE2d
Per curiam.
Respondent,
complaints against The State Bar filed formal
upon
alleged
clients,
this Court
of two
and
abandonment
based
Respondent
personally
special
appointed
was
served
master. The
complaints
allowed, but he failed to
the time
with the formal
within
findings
making
special
of fact
order
master entered an
answer.
and conclusions
Respondent
recommending
be
of law and
discipline,
aggravation
special
considered, in
disbarred. The
master
including
pattern
Respondent’s
cases,
In the
in similar
of conduct
897) (1993)
Carter,
C.