Bridges v. State
492 S.E.2d 877
Ga.
1997
Check Treatment

*1 significantly damages shows that the classification Tusk Partner’s property. precise interest in its Because of its location on Jonesboro property’s present suitability development Road, the for residential appears negligible. under R-100 to be The evidence of record also development demonstrates that residential under R-100 at this loca- expansion tion will not become more in future, feasible as the development along Road, Jonesboro corridor, its continues. This by surrounding properties conclusion is bolstered already the fact that developed commercially, been, be, have or soon will and the noteworthy development abutting portion fact that residential this essentially Jonesboro Road has ceased. “ zoning may A classification be set aside if it ‘results in rela- tively gain public inflicting little or benefit to the while . serious . . ”18 City argues property loss to the owner.’ The has value as argument standing zoned. does not show a serious consideration, While a relevant alone gain public justify or benefit to the sufficient to damage zoning inflicted the current to Tusk Partner’s ownership interest.19 supported by court,

As found the trial and as the evidence of zoning seriously record, property’s damages because the R-100 classification substantially public owner, and is not related to the safety, health, welfare, the classification is unconstitutional and must be set aside. Presiding I joins am authorized to state that Justice Fletcher special

this concurrence. 3, 1997 Decided November 21, 1997. Reconsideration denied November Fjelstul, Nelson, & appellants. Jenkins Olson, Kirk R. Peter R. for Sanders, Troutman Newton, Richard A. Palmer, Charles F. appellee. Kamerschen, Robert W. for

S97A0890. BRIDGES v. THE STATE.

Sears, Justice. Appealing from his convictions murder, armed 18Skelton, Barrett, 266). (quoting 248 Ga. at 856 235 Ga. at 19 Id. appellant Joseph Bridges

aggravated assault,1 raises numerous jury. pertaining to the trial court’s enumerations portions that, instances, of the trial court’s we find several While persuasion jury improperly placed a burden charge, having entirety Bridges, reviewed the of the court’s Bridges’ rights process prejudiced. of due were not We satisfied that also find that certain

any the trial court’s admission of errors associated with testimony against hearsay prohibition on the and comment light to call a harmless in of the over- State’s failure witness were Bridge’s guilt. Finding whelming no other error evidence of associ- adjudication Bridges’ guilt, ated the we affirm. with a The evidence introduced at trial was sufficient to warrant Bridges, rational finder of fact to determine that McClendon were Chambless and riding by Vaughn. in a car driven The car circled past game being played apartment. a dice outside an several times Bridges, rying car; and the Chambless was car- Chambless McClendon left handgun, Bridges handgun mm a .9 mm

a .22 and obtained Bridges, nearby a friend in a car. Several minutes after Cham- joined watching game, the crowd the dice bless and McClendon Bridges gun everyone present and to lie on the drew a ordered bystanders holding ground. game participants complied, The and money up their for Chambless to collect. None of the victims resisted leaving provoked crime, or Bridges the robbers. As he was the scene of the Cunningham, fired a into the of Derico one of the bullet back lay ground. Bridges players, stated, face on the then dice as he down my Cunningham hours, “I man.” Within died from the wound shot by by Bridges. game participant inflicted Another was wounded gunshot criminals then ran to the fired Chambless. The trio of they waiting Vaughn wheel, A and, car with behind the drove off. bystander police truck, followed them in his own and contacted pursuit. police phone while criminals’ car crashed and cellular The Bridges appre- at the scene. and the others were arrested Chambless shortly thereafter. hended February 15, 1994, Bridges September occurred on 1993. On was The crimes (a) murder, murder, robbery aggravated armed and assault of indicted for the malice (b) Johnson; robbery Anthony Wright, Cunningham; (c) the armed and Kenneth Tomes (d) aggravated Wright; aggravated the assault with the intent to rob of assault 12-18, 1994, July Bridges Thompson found and Bruester. The trial was held on was (a) 27, 1994, guilty By July imprison order filed on he was sentenced to life on all counts. (b) counts, Cunningham’s murder; robbery imprisonment armed to run ment for life for the (c) consecutively sentence; twenty years aggravated assault to the first each for the counts, consecutively Bridges’ new trial motion was filed on to run to the other sentences. 11,1996, 28,1997.

August 3,1994, January The court amended on December and denied on appeal reporter transcript notice of certified the of the trial on December 1994. 11, 1997, 26,1997. February appeal and it was sub filed The was docketed on March on argument May 1997. mitted for decision without oral trial,

At and McClendon Bridges Chambless identified as the one suggested robbery, who initiated the and shot and killed Cunningham. Vaughn also identified a rider in his car Bridges as scene, as one who went to and fled from the crime Cham- along with bystander bless and McClendon. Four victims and a identi- fied as the one who shot and Cunningham; killed others nearby the scene of the crime identified at being the crime scene. The testimony identifying Bridges witnesses’ was consistent details, all including sequence crime, of events surrounding crime, the comments and threats during the and the clothing by Bridges trial, worn the crime scene. At defense, asserted an alibi and testified that he was at his own home at the the crimes time were committed. trial, The

1. evidence introduced at construed favorably most verdict, was sufficient to authorize a rational trier of fact to find Bridges guilty of the crimes of which he was convicted.2

2. raises sixteen enumerations of error concerning jury. trial court’s to the In considering these enumerations within context of the entire charge as a whole and the trial record,3 find that general given the State’s burden to prove every material allegation indict- *3 ment against Bridges beyond doubt, a reasonable and that Bridges carried no burden of proof whatsoever to disprove any part of the allegations against him. Our review of these general charges shows them to accurate, have been altogether and does not contend otherwise. the

Regarding charges given to the jury each regarding crime charged against Bridges, we find that:

(a) The trial court correctly the charged jury that if it found that had murder, committed malice alleged as in count one of the indictment, beyond doubt, a reasonable then it would be authorized him convict of that crime. The trial court also correctly charged if jury that the did not beyond believe a reasonable doubt that Bridges had murder, committed malice alleged one, as in count then it was him required acquit of that charge. These charges accurate, and does not contend otherwise.

(b) two, Regarding counts three and four indictment, of the felony murder, the armed robbery, and aggravated assault of Cun- ningham, the trial court correctly charged jury the if it found had committed those beyond offenses doubt, then it would However, be authorized to convict. Virginia, Jackson v. 443 U. S. 307 SC 61 LE2d McGuire, Estelle v. charged jury counts, each of these the trial court also the that: you If after a consideration evidence, should find that [these beyond offenses] the defendant did not commit a rea- you acquit doubt, sonable defendant.4 then would be authorized to the charges Thus, while the trial court’s on these three counts were findings required correct court’s acquit, conviction, for a the trial jury erroneously that, instructed in order to jury beyond had to find a reasonable doubt that did not commit the offenses.5 It is axiomatic that no burden is ever placed on a “charges criminal defendant to innocence, establish place any persuasion upon which burden of the defendant in criminal given, charges cases shall not be and such will be deemed erroneous subject [or] reversal, absent harmless invited error.”6Because directly implicated Bridges’ process right this error compel due prove beyond every State to a reasonable doubt element of the crimes charged, with which he was it is of constitutional dimension.7 required. However, it does not follow that reversal First, jury judged above, stated erroneous instructions are not isolation, jury but rather are considered in the context of the entire “ the trial record as a whole to determine ‘whether there is a reason- applied challenged able likelihood that the has instruction in ”8 way violates the Second, Constitution.’ an erroneous charge is not reversible unless it causes harm.9 Applying principles say these case, to this that, we cannot under case, circumstances of this there was a reasonable likelihood that jury applied permit the incorrect so as to convictions for felony aggravated murder, armed assault without com- pelling prove every beyond the State to element of those crimes a rea- jury correctly sonable The doubt. trial court that before beyond convict, it could it first had to find a reasonable doubt that quote This is from the trial murder. The on the under lying aggravated identical, felonies of armed *4 except they assault were that jury Bridges instructed that if the found beyond had not committed those offenses a reason doubt, “required able acquit.” then it was 5 point reference, As a Jury of the jury Pattern Instructions direct that the should be charged [it does] that “If guilty, not believe that any [it has] the defendant is ifor reasonable guilt,” doubts acquit. as to the Superior Judges, defendant’s then it must Council of Court Suggested Jury Instructions, II, Pattern p. Vol. (227 Moore, 269, State v. 237 Ga. SE2d Clark, 570, 3101, See Rose v. 478 U. S. SC 92 LE2d 8 Estelle, 72; (quoting Boyd California, 1190, 502 U. S. at 316) (1990)) (emphasis supplied). (c). See OCGA 5-5-24 § reiterated that was Bridges instruction an those crimes committed charges general the State during that the trial times several every beyond as to persuasion doubt a reasonable of the burden bore charged. discussed, trial court the course, as Of crimes element acquit jury charged that incorrectly if it found had to that the also beyond Look- reasonable doubt. Bridges a the crimes not commit did charges general especially charge ing regarding whole, the aas the entire persuasion could a conviction before State’s burden the say that likelihood there is a reasonable that rendered, cannot we be the incorrect the correct negated jury acquit charges regarding must the when findings regarding a charges had to be made before what instructions, trial court’s Under the rendered.10 could be conviction anything jury simply than a reasonable less convict on could not the jury charges Accordingly, dis- find the while standard. doubt cussed above able stitutionally they create a reason- erroneous, did not to have been con- under a been convicted could have likelihood that they harmless. standard, and thus were eight deficient (c) (repre- Similarly, regarding nine five, seven, counts aggravated senting assault), count of and one counts three armed jury correctly charged could not con- that the the trial court beyond commit- that a reasonable doubt it found unless vict ted the if it acquit jury incorrectly charged the should that offenses, and beyond a reason- the offenses did not commit that found having as a above, examined As discussed doubt. able regarding charges general especially the State’s burden whole, say proof that there rendered, we cannot could be a conviction before charges regarding when the incorrect likelihood that is a reasonable the charges regarding acquit negated jury what the correct must findings Under a conviction could be rendered. to made before had be jury simply charge, these not convict on could the trial court’s beyond doubt until it determined counts unless and four concerning guilty.* Thus, enumerations that rejected. charges these (for (d) Having six on counts the trial court’s reviewed (for aggravated robbery), with assault and ten and eleven armed correctly rob), trial court intent to we determine beyond reasonable it convict unless found could not correctly charged offenses, and committed doubt 512) (1949) (a profusion of correct Siegel 253-254 SE2d 206 Ga. See may counterbalance an incorrect the State’s burden innocent). But see Williams effectively presumption that the defendant is diminishes (where (1997) (Sears, J., dissenting) no accurate 778-779 charged, possible for the it is given element of the crime an essential is standard, required). and reversal an unconstitutional to convict on Siegel, supra. See *5 (or, that if it found that did not commit the offenses as was charged regard jury six, with to count if the had reasonable doubts robbery), required about whether he committed armed it was to acquit. reject Bridges’ Thus, we enumerations those charges.

(e) Having charge reject Bridges’ reviewed the whole, as a we charge accomplice testimony contention that the trial court’s on improperly suggested that the State’s witnesses and accomplices, expression opinion by and thus constituted an of Bridges’ guilt.12Contrary Bridges’ court as to to contention, the trial impermissibly persuasion by court did not shift him the burden of to presuming in its that the State’s witnesses were involved in committing charged.13 the crimes with which was

Similarly, charge, we find that the trial court’s whole, taken as a required jury beyond to find a reasonable doubt that was party reject Bridges’ contrary a argument. crime, to the and we We regard Bridges’ that, also find with to defense, alibi the trial court correctly charged proving beyond that the State bore the burden of a present reasonable doubt that was crime, the scene of the reject Bridges’ and therefore we charge impermissibly placed contention that the trial court’s prove him the burden on his alibi. Finally, having transcript, making reviewed the we conclude that in charge, improperly its jury the trial court did not comment to the opinion Bridges’ by instructing its of alibi defense that “an possible guilty alibi which still leaves it for the accused to be is no reject all,” alibi at and as meritless contention that the confusing. on alibi was (f) jury The trial court that: person presumed A of sound mind and discretion is to intend probable consequences the natural and of his act . . . and if person deadly weapon instrumentality a uses a or in the weapon instrumentality manner in which such is ordina- rily employed produce being, death of a human the law presumes presumption may the intent to kill. This be rebut- proves [committed ted, and if the State that the defendant charged] by deadly weapon murder as likely use of a in a manner produce killing presumed death, then the to be intentional and malicious, stated, unless as in circum- justification appear stances alleviation, excuse or [sic] your satisfaction from the evidence. See Ladson v. 477-478 13 See id. Supreme in Sandstrom v. Court United States held As erroneous this was in later and reiterated cases,15

Montana,14 a material impermissibly the burden shifted it because Bridges. charged against material element As a crime of a element beyond proven kill must be murder, intent to malice jury charge, instructed the the trial court In State. its doubt regard mandatory presumptions intent ele- exist with that two ment. presumed to kill is that the intent told First, the was ordinarily employed deadly weapon in manner a one uses when and malice that intent Second, instructed death. cause *6 deadly proved used a presumed defendant that the if the State were weapon Although likely trial court result in death. in a manner presumption rebuttable, the mandate to was the first mentioned that by the trial apply presumption in and reiterated left was place,16 long presumption. as the “So the second court’s instruction produce [Bridges] required more than ‘some’ infer that was could presumption, [intent] the instruction to rebut in order evidence Thus, conceded impermissibly as shifted the burden proof.”17 jury charge portions were erroneous. State, these impermissible is harmless instruction However, Sandstrom an applied long of the crime to an element was as the instruction so guilt is overwhelm- trial, and if the evidence in the not at issue was Bridges’ non- at trial was above, defense As discussed ing.18 — any possi- precluded an alibi he claimed in the crime involvement bility Although participated his murder. in the he malice, it also made intent or made no concession defense proof on those rea. the burden a lack of mens While no claim of did not contest remained on essential elements they placed defenses, not as alternative them or raise them in issue at trial.19 overwhelming, guilt was Furthermore, the evidence of eyewitnesses, testimony all of which of numerous it included the Finally, every the evidence was overwhelm- detail. consistent was Cunningham ing done with intent was the murder of 14 510, 2450, SC 61 LE2d 442 U. S. 432) (1991), 1884, 391, over Evatt, 400-401 SC See Yates 264, Estelle, grounds, supra; 265-266 Trenor v. ruled on other 16 Yates, 402. 500 U. S. at (11th Sandstrom, 1985); 442 U. S. at 517. Kemp, see F2d Cir. Davis v. Davis, (6th 1983), aff’d, Koehler, Engle Cir. 707 F2d F2d at 1521. See (“the 1) (1984) prejudicial a Sandstrom instruc effect of LE2d 466 U. S. 1 trial”). largely the defense asserted is a function of tion (where a lack Trenor, asserted is Davis, the defense supra. But 252 Ga. at 265-266 see reversal). kill, requires a Sandstrom instruction of intent malice20 plied he offered no resistance to the but rather com- immediately relinquished with the robbers’ demands and his money, lay prostrate ground, and was shot in the back as he on the gloating killing. Accordingly, with his murderer later about the determine that the Sandstrom error this case was harmless. police

3. A officer testified on behalf of the State that after the spoke occurred, crimes he Tidwell, with Michael who claimed that he persons police knew first names of those The involved. officer also upon testified that based his Tidwell, conversation with he knew the Bridges, first names of however, in Chambless and McClendon. not, Tidwell did testify granted at trial and the trial court the State’s motion prohibiting commenting during limine defense counsel from clos- ing arguments on the State’s failure to call Tidwell as a witness. Morgan applies appeal,22 In State,21 which to this this Court may upon ruled that defense counsel comment the State’s failure to present long competent certain witnesses, so as there is evidence missing knowledge before the witness has of material police testimony and relevant facts. Because the officer’s in this case properly jury, investigating before the and related that while indicating crimes, the officer obtained information from Tidwell Bridges ing Bridges perpetrators, by prohibit- was one of the the trial court erred commenting produce on the State’s failure to Tid- well as a witness. conclude, however,

We that the error is not reversible because it highly improbable jury’s *7 that it contributed to the verdict.23 if Even permitted Bridges the trial court had to comment on the State’s fail- single Tidwell, ure to call comment and the reasonable infer- exculpatory ences to be drawn therefrom would not have been in light overwhelming Bridges’ guilt, of the evidence of which included eyewitness numerous identifications, all of which were consistent.24 prohibited questioning 4. was not witnesses about pending charges against criminal them, and there was no error in the grant trial of the limine State’s motion in such questioning, merely required employ proper which defense counsel to procedures questioning. in such 20 discrepancy There is some in proper inquiry the case law as to whether the on this point overwhelming guilt, overwhelming evidence of evidence of intent and malice. See

Davis, accompanying 725 F2d at n. 10 and text. This Court discrepancy need not resolve this however, appeal, in this overwhelming guilt, intent, as here there exists evidence of malice. 21 (476 747) (1996). 267 Ga. 203 SE2d 22 (422 430) Taylor State, 584, (1992). See v. 262 Ga. 586 SE2d 23 (477 807) Sterling State, 209, See (1996); State, v. 267 Ga. 213 SE2d Crowe v. 265 Ga. (458 799) (1995). 582, 592 SE2d Sterling, supra. See photo- array photographs Having in the used of reviewed 5. identifying Bridges lineup graphic resulted in several witnesses array having crimes, we determine in the been involved suggestive impermissibly cause a substantial likeli- as to was not so deny- did not err in misidentification, thus the trial court hood of pre-trial Bridges’ suppress ing his identification.25 motion to Any of hear- the trial court’s admission associated with 6. error investigators police say was harmless to made Tidwell statements light of other evi- were cumulative fact that the statements in of the hearsay properly admission of state- admitted.26 The that was dence investigators by Bridges’ police harmless father to ments made in guilt.27 overwhelming Bridges’ light evidence unresponsive question, to a witness, in a comment After a 7. juvenile in deten- were held knew while both stated that he directing jury, gave curative instructions tion, the trial court Accordingly, disregard did the trial court it the comment. that not err in should denying Bridges’ motion.28 renewed mistrial Finally, Bridges denied the effective assis- claims that he was 8. repre- upon purported of deficient counsel, instances tance of based denying in his new trial sentation,29 and that the trial court erred hearing, transcript Having trial new motion. reviewed strategic alleged either instances of ineffectiveness were find that the reject Bridges’ prejudice defense,30and we decisions, or caused no to this enumeration. recognize rule,31 error does not the cumulative

9. This State Having appeal. of this to do so under the circumstances we decline found this matter conclusively in the errors made the trial court that each of rights prejudice Bridges’ a fair trial and a con- did not guilt, adjudication are affirmed. his convictions stitutional of error that occurred this multi-count The instances by pro prompt presided hac vice trial us to note that it was over 375, Biggers, v. See Neil 813) (1997). State, Fetty SE2d 268 Ga. Massey See 268 Ga. SE2d App. See Ford (1) failing to cross-examine witnesses about claims counsel was ineffective for (2) failing object improper pending charges; motion in limine criminal to an (3) purported charges; fáiling adequately cross-examine witnesses about deals those (4) testimony given exchange testimony; failing object to that concerned hearing, right At the motion for new trial defense exercise of his to remain silent. *8 (2) (1) reasons; strategic pending for that he did not ask about the counsel testified hamper ability question object motion in limine because it did not his he did not (3) charges; adequately pending did cross-examine witnesses about deals witnesses about he (4) testimony testimony; any exchange com for their he did not believe Bridges’ right to remain silent. mented on 719) (1997). (479 State, See Lamb v. 267 Ga. 464 SE2d 54) (1997). State, SE2d Jenkins Ga. magistrate designated by Magistrate County pur- the Chief of Fulton statutory authority.32 suant to While that fact alone does not raise questions opportunity dimension,33 of constitutional we take this previously by Presiding state, Fletcher, cautioned Justice — potential heightened for trial error harmless and harmful is judicial adequate training experience when without individuals assigned preside complicated felony over and difficult trials.34 While we are convinced that the errors in this matter were alto- gether consequences harmless, different in a different case would judicial actually resources, frustrate the efficient use of thwart would of legislation permitting appointment pro the intent of magistrates. difficulty hac vice Because of the inherent associated complex felony prosecutions, consequences with may and the serious judicial Presiding trials,

stem from error in those we reiterate superior Justice Fletcher’s directive courts would do not well assigning part-time magistrates preside over such trials. Judgment except concur, Benham, J., All the Justices C. affirmed. Fletcher, J, P. who dissent. concurring. Justice,

Thompson, opinion separately, however, I concur in the I the court. write my to voice concerns about the Sandstrom35 error in this case. upon often, All too this Court has been called to determine giving charge particular whether the of a Sandstrom in a case is good why harmless error. There is no reason the court should have to long all, law, undertake this exercise. After has Sandstrom been long charge and this Court has held that a which can construed as be mandatory presumption Accordingly, is error.36 I beseech the trial judges charge of this State to eliminate the from their Sandstrom Simply put, books. is erroneous and should not be given. Presiding dissenting. Justice,

Fletcher, shifting charges I dissent the numerous because burden left guidance appropriate deciding without this case. (b) majority acknowledges In Division 2 that the trial court’s error, on the .burden seven counts is but for way However, harmless. there no this Court to know whether followed the few correct or the court’s erroneous

32 See § OCGA 15-1-9.1. 818) (1995). Massey See Id., 265 Ga. 632 SE2d Const, 637; VI, IV, see Ga. Ga. Art. Sec. Par. I. Montana, Sandstrom v. 442 U. S. 510 See Trenor *9 find that if it “should acquit was authorized felony offenses] [the commit seven did not the defendant (f) Additionally, major- in Division doubt.” beyond violation, which, like the other seven a Sandstrom ity acknowledges material ele- on the proof also shifts the burden charges, erroneous reader, I see no logical a mind being ment of intent.37 Without errors on the fundamental egregious that these way to conclude legal harmless, and, therefore, I burden of element of the state’s would reverse. the mere fact of errors of concern in this case is

Another in this case is so rife with nature. The fact that the record substantial State38 Massey the use of against plea errors reinforces felony cases. complex to conduct magistrates joins Chief Justice Benham this I am authorized to state that dissent. 24, 1997.

Decided November Gaul, D. Jonathan for appellant. Howard, Greenberg, Carl P Assistant Attorney,

Paul L. District General, Baker, K. Attorney E. Paula Attorney, District Thurbert General, Smith, Goldberg, Allison B. Assis- Attorney Senior Assistant General, tant Attorney appellee. ICHAUWAY, INC.

S97A1074. GIVENS v. (493 SE2d Justice. Hines, Research Inc., Ecological d/b/a W. Jones Ichauway, Joseph Givens from on real (“Ichauway”), enjoin trespassing Center sued Creek, leases, Ichauway Ichauwaynochaway property specifically leases the land through Ichauway’s Ichauway which flows leasehold. length creek for 14 miles of its and conducts eco- on both sides of the the stream a dam was research on the stream. At one logical point it is no years ago generate electricity. Although installed some pas- the dam remains and blocks the purpose, used for that longer sage boats. He summary judgment Ichauway. appeals grant

Givens through that he has the to float down the creek right contends property. Montana, Sandstrom 818) (1995) (Fletcher, J., concurring specially). 265 Ga. 632