CALDWELL v. THE STATE.
S18A0640
Supreme Court of Georgia
June 18, 2018
304 Ga. 51
HINES, Chief Justice.
FINAL COPY
OPINION
HINES, Chief Justice.
Walter Caldwell appeals his conviction and sentence for felony murder while in the commission of aggravated assault in connection with the beating death of his girlfriend‘s fifteen-month-old daughter Tynisha Carlton. His sole chаllenge is to the trial court‘s refusal to strike three potential jurors for cause. Finding the challenge to be without merit, we affirm.1
The evidence construed in favor of the verdicts showed the following. On March 2, 2009, Caldwell was living with Mildrеd Carlton and her baby daughter
The following morning, and after Carlton had given a statement to police, Caldwell called Carlton from a payphone in the Albany area. Caldwell stated “by now you know that she‘s dead.” When Carlton asked what had happened, Caldwell stated that the television had fallen on Tynisha, he got the television off of her, put some Neosporin on her, and rocked her to sleeр. He further stated
Following the money wire, Cаldwell asked Carlton to meet him at Underground Atlanta to talk. Carlton informed police of the planned meeting so that they could arrest Caldwell. When Carlton and Caldwell began to leave Underground Atlanta, Carlton waved down police. Caldwell walked over to the police car and stated, “I killed her child last night.” He was transported to the police station; there he waived his Miranda2 rights and made a statement. Caldwell denied striking Tynisha, stated the television fell on her, and that he “blacked out“; he admitted to choking Tynisha but believed she was still alive after he choked her.
1. Caldwell does not challenge the legal sufficiency of the evidence of his guilt. Nevertheless, in accord with this Court‘s general practice in appeals of murder cases, we have reviewed the record and conclude that the evidence at trial was sufficient to enable a rational trier of fact to find Caldwell guilty beyond a reasonable doubt of the crime of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2. During jury selection, Caldwell moved unsuccessfully to have prospective Jurors 12, 31, and 35 removed for cause. The trial court found that еven though the objected-to members of the venire said that it might be difficult, they would try to be fair and do their best. It appears that prospective Jurors 12 and 35 were peremptorily stricken from the panel, and that Jurоr 31 was selected as an alternate but did not serve on the jury. Caldwell argues that the record on voir dire demonstrates that all three individuals indicated they could not be fair and were not rehabilitated, and even if thеy were, the rehabilitation was accomplished by improper leading questions from the State.
First, the trial record fails to disclose how, when, or by whom prospective
It is true that defendants are not required to exhaust their peremptory strikes as a condition of establishing harm. But if the prospective juror is removed without any use of peremptory strikes by the defense, as where the State exercises a peremptоry strike to remove the juror, any error in the trial court‘s refusal to strike the juror for cause is harmless because the removal of the juror did not cost the defense any peremptory strike. Nwakanma v. State, 296 Ga. 493, 500 (5) (768 SE2d 503) (2015) (citations omitted). Inasmuch as Caldwell has failed to demonstrate from the trial record that prospective Jurors 12 and 35 were struck from the panel through his, rather than the State‘s, exercise of peremptory strikes, he has not established any harm from the trial court‘s refusal to strike those prospective jurors for cause. Id.
In any event, even assuming that the exercised peremptory strikes were
Examination of the totality of the voir dire of prospective Jurors 12, 31, and 35 reveals that during the general questions the panel was asked if because of the nature of the alleged crimes on trial, anyone would be unable to fаirly and objectively hear the case, and none of the members of the venire, including the individuals now challenged, responded in the affirmative. Furthermore, during individual voir dire, while the subject jurors related some circumstanсes and reservations raising the possibility of bias, each juror also expressed the willingness to be fair and impartial. As has been noted, it was for the trial court to resolve any equivocal or conflicting responses given during voir dire. Thorpe v. State, supra at 606 (3). Regarding the claim that the trial court‘s ultimate determination was the result of the State‘s improper use of leading questions during the voir dire, the record discloses that Caldwell never objected to the State‘s voir dire questions as improper. Kass v. State, supra at 155 (2). In fact, when asked by the trial court following jury selection if there were any
Simply, therе is no showing that the trial court manifestly abused its discretion in refusing to excuse the challenged jurors for cause. Carter v. State, supra at 686 (2).
Judgment affirmed. All the Justices concur.
Decided June 18, 2018.
Murder. Fulton Superior Court. Before Judge Shoob.
Kenneth D. Kondritzer, for appellant.
Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, David K. Getachew-Smith, Sr., Assistant District Attorneys; Christopher M. Carr, Attorney General, Patriciа B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ashleigh D. Headrick, Assistant Attorney General, for appellee.
