Lead Opinion
Appellant Christopher D. Chance and his co-indictee Raymond Trey Sapp were separately tried for the malice and felony murder of Simpson Tyrone Cates and for other offenses. Appellant was found guilty of criminal attempt to possess cocaine and possession of a firearm during the commission of a crime, but the jury acquitted him of malice murder and was unable to reach a verdict on felony murder. On retrial, Appellant was found guilty of felony murder during the commission of criminal attempt to possess cocaine. The trial court entered judgments of conviction and sentenced Appellant to life imprisonment for felony murder, a concurrent five-year term for the drug offense, and a consecutive five-year term for the weapons offense. After Sapp’s separate trial, he was convicted of the same offenses, the convictions for felony murder and the firearms count were affirmed on appeal, and the conviction on the drug charge was vacated. Sapp v. State,
1. Appellant contends that the evidence was insufficient and that the trial court therefore should have directed a verdict of acquittal on the felony murder count. Construed most strongly in support of the verdicts, the evidence shows that Appellant regularly purchased illegal drugs from the victim’s cousin Carlos Pressley on a particular rural dirt road. After Pressley arranged for the victim to make a sale of cocaine to Appellant at the same location, Appellant and Sapp arrived there in a pickup truck and stopped next to the victim’s vehicle. Appellant fatally shot the victim in the head with a shotgun through Appellant’s open driver’s side window. Although Appellant
Appellant argues that the inherent dangerousness required for felony murder is not present in the underlying felony of criminal attempt to possess cocaine, because the victim, and not Appellant, was the distributor of the cocaine, and because the shotgun was in Appellant’s vehicle during hunting season for hunting purposes.
“[T]he only limitation on the type of felony that may serve as an underlying felony for a felony murder conviction is that the felony must be inherently dangerous to human life. For a felony to be considered inherently dangerous, it must be ‘ “dangerous per se” ’ or it must ‘by its circumstances create a foreseeable risk of death.’ ‘In determining whether a felony meets that definition, this Court does not consider the elements of the felony in the abstract, but instead considers the circumstances under which the felony was committed.’ ” [Cit.]
Chua v. State,
The evidence was sufficient for a rational trier of fact to find Appellant guilty beyond a reasonable doubt of all of the crimes for which he was convicted. Jackson v. Virginia,
2. In his argument regarding the sufficiency of the evidence, Appellant further asserts that the trial court should have given his requested instructions regarding inherent dangerousness. However,
*243 [t]he trial court was not required to give an instruction regarding foreseeable risk. In fact, “recent precedent from this Court clearly holds that a trial court’s refusal to give an ‘inherent dangerousness’ instruction, even whenitwasrequested, did not constitute error.” [Cit.] Given our clear precedent that an instruction on inherent dangerousness is not required, we determine that the trial court’s [failure to give Appellant’s requests could] not constitute [reversible] error. (Emphasis omitted.)
Davis v. State, supra at 762 (5) (b). Although Appellant also cursorily complains of the trial court’s responses to the jury’s questions regarding felony murder, trial “counsel affirmatively approved of the trial court’s handling of the issue. Any error was thus induced and any claim of error waived on appeal. [Cit.]” Konecny v. State,
3. Appellant contends that the trial court erred in failing to remove a juror who, after jury selection and before the panel was sworn, was telephoned by assistant district attorney Hank Syms and was asked to be in his wedding.
“When irregular juror conduct is shown, there is a presumption of prejudice to the defendant, and the prosecution carries the burden of establishing beyond a reasonable doubt that no harm occurred. . . . ‘(W)here the substance of the communication is established without contradiction, the facts themselves may establish the lack of prejudice or harm to the defendant.’ ” [Cit.]
Jones v. State,
Syms was not involved in the trial of this case. During jury selection, the juror stated that Syms was a longtime friend. On voir dire after the telephone call, the juror testified without contradiction that, when Syms found out about the jury duty, he told the juror that he could not really talk, asked the juror to be in his wedding, stated that he could not talk any more that week, and quickly terminated the
Thus, “[t]he record before us discloses no basis upon which to conclude that the trial court’s failure to excuse this juror violated [Appellant’s] right to an impartial jury or prejudiced his defense.” Pinkins v. State, supra at 741 (3). Assuming that the conversation was improper, the prosecutor rebutted any presumption of harm, and Appellant has failed to show that the conduct rendered the verdict inherently without due process or was so prejudicial that it contributed to his conviction and made the trial fundamentally unfair. Smith v. State, supra at 782-783 (2). As the contact “was not an attempt to discuss the merits of the case or influence the juror, [A]ppellant was not harmed by the improper communication . . . .” Jones v. State, supra.
Accordingly, “[t]he trial court did not abuse its discretion in refusing to remove the juror.” Pinkins v. State, supra.
4. Appellant also contends that the trial court erroneously granted a motion in limine made by the State to exclude certain demonstrative evidence. Appellant’s proffer consisted of a series of photographs showing various possible reenactments of the homicide based on evidence indicating that the victim’s driver’s side door was open because its window could not easily be and was not lowered.
The “use of a reenactment is a matter for the trial court’s discretion, [and] the party seeking to use it must show that it is a fair and accurate representation of the events sought to be depicted. [Cit.]” Pickren v. State,
5. Appellant urges that the trial court erred in admitting the opinion testimony of Agent Catherine Sapp regarding the position of the shooter and blood spatter patterns, over trial counsel’s objection that the opinion was not disclosed as required by OCGA § 17-16-6 either during discovery or at the first trial.
Excluding evidence pursuant to OCGA § 17-16-6 “is a particularly ‘ “harsh sanction and should be imposed only where there is a showing of prejudice to the defense and bad faith by the State.” (Cits.)’ [Cit.]” Higuera-Hernandez v. State,
6. Appellant claims that a new trial is required because of newly discovered evidence in the form of testimony by Joy Bradham which was not available to defense counsel before trial and would have changed the outcome of this case. At the motion for new trial hearing, Ms. Bradham testified that Appellant’s co-indictee Raymond Trey Sapp confessed to her on more than one occasion that he shot the victim to protect Appellant from the victim pulling a gun.
We have held that a new trial may be granted based on newly-discovered evidence only where the defendant shows each of the following: “(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the*246 want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.” [Cit.] “Failure to show one requirement is sufficient to deny a motion for a new trial.” [Cit.] (Emphasis in original.)
Davis v. State,
7. Appellant further contends that his trial counsel rendered ineffective assistance in three respects. To prevail on this contention pursuant to Strickland v. Washington,
(a) Appellant complains that defense counsel failed to object to the trial court’s exclusion of a 20-year-old conviction of a witness for the State without conducting the balancing test required by OCGA § 24-9-84.1 (a) (1). At the hearing on the motion for new trial, counsel explained that he did not believe that it was a sufficient issue to pursue or that there was any substantial likelihood that the conviction would be admitted. “The decision whether to impeach a witness through introduction of certified copies of prior convictions is a matter of trial strategy. [Cits.]” Lewis v. State,
(b) Appellant claims that his attorney at trial was ineffective in asking Sapp’s father if he told Appellant to get his story straight and hide the gun. Trial counsel testified that he was using the testimony of Sapp’s father to shift responsibility to Sapp. Indeed, this evidence could be understood as an attempt to protect Sapp. “Decisions about what questions to ask on cross-examination are quintessential trial strategy, [cit.] ...Payne v. State, supra at 697 (3) (b). “The scope of cross-examination is grounded in trial tactics and strategy, and will rarely constitute ineffective assistance of counsel. [Cit.]” Simpson v. State,
(c) Appellant also claims that his trial counsel was ineffective in stipulating to negative scientific test results with regard to the intoxication of the victim and not requiring the State to produce the persons who conducted the lab tests which were used at trial, even though the Confrontation Clause requires that such persons be present to testify because lab reports are testimonial in nature. Counsel testified that the test results were not an issue and were not “where the fight was.” In short, the test results were not inconsistent with Appellant’s defense. See Wilcox v. State,
Judgments affirmed in part and vacated in part.
Notes
The crimes occurred on November 29, 2008, and the grand jury returned a joint indictment on February 12, 2009 and a re-indictment on March 15, 2010. The jury at Appellant’s first trial found him guilty on April 24,2010. The jury at his second trial found him guilty on June 11, 2010, and, on that same day, the trial court entered the judgments of conviction and sentences. The motion for new trial was filed on July 19, 2010, and the out-of-time motion for new trial was granted on September 14, 2011. The amended motion for new trial was filed on September 23, 2011 and denied on November 22, 2011. On the same day as that denial, Appellant filed the notice of appeal. The case was docketed in this Court for the April 2012 term and submitted for decision on the briefs.
Concurrence Opinion
concurring specially.
I concur in the result reached by the majority. I write separately only to note my growing concern about our treatment of the issue raised in Division 2, regarding the trial court’s refusal to give a jury instruction on the “inherent dangerousness” of the offense underlying the felony murder conviction. Justice Nahmias has previously written at length regarding his concerns on this issue, see Shivers v. State,
As also noted by Justice Nahmias, if this Court determines that a given class of offenses is dangerous as a matter of law, then the issue of inherent dangerousness need not be submitted to the jury and no jury instructions in that regard are necessary. See Shivers, supra,
Though this Court has declined to hold that “every delivery or distribution of a controlled substance that results in death can support a felony murder conviction,” Hulme v. State,