Niko Fisher, Bryant Lynch and Shammi Jadooram appeal after a jury found them guilty of numerous charges, including armed robbery, aggravated assault, false imprisonment, kidnapping, theft by taking and possession of a firearm during the commission of a crime. After reviewing the records we find no error and affirm.
The evidence at trial, taken in the light most favorable to the verdict, was that there were two armed robberies of convenience stores that occurred within twelve hours of each other. The participants in the first robbery were Lataliyia Ford, Mark Scott, T. J. Baugh, and Aleakeem Petersen. The participants in the second robbery were Ford, Petersen, Jadooram, Niko Fisher and his brother Jomandi.
The first robbery occurred when Petersen, armed with a gun, and Scott went into the Get N Fly convenience store while Ford and
At some point, Scott and Baugh left the house and Jadooram, Lynch, Niko Fisher and Jomandi Fisher arrived. According to Ford, they began shooting dice and decided to go get “some more money.” Ford, Jadooram, Lynch, Niko Fisher, Jomandi Fisher and Petersen went to Jadooram’s house. Jadooram and Petersen went inside and came back with guns.
Ford and Jomandi Fisher stayed in the car while Petersen, Niko Fisher, J adooram and Lynch went to the Kangaroo convenience store. David Padgett, one of the victims, noticed the four men behind the store, all dressed in black, as he went into the store. Padgett told the cashier, Reba Knox, about the men, and Knox, Padgett, and Michael Hammack, a customer, went outside to see what was happening. The four men came up to Knox, Padgett and Hammack and forced them back into the store at gunpoint. They forced Padgett and Hammack to the floor, then took Hammack into a back room and stole his wallet. They told Knox to open the cash register. As she was trying to do so, she heard a gunshot and saw Padgett fall to the floor. Knox said that the man who shot Padgett came over to stand beside her, said “y’all think I’m playing with y’all?” and then fired the gun, grazing her neck. Three of the men took money out of the register and then all four left, taking Knox with them. The men forced Knox to get into Hammack’s car and drove away. They pulled into some apartments, let Knox go, left Hammack’s car, and got into the black Cadillac that Ford was driving. Jomandi Fisher testified that when he and Ford picked up Lynch, Jadooram, and Niko Fisher after the robbery, Lynch told them that Jadooram was the one who shot the victim.
Padgett testified at trial and said that he was shot before the men left the store with Knox. He stated that he crawled to the back of the store where the robbers had left Hammack and told Hammack that the men had gone. Padgett said that he suffered a gunshot wound to his spine, causing permanent paralysis.
The State presented evidence that the defendants stole a black bag from the Volvo belonging to Hammack, and also played a store surveillance tape for the jury. There was testimony that officers found ski masks, black stockings, and a .38 revolver in a bag hidden under a shed next to Jadooram’s house.
Niko Fisher was the only one of the defendants to testify at trial. He stated that although at first he went along with the decision to commit the robbery, he did not want to go through with it after they arrived at the Kangaroo store. Fisher said that Jadooram handed him a gun and when Fisher told him that he did not want to do it,
Although not enumerated as error, the evidence, as set out above, was sufficient for a rational trier of fact to find appellants guilty beyond a reasonable doubt of the charged offenses. Jackson v. Virginia,
Case No. A12A0976
1. In this case, Niko Fisher argues that he did not receive a full panel of qualified jurors at which to direct his peremptory strikes. He contends that the trial court erred in not granting appellants’ motions to excuse jurors Hughes and Franklin for cause.
The transcript shows that following voir dire of the first panel, all three defense counsel moved to have jurors Donehoo, Franklin and Hughes removed for cause. Donehoo stated that his aunt worked with Padgett’s aunt; he had heard the case being discussed; and, he had also read about the case in the newspaper. Franklin stated that he had followed the case in the news and had been threatened at his place of business by someone who said he was going to kill him. When asked if he would have difficulty deciding this case because of that incident, Franklin responded, “A little bit.” Hughes said that she worked with Padgett’s aunt and she was not sure that she could be impartial.
The court then questioned those three jurors outside the presence of the panel. The court questioned juror Donehoo first. The judge asked him if he could make a decision based on the law and the facts in the case. Donehoo replied “I’ve already kind of got my mind made up.” The judge pointed out that a juror’s duty was to listen and determine whether the State met its burden of proving that the defendants were responsible for the injury. Donehoo replied, “in my head, they’re already guilty.” The judge excused Donehoo but lectured him on his duties as a citizen.
The judge then talked to juror Hughes and asked her if she could weigh the evidence and make a decision based upon the evidence and the law. Hughes replied, “I think I could.” The judge asked juror Franklin the same question, and he replied that he could be fair and that he could carry out his duty as a juror to weigh the evidence and not show favoritism.
The decision to strike a potential juror for cause lies within the sound discretion of the trial court, and before a potential juror is so excused, it must be shown that the individual holds an opinion of the defendant’s guilt or innocence that is so fixed and definite that the individual will not be able to set the opinion aside and decide the case based upon the evidence and the court’s instructions.
Higginbotham v. State,
In this case, although appellants claim that Hughes and Franklin were intimidated by the trial court’s reprimand of juror Donehoo, there is no evidence of that. As appellants acknowledge, there was no “browbeating” of jurors Hughes and Franklin, see Doss v. State,
Accordingly, because the record does not show that Hughes’s and Franklin’s opinions were so fixed and definite that they could not be changed by the evidence and the charge of the court upon the law, we cannot say that the trial court abused its discretion in declining to .strike these jurors for cause. See Patterson, supra.
2. Next, Fisher argues that the trial court improperly limited voir dire. The transcript shows that defense counsel were still questioning the first panel after an hour and ten minutes had elapsed. The trial court stated: “Every one of you deserves to have a right to ask pertinent questions that you want to ask the jury panel, but you need to ask questions one time.” “[S]ome of them [questions] you have to ask again, I understand, but... ask whatever pertinent question you
There was nothing improper in the trial court’s instruction to defense counsel and defense counsel were not prevented from asking any questions they chose; the trial court merely stated that counsel were not to ask the same questions that had already been asked and answered. Fisher cites Lane v. State,
That is not the case here. The court did not limit the number of questions counsel could ask nor did it curtail further inquiry.
3. Fisher next argues that the prosecutor made an improper “golden rule” argument. The record shows that during closing argument, the prosecutor described what the victims Hammack, Padgett and Knox must have felt during the robbery, the shooting and the kidnapping. The prosecutor then stated: “what we can do is make sure that the people, each and every one of them that participated in that, are responsible for what happened because let me tell you[,] that could have been you, that could have been me, and that could have been our children that walked into that store.”
Defense counsel objected and moved for a mistrial. The trial court denied the motion for mistrial but gave curative instructions as follows:
During the State’s closing argument, Ms. Heidmann made reference to these events that have occurred allegedly in this indictment and that it could have affected her or yourselves or your children. That is an improper argument under the law. You are not to place yourself, your family, or any other person in the place of the actual victims in this case, and you should not consider that in your deliberations. Your concern here is to decide whether or not the State has proven the guilt of these defendants beyond a reasonable doubt and not to make a decision based upon sympathy or any reference to yourselves. It is totally improper for a juror to put themselves in the place of the victim or a named victim in a case.
4. Fisher argues that the trial court erred in denying his motion to sever his case from that of the other defendants. Fisher contends that he did not participate in the first robbery at the Get N Fly store which gave rise to the charges in Counts 18,19, and 20, and therefore he was harmed because of the confusion and prejudice resulting from evidence of that robbery. We disagree.
It is not an abuse of discretion in the interest of justice for the judge to refuse a motion for severance of the trial of multiple charges where the crimes alleged were part of a continuous transaction conducted over a relatively short time, and from the nature of the entire transaction, it would be almost impossible to present to a jury evidence of one of the crimes without also permitting evidence of the other.
Stewart v. State,
Further, the burden is on appellant to show prejudice, and he “must do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.” (Punctuation omitted.) Owen v. State,
5. Fisher also argues that the trial court erred in recharging the jury outside of his presence. The record shows that the trial judge was summoned to the jury room because the jurors’ discussion was
This issue was not preserved for appeal. Within the Georgia constitutional right to the courts is a criminal defendant’s “right to be present, and see and hear, all the proceedings which are had against him on the trial before the Court.” Wade v. State of Ga.,
Case No. A12A0977
6. In this case, Bryant Lynch contends that the trial court erred in not excusing jurors Hughes and Franklin for cause. This claim has already been addressed in Division 1 of Case No. A12A0976.
7. Next, Lynch argues that the trial court erred in denying his challenge to the array of the jury panels. The record shows that after the third panel of jurors was brought into the courtroom, counsel challenged the array of the jurors, stating that “there were only four black jurors brought up before this panel,... and none of them were of the age group or the gender of these defendants.”
The accused may, in writing, challenge the array for any cause going to show that it was not fairly or properly impaneled or ought not to be put upon him. The court shall determine the sufficiency of the challenge at once. If sustained, a new panel shall be ordered; if not sustained, the selection of jurors shall proceed.
OCGA § 15-12-162.
[Appellant] misperceives the law. While traverse jury lists must consist of a representative and fair cross-section of the community to the fullest extent possible, the same is not true of an array. Provided that persons are not systematically excluded on the basis of race or other cognizable grouping, and provided that the jurors comprising a panel are randomly selected from a representative pool, the selection process is not inherently defective.
Id.
The defendant has the burden of proving purposeful discrimination in the jury array. Pruitt v. State,
Case No. A12A0978
8. In this case, Shammi Jadooram appeals. He raises two enumerations that were previously addressed; specifically, that the trial court erred in limiting voir dire, and also erred in refusing to grant a mistrial following the prosecutor’s “golden rule” argument made during closing. These arguments were addressed in Divisions 2 and 3 in Case No. A12A0976.
9. Next, Jadooram argues that the trial court erred in refusing his motion to sever his case from that of his co-defendants. He argues that there was no common scheme or plan and therefore his motion should have been granted.
As previously discussed in Case No. A12A0976, the crimes that were the basis of the trial in this case were two armed robberies of convenience stores, using masks and occurring just hours apart. As in that previous case, Jadooram does not show “clear prejudice” from the refusal to sever, but argues only that there was a substantial likelihood that the jury would confuse or misapply the evidence in a joint trial. See Owen, supra at 314. Accordingly, we conclude that the trial court did not err in denying the motion to sever.
The trial court did not, however, suppress the mask and gun found in the black bag or the shotgun found in the drainage ditch, concluding that Jadooram had no expectation of privacy in the neighbor’s shed or in the drainage ditch. Further, the trial court properly held that nothing found in Jadooram’s house pursuant to the invalid search warrant led officers to the bag or the gun, and therefore the items were not fruit of the poisonous tree.
Counsel argued that the search of the residence established that Jadooram “had at least some presence at that residence.” But officers already knew that Jadooram lived there. Accordingly, Jadooram has not shown that the bag and gun were discovered as a result of any evidence found in the house and later suppressed. See Leftwich v. State,
Further, “[t]he burden is on the defendant to show that he has standing to contest the alleged violation, i.e., that he has a legitimate expectation of privacy.” (Punctuation omitted.) Johnson v. State,
As to the gun found in the drainage ditch, “a defendant who abandons seized property lacks standing to challenge the validity of the search and seizure.” (Punctuation omitted.) Johnson, supra at 638. See also Simmons v. State,
11. In his last enumeration of error, Jadooram contends that trial counsel was ineffective for failing to object to the judge’s conversation with the jury and the recharge of the jury outside his presence. Jadooram claims that counsel should have objected to the exchange
[I]n order to prevail on his claim of ineffective assistance, [Jadooram] must show that his attorney’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of his trial would have been different; he also must overcome the strong presumption that his attorney’s conduct fell within the broad range of reasonable professional conduct.
Smith v. State,
A defendant has the constitutional right to be present
at any stage of a criminal proceeding that is critical to its outcome if [his or her] presence would contribute to the fairness of the procedure.... [A] critical stage in a criminal prosecution is one in which a defendant’s rights may be lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some other way.
(Punctuation omitted.) Huff v. State,
In general, a trial judge should not communicate with the jury without all parties present in open court. The better practice is for the judge to have no communication with the jury on any subject except through the medium of the sworn bailiff in charge of the jury; and the communication should be restricted, in the absence of the accused and his counsel, to matters relating to the comfort and convenience of the jury. There should be no communication which would tend in any manner to prejudice the accused.
(Punctuation omitted.) Chandler v. State,
(case no. A12A0976).
(case no. A12A0977).
(case no. A12A0978).
Trial counsel testified at the hearing on the motion for new trial that he did not object because the issue did not appear to be substantive or to be one that would affect the trial. He stated that it appeared to be more in the way of an emergency matter that involved security. Jadooram has not suggested that the recharge was incorrect nor has he shown that, had he been present or had counsel objected, the matter would have been dealt with differently. See Chandler, supra at 80. There was no error.
Judgment affirmed.
Notes
These seven were the original defendants in the case. Scott’s motion to sever was granted, and Ford and Jomandi Fisher pled guilty. Of the four that went to trial, Lynch, Jadooram, and Niko Fisher have appealed in these consolidated cases.
The affidavit did list the correct address, but due to a scrivener’s error, the address was not listed on the search warrant.