S97A1659. FLEMING v. THE STATE.
S97A1659
SUPREME COURT OF GEORGIA
DECIDED MARCH 16, 1998
RECONSIDERATION DENIED APRIL 1, 1998
497 SE2d 211
HUNSTEIN, Justice.
The habeas court and the majority purport to find other instances of ineffectiveness on the part of Christenson‘s trial counsel. I submit that all of these instances evidence the unauthorized second-guessing of trial counsel‘s tactical decisions and the application of an erroneous presumption that those tactical decisions were ineffective merely because they were unsuccessful. The fundamental error in the habeas court‘s order which the majority perpetuates is in this failure “to eliminate the distorting effects of hindsight....” Strickland v. Washington, supra at 689 (III) (A). The law of this state authorizes the imposition of the death penalty for the crime of murder and there are some murder cases in which that penalty is authorized “[e]ven if many reasonable lawyers would not have done as defense counsel did at trial. . . .” Rogers v. Zant, supra at 386. In my opinion, this is one of those cases. Therefore, I respectfully dissent.
I am authorized to state that Justice Hunstein joins in this opinion.
DECIDED MARCH 16, 1998 — RECONSIDERATION DENIED APRIL 1, 1998.
J. Gray Conger, District Attorney, Chattahoochee Circuit, Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Paige R. Whitaker, Assistant Attorney General, for appellant.
Jimmy D. Berry, for appellee.
HUNSTEIN, Justice.
Maurice Fleming was sentenced to life imprisonment for the felony murder of Robert Franklin Hodges.1 Finding no reversible error,
1. Evidence adduced at trial authorized the jury to find that appellant had talked with others about robbing the victim‘s grocery store some weeks before October 8, 1993. On that day, appellant and Cedric Brown discussed the need to leave town due to the fact that both men had failed to appear at a scheduled court hearing that morning and knew bench warrants had issued for them. The two men, together with Jamel Jenkins and Shawn Brown, decided to rob the victim‘s grocery store to obtain money to leave town. The four men went to the store in a car driven by Terry Roberts. Cedric Brown was armed with a brown Titan .25 calibre pistol; Jenkins used a chrome or nickel plated .25 pistol with a white grip, which appellant had taken from a cousin. Roberts parked the car behind the store and remained with it while appellant and the other three men went into the store. The men left after finding too many people in there. While waiting for the store to empty out, Cedric Brown discussed the need to kill the victim because he would be able to identify them. Thereafter, appellant and the other men returned and reentered the store. Cedric Brown demanded money from the victim and both he and Jenkins shot the victim after the man refused to comply. The victim died of five gunshot wounds to his head, neck and upper shoulder which were inflicted by two separate .25 calibre pistols. Money, food stamps, personal checks and toiletries were stolen from the store. The four men returned to the car and Roberts drove away while Cedric Brown divided the money taken from the store. Appellant received $180. Roberts drove them to Savannah where appellant, Cedric Brown, and Jenkins fled by bus to Miami, Florida. After Roberts turned himself in to police the next day, Georgia and Florida law enforcement authorities tracked appellant and the others to a motel in Opa-Locka, Florida. A food stamp issued to a Riceboro resident who traded at the victim‘s store was found in appellant‘s motel room.
In his statements to the police, appellant admitted he knew about the armed robbery plan before he went to the grocery store and heard the discussion about killing the victim before he returned to the grocery store the second time. Although in his first statement appellant claimed he was only “pushing the door open” when Cedric Brown demanded money from the victim and fired the first shot, when confronted with the inconsistencies in his statement (namely, his description of items that could not have been viewed by someone in the doorway), appellant admitted in his second statement that he
We find this evidence sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of felony murder with armed robbery as the underlying felony. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. In the only enumerated error argued orally before this Court, appellant contends that the trial court committed reversible error when it failed to give the jury his written request No. 13, that a conviction cannot be had on the uncorroborated testimony of an accomplice. See
3. Because appellant was not convicted of malice murder and not sentenced to death or life without parole, the following enumerations are moot: 10, 14-18, 22, 23, 25, 26, 28-42, 44-55, 57-72, 93, 95, 97, and 100.
4. We find no abuse of the trial court‘s discretion in denying appellant‘s pretrial motion for recordation of grand jury proceedings, see Frazier v. State, 257 Ga. 690 (6) (362 SE2d 351) (1987), or motion for daily transcripts of the proceedings. See McKenzie v. State, 248 Ga. 294 (2) (282 SE2d 95) (1981). In nine enumerations appellant challenges the trial court‘s denial of various pretrial defense motions regarding information possessed by the prosecution.2 The record reveals that the trial court granted appellant‘s motion for disclosure of all information favorable to the defense and found in other orders that the defense had been provided all exculpatory material from the police reports as required by Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).3 Appellant has not shown how he was harmed by the trial court‘s ruling on any of these motions. See Hill v. State, 248 Ga. 304 (2) (283 SE2d 252) (1981). Accordingly, we find no merit in these enumerations.
6. We have carefully reviewed the record in regard to the State‘s use of its peremptory strikes to remove nine African-Americans from the jury and find no error in the trial court‘s ruling that the State‘s reasons for its strikes were concrete, tangible and racially neutral. See generally Russell v. State, 267 Ga. 865 (2) (485 SE2d 717) (1997). In specific, we note that seven of the jurors were struck based on their stated aversion or indecision to rendering a judgment or imposing a sentence of death, see Tharpe, supra, 262 Ga. at 112 (6), and the remaining two jurors were struck due to the criminal entanglements or convictions of family members. See Henry v. State, 265 Ga. 732 (2) (462 SE2d 737) (1995).
7. In several related enumerations, appellant challenges argument by the prosecutor and the admission of testimony by appellant‘s cousin and a statement by appellant regarding the theft of the .25 calibre pistol from the cousin‘s home. Initially, we note that the prosecutor‘s failure to include the cousin on the State‘s witness list was remedied by the trial court allowing the defense to interview the cousin before the testimony was given and thus the trial court did not abuse its discretion in allowing the cousin to testify. See Berry v. State, 268 Ga. 437, 440 (490 SE2d 389) (1997). As to the evidence itself, we find no abuse of the trial court‘s discretion in admitting testimony that the cousin‘s pistol, a weapon of the same type and identical appearance to the murder weapon Jenkins received from appellant, was taken shortly after appellant gained access to the weapon at the cousin‘s home, since this evidence was clearly relevant at appellant‘s trial to show where the murder weapon came from. The
8. Appellant challenges two evidentiary rulings by the trial court.
(a) The trial court properly refused to allow appellant to cross-examine witness Garman regarding a document the witness did not prepare and did not know about where the purpose of the cross-examination was to impeach the witness, not refresh his recollection.
(b) Contrary to appellant‘s contention, Officer Moran‘s testimony regarding the reason why he reinterviewed appellant constituted testimony regarding a fact, not an inadmissible statement of opinion. This being appellant‘s sole objection to this evidence, we find no error in the admission of the officer‘s testimony. See generally Barber v. Gillett Communications, 223 Ga. App. 827, 830 (479 SE2d 152) (1996).
9. Appellant did not invoke his right to counsel for Fifth Amendment purposes when he completed a financial form requesting the appointment of an attorney for Sixth Amendment purposes. State v. Hatcher, 264 Ga. 556 (448 SE2d 698) (1994). Accordingly, the trial court did not err by admitting appellant‘s statement made after the form was completed.
10. There was no error in the use of written transcripts of oral recorded statements to aid the jury in understanding the tapes. Contrary to appellant‘s contention, the record reveals that the transcripts were not admitted into evidence.
11. Given the parties’ stipulation that a bench warrant was issued for appellant on the day of the murder when appellant missed a court hearing that same morning, the prosecutor‘s statement in closing that appellant had received notice of the scheduled hearing prior to the hearing date was a reasonable inference from the evidence. The allowance of this argument was not error. See Johnson v. State, 258 Ga. 856 (6) (376 SE2d 356) (1989).
12. Under the facts in this case, the trial court did not err by giving a charge on conspiracy.
Judgment affirmed. All the Justices concur, except Benham, C. J., who dissents.
Because the majority opinion holds that the trial court did not commit reversible error in failing to give Fleming‘s requested charge on the necessity of corroboration of an accomplice‘s testimony, I must dissent to the affirmance of Fleming‘s conviction.
Fleming requested in writing a charge on the principle that a conviction cannot be had on the uncorroborated testimony of an accomplice. See
The majority opinion ignores both an important and applicable principle of law and a key difference between this case and the co-indictee‘s case. In so doing, the majority opinion weakens the statutory principle on which Fleming‘s request to charge is based.
The principle ignored by the majority opinion is that the jury could have chosen to disbelieve the corroborating evidence, including Fleming‘s confession. “‘The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant‘s guilt is peculiarly a matter for the jury to determine. [Cit.]’ ” Bush v. State, 267 Ga. 877, 878 (485 SE2d 466) (1997). Thus, the mere fact that there is other evidence which could serve as corroboration does not dispense with the need for the requested charge because the jury, as the exclusive judges of credibility, could have rejected the other evidence and convicted solely on the accomplice‘s testimony.
The key difference between this case and the one chiefly relied upon by the majority opinion (Jenkins v. State, 268 Ga. 468 (9) (491 SE2d 54) (1997)), is that, although the opinion in that case does not say so, the record of that case shows that Jenkins did not request a charge on corroboration. Thus, Lanford v. State, 148 Ga. App. 377 (2) (251 SE2d 395) (1978), cited in the Jenkins opinion, was appropriate authority there, holding that when “the state does not rely wholly on the evidence of the accomplice to connect the defendant to the crime charged, it is not incumbent without request to charge on corroboration. [Cit.]” (Emphasis supplied.) That holding, and the holding in Jenkins quoted in the majority opinion, are not, however, appropriate authority in this case because Fleming‘s counsel did request the charge.
The phrasing of the majority opinion‘s holding, and the phrasing in Jenkins, do violence to the statutory principle in aid of which the requested charge should be given. The majority holds that there is no need for the charge “where the State relies on other evidence, including a defendant‘s confession, apart from the accomplice‘s testimony.” The case cited in Jenkins in support of that proposition (other than
The proper rule applicable to this case, consistent with the holding in Hall, is that a requested charge on the principle in
DECIDED MARCH 16, 1998 — RECONSIDERATION DENIED APRIL 1, 1998.
Ray C. Smith, for appellant.
Dupont K. Cheney, District Attorney, J. Thomas Durden, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula Κ. Smith, Senior Assistant Attorney General, Allison B. Goldberg, Assistant Attorney General, for appellee.