Lead Opinion
Rodriguez Fayon Hartry appeals his conviction and life sentence for the malice murder of Delma Goddard, Jr.
The evidence оf record shows that in the evening hours of May 26,1996, Hartry, along with Rondell Durden and Darian Alexander,
Later that same evening, Hartry and the other two, along with Raheen Vаsser and David and Danny Renfroe, gathered at an apartment. According to Danny Renfroe and Vasser, Hartry had a nine millimeter handgun with him, and ridiculed the others for their reluctance to retaliate against the occupants of the brown van. Aсcording to David Renfroe, Hartry and Durden urged the others to drive to Fifth Street in Milledgeville, because, as Hartry stated, “they’re having a party down there.” The group first drove to the Renfroes’ home, where David Renfroe retrieved Vasser’s shotgun and
The quartet drоve down Fifth Street, and turned around when the street dead ended. As they drove up the street, the headlights on Alexander’s truck turned off, and Vasser fired his shotgun in the air while Hartry fired his nine millimeter pistol at the Fifth Street home of Doris Brown, who was at that time on her front рorch with her friends and family. One of the bullets fired at Ms. Brown’s home hit and killed her son-in-law, Delma Goddard. Six eyewitnesses and two of Hartry’s co-defendants testified that the only shots fired at the home came from the back of Alexander’s truck, where Hartry and Vassеr were seated. Six of these eight eyewitnesses testified that two men were seated in the back of the truck, and that one man fired a shotgun and the other man fired a pistol. Two of these eyewitnesses identified Hartry as the man who fired the pistol аt the people gathered on Ms. Brown’s front porch. Three of these eyewitnesses identified Vasser as the man who fired a shotgun into the air, while the other man in the truck fired directly at the porch.
A neighbor of Ms. Brown spotted and later identified Hartry as he and the others fled the scene. After fleeing to Vasser’s nearby trailer, Hartry removed his striped shirt, and left it in the trailer. He then telephoned his sister and arranged an alibi with her, and telephoned a friend who agreed to drive him home. He was arrested two days later.
Police recovered both Hartry’s nine millimeter gun and Vasser’s shotgun from a nearby creek. Two nine millimeter shell casings were recovered from the bed of Alexander’s pickup truck. One nine millimeter bullet was recovered from Ms. Brown’s attic. All were identified as having been fired from Hartry’s handgun.
1. The evidence introduced at trial was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Hartry is guilty of malice murder.
2. Hartry contends that his conviсtion must be reversed because after the trial court delayed ruling on his motion to suppress statements regarding alleged gang activity, the prosecutor made an opening statement in which he stated that he believed the evidence wоuld show that the shooting of Delma Goddard was gang-related. Thereafter, during the trial, the prosecutor failed to offer any evidence to support that assertion. Hartry claims this improperly placed his
Before trial began, Hartry moved the court to prohibit the State from referencing gang activity during the trial. The trial court denied the motion, based upon the State’s representation that it would introduce evidence thаt the motive for the. crime was gang-related. As stated in Alexander, supra, the trial court properly denied Hartry’s motion, based upon the prosecution’s representation, and the court correctly admonished the prosecution that evidenсe of gang membership and/or activity would need to be relevant in some way, and that the prosecution, must be prepared to explain such relevancy and why any such evidence it sought to introduce was admissible.
Over objection, the prosecution then stated during opening arguments that it expected the evidence to show that Hartry and his cohorts were members of the Folks gang; that they argued at the rally with members of the Blood gang who were traveling in the brown van; that Fifth Street in Milledgеville is in Blood gang territory; and that Hartry and the others committed a drive-by shooting on Fifth Street in order to retaliate against the Blood gang.
During trial, however, the prosecution did not attempt to identify the occupants of the brown van with whom Hartry and thе others argued. Moreover, even though a State’s witness claimed to know the identity of the driver of the brown van, the prosecution did not call that individual as a witness in order to determine whether he and the others in the van were members of a gang. Nor did the State attempt to introduce evidence that Fifth Street was in the territory of any specific gang. Furthermore, the prosecutor never sought to identify Hartry as the member of a gang, although he did establish that Vasser, who was not at the rally, did belоng to a gang. Accordingly, as we found in Alexander, the record shows that the State failed to offer the evidence of significant gang activity that it detailed in its opening statement.
As thoroughly explained in Alexander, a prosecutor’s opening statement must be confined to what he or she expects the evidence to prove at trial.
Regarding the trial court’s curative instructions, because the prejudicial impact of the prosecution’s opening statement was great, the trial сourt’s general charge that opening statements are not evidence, without specific mention of the State’s improper references to gang activity, was not sufficient.
However, having closely reviewed the transcript of the trial proceedings, we conclude that any error resulting from the trial court’s abuse of discretion was harmless. As explained above, the testimony of six eyewitnеsses, and two of Hartry’s co-defendants, showed overwhelmingly that it was Hartry who fired the nine millimeter bullet that killed the victim. The evidence was overwhelming that there were only two individuals in the back of the truck at the time of the shooting — Hartry and Vasser. Of those twо, the evidence inexorably shows that it was Hartry who fired a nine millimeter pistol at the group of people gathered on Ms. Brown’s front porch, killing the victim in the process. In contrast, the evidence is conclusive that Vasser did not even fire а handgun at the gathering; rather, he fired a shotgun into the air. The record reveals no evidence that any of the shots fired by Vasser struck in the vicinity of Ms. Brown’s home.
Thus, the facts attending Hartry’s appeal are very different from those relative to the appeal of his co-defendant, Alexander. As noted in our opinion reversing Alexander’s conviction, it was undisputed at trial that Alexander did not fire one of the weapons in this matter, and the State’s case against Alexander was based upon circumstantial evidence that he was a party to the crime.
Accordingly, in light of the overwhelming evidence thаt Hartry shot and killed the victim, and the dearth of evidence to indicate otherwise, we conclude that the failure to grant Hartry’s mistrial motion
3. The trial court did not err in permitting the State to introduce into evidence the shirt worn by Hartry at the time of the murder. At least four witnesses identified thе shirt as the one worn by Hartry during the murder; hence, there was sufficient evidence that it belonged to Hartry. Because the shirt was a distinct and recognizable physical object that could be easily identified simply by observation, it was not necessary to establish its chain of custody prior to its admission.
Finally, the shirt was inculpatory and not exculpatory, and thus was not covered by Hartry’s pretrial Brady motion.
Judgment affirmed.
Notes
The murder was committed on May 26, 1996. Hartry was indicted on May 29, 1996 and was convicted on September 27, 1996. On October 7, 1996, the trial court sentenced Hartry to life imprisonment for malice murder. Hartry filed a motion for new trial on October 17, 1996, and the motion was amended on September 12,1997. The court reporter certified the transcript on January 6, 1997, and the trial court denied Hartry’s new trial motion on March 6, 1998. On May 12, 1998, the trial court granted Hartry’s request for an out-of-time appeal, and Hartry’s notice of appeal was filed on May 21,1998. The appeal was docketed in this Court on August 6, 1998. Hartry’s untimely request for oral argument was denied on September 11, 1998, pursuant to Supreme Court Rule 50 (3), and the matter was submitted for decision without oral argument.
Alexander’s conviction for his involvement in the murder of Delma Goddard was reversed by this Court in Alexander v. State,
Jackson v. Virginia,
Alexander, supra at n. 4.
Id. at 349.
Id. See Cargill v. State,
Cargill, supra.
See Alexander, supra at 350.
See id. at 350-351.
Id. at 351.
See Price v. State,
Harper v. State,
Brady v. Maryland,
Id.,
Ross v. State,
Concurrence Opinion
concurring specially.
I concur fully in Divisions 1 and 3 of the opinion and in the judgment affirming Hartry’s conviction. However, for the reasons set forth in my dissent in Alexander v. State,
I am authorized to state that Justice Hunstein and Justice Hines join in this opinion.