*1
completely
recovery.
sumed the risk
from
barred
Under this
jury
knowledge
instruction, a
could
who
find that
tenant
had no
of a
knowledge
had
if
defect
assumed the risk
the landlord also had no
finding
clearly
the defect. Such a
would be
In
erroneous.
order to as-
plaintiff
appreciation
risk,
sume a
have
must
“a full
of the risk in-
43) (1959).
App.
Wade,
See Beck v.
volved.”
appellant
Substantial evidence was adduced at trial that both the
appellee
tendency
and the
the
were aware of the
doors’
shower
to fall off
railing,
but that neither was aware that the doors
not
contain
glass. Assuming
safety
evidence,
believed this
under the
instructions,
court’s
have found that the
Watsons assumed
completely
recovery. However,
risk
the
ing
and were
barred from
a find-
equal
knowledge
that Watsons and Mr. Ellis had
of the ten-
dency
jury’s analysis.
to fall
such
should
end the
Under
a factual
upon being
situation,
landlord,
must
decide
informed
tendency
remedy
fall,
of the
defect.
acted within a
reasonable time
Hanlon,
Veal v.
A
court’s instructions such a result. majority misinterpreted I
Because believe the has Savannah Thompson ordinance, and because the trial court misconstrued improperly assumption risk, I instructed the believe that appellants are due a new trial. joins
I am authorized to Benham Justice this dis- sent. — July 3,
Decided July Reconsideration denied Taggart, appellants. Thomas R. for Bowman, Forbes, Bowman,
Forbes & Morton G. M. Catherine Birney appellee. Foster, Bull, A. John
S91A0110.HAYES v. THE STATE.
S91A0111.TURNER v. THE STATE.
Clarke, Chief Justice. Bobby together Hayes Joe Turner and Alfonzo were tried 15-year-old Cory Willis.1 There was testi- “Moonbeam” murder of mony neighborhood drug evening of the murder a trial that on the at family. Bo, There was dealer, Turner and his threatened Hayes riding as car in which fired into Turner’s trial that Bo had According passenger. defendants, Turner borrowed a rifle to to both a protect with to effect a citi- returned to the scene himself and *2 they drug victim, encountered the dealer. There arrest of the zen’s who, according defendants, made a sudden move. There was to both Jerry Rogers, testimony witness, Lee that after Turner from another say Moonbeam, the victim “It’s don’t victim to halt he heard told the drug believing that the victim was the shoot!” Turner testified leg dealer, a shot aimed at the he told him to halt and then fired that Turner fired two shots at the victim. Other witnesses testified Jerry Rogers testified that he saw Turner shoot the the victim. Lee away. two times. He testified that the victim tried to crawl He victim testified that after Turner fired ment to retrieve a Winchester Hayes apart- shot, one went to his rifle. Turner then fired another .30/.30 Hayes According Rogers, returned with the shot Moonbeam. rifle and threatened apartment. who ran into his aunt’s He Rogers, Hayes gunshot testified that he heard another the victim. He did see but did not see shoot Hayes point the rifle at the victim. Another Hayes victim with the rifle. There witness said that she saw was his chest but at Turner’s instruction rifle shoot the testimony Hayes put over and the rifle on turned victim
wiped fingerprints off the placed and rifle in the victim’s hand Winchester .30/.30 leaving before either of two also testified that he removed the scene. At trial the medical examiner testified that
gunshot death. He wounds could have been the cause of fragments body bullet .30/.30 expert Georgia A of the victim. firearms from the Crime Lab testified opinion fragments to his that the bullet came from the rifle found away discovering the victim. Turner said that he ran after that he had neighbor drug dealer, shot a instead of the and he insisted that he present Hayes allegedly was not into the vic- when fired a rifle shot felony Hayes tim’s back. Turner was convicted victed of malice murder. Both were murder. was con- imprisonment. to life
sentenced
Hayes
August 30, 1988,
Cory
Turner and
were indicted
murder of
Willis on
13,
July
6,
They
29,
beginning
1988.
were tried
a
December
before
November
1988. On
1988,
felony
Hayes
convicted Turner of
On
murder and
of malice murder.
December
6, 1988,
imprisonment.
both defendants were sentenced to life
for new
Turner filed a motion
29,
24,
August
trial December
1988. This was denied
amended motion
1990.
filed an
3, 1990,
January
24,
August
transcript
for new trial
which
certified
was denied
1990. The
15,
13,
Hayes’
appeal
September
November
appeal
1989.
Turner’s notice of
was filed
1990.
notice
24, 1990,
29,
August
appeals
filed
1990. Both
were
in this court October
docketed
opinion
7,
appointment
and submitted
Hayes’ appeal,
after
December
1990.
of new counsel
Due to
22,
appeal
April
briefs were not submitted in his
until
Reviewing
light
jury’s
in the
evidence
most favorable to the
verdict,
we hold that
rational
trier
fact could have found both
appellants guilty
they
beyond
of the crime for which
were convicted
Virginia,
Jackson v.
reasonable doubt.
Appellant Turner enumerates errors. These ba- enumerations sically prosecutor’s complaints concerning open- break down into ing closing complaints jurors, concerning statements, and the court’s Hayes, failure to sever Turner’s trial from that of complaints concerning charge. Woods, Harold and Opening complains following statement: Turner state- prosecutor placed ment of the his character evidence and war- “They Cory urine, ranted a mistrial: and adid check of Willis’ blood body, drugs there was and no alcohol his mother testify you hang will did not out with the defendants and Appellant objection their crowd.” The court sustained Turner’s but grant agree declined mistrial. We do not that the court exceeded authority. its *3 Appellant jurors
2. Jurors: Turner contends two should have been disqualified. juror being Turner characterized of one as the answer concerning that she could not follow the instructions the court a testify. right actually defendant’s not to She said that she understood right that the court would instruct the not to take the stand and that the that the defendant has a
jury may against not consider juror gave instruction, him. The if said that even the court that get up would of the her bother story. that the defendant did and tell his side not testify. ju- Turner did fact He contends that another impartial ror that said she could not be a murder in her because of family pictures juror and could look not of the crime scene. The actually try impartial said that she be not sure but was say questioned by she that could. court she did when she would follow the instructions of the court. juror jury. argues
Neither served since the on the The state that process recorded, selection was was not show that he Turner cannot peremptory juror. However, forced to held in we exercise strike on either 712) (1986), Harris v. 465 longer peremptory “[t]he defendant’s no use his strikes will ... play a role in our evaluation harm the refusal caused unqualified juror.” jurors disqualified strike under These were not (a); §§ 15-12-163, 15-12-164, OCGA 15-12-135 find no error we and excusing in thé court’s not them for cause. jurors
Turner race contends that seven were stricken because striking racially reason for the the that the state showed no neutral and striking racially jurors. jurors, give reason for The neutral state reason credible. We find and case the court found the each Therefore, no was shown reasons we hold that error these sufficient. Kentucky, 1712, LE2d S. Batson v. 476 U. under (1986). his trial should have been Severance: Turner contends that Hayes defense the of his co-defendant because the
severed ories of Turner, that totally According were different. two co-defendants attempting theory of his defense that he make Hayes’ simply defense was a lawful arrest. Turner contends Appellant victim. Turner insists that that he had shot at the denial (Hayes’) prejudiced interjected case was because his char his bring previous allowing evidence, state to evidence of acter into convictions. The state of due any responds that has not shown denial State, Turner process, test for under Allen which severance says Ga. 513 that while de The they antagonistic. agree. different, As fenses were were not We we said, supra, prejudice in Allen v. must the defendant show and consequent process denial of due before a motion to sever will be granted. The denial of a motion to sever is within the discretion of judge trial will in the of abuse not be reversed absence discretion. We find no error. Testimony of Harold Woods: Turner claims that Harold testimony
Woods’ was not should have been allowed because name
given begun. days to the defendants until four after trial had According § given Turner, trial OCGA 17-7-110. Mr. Woods said at days prosecution he had state trial. a statement to the six before responds prosecutor the witness on the eve- discovered ning prior morning gave to the she to defendants that she notice points would call Woods. The state out that court was recessed to Finally, allow sists counsel state in- defendants’ to interview Woods. any prejudice error was harmless since has shown through testimony of this witness since his was cu- § mulative of that of other witnesses. We find no error. OCGA 17-7- *4 provides list of that a witnesses furnished to defendant ten be days prior prosecutor place to trial unless in the states his presented newly evidence to be is evidence which was not discovered available at the time the defendant was furnished the witness list. prosecutor place The dence stated her new that she had discovered evi-
regarding evening the witness on the before furnished his she judge gave name to the defendants. The trial the defendants’ attor- neys opportunity an to the The the wit- interview witness. fact that cooperate justify disallowing attorney ness would not with the not testimony. his says 5. Denial of directed verdict: he was indicted for prove malice murder and the by then set to state out transferred intent responds not facts indicated the indictment. The state proven by support facts the since the state would a verdict of malice judge denying murder, err in the trial did not the motion for a di- acquittal. Reviewing light verdict of the rected evidence the most jury’s verdict, to favorable could have found we hold a trier rational of fact
appellant guilty of the crime for which he was con- Virginia, beyond supra. Jackson v. victed reasonable doubt. Jury instructions: (a) Appellant charg- Turner contends that court erred in not (OCGA (b)) ing involuntary manslaughter § 16-5-3 because he invol- untarily attempting Also, shot the victim while to an effect arrest. argues charge that the failure was error was to because this the sole upon defense of the defendant. Turner relies 154 Ga. Griffin App. However, case makes it clear charge mandatory that a some evidence to App. on the defendant’s sole defense is there is if charge. support In Jackson v. 76) (1980), Appeals Court found that there was some evidence from which could have found self-defense. charge “[f]ailure The on Court went to hold that on self-defense only when it constitutes the is defendant’s defense reversible error.” charge involuntary manslaughter A Id. on is not warranted support if is even it the sole defense if the evidence does not charge. The state insists that the record reveals no which evidence
support involuntary manslaughter charge an is evi- because there no attempting dence that Turner was to effect a valid citizen’s arrest. provides may private § OCGA 17-4-60 that a citizen make an arrest felony presence a edge. private committed or within his immediate knowl- may upon prob-
A citizen an make arrest reasonable grounds suspicion felony able escaping if the offense is a and the offender is trying escape. valid, For citizen’s arrest to be must citizen use no force the circum- more than is reasonable under stances. ner state Tur- contends that would not be reasonable for attempt weapon an arrest which with AR-15 semi-automatic carry. points deadly Also, out, he was not licensed to force in effecting an arrest is limited to self-defense or a situation which necessary prevent felony. it is § 17-4-20.Turner’s forcible OCGA argument manslaugh- charge involuntary that he was entitled ato ter concedes reach the force can be force used was we unlawful. need question whether a citizen’s unlawful arrest carried out with
involuntary manslaughter,
find that there was
we
justified.
felony
evidence that a citizen’s arrest
committed
No
presence
knowledge.
He
victim Turner’s
or in his immediate
*5
suspicion
escaping
grounds
the victim was an
felon.
had
Turner
felon.
mistakenly
may argue
that the victim was a
that he
believed
the victim answered his com-
there is
Moonbeam,
“It’s
don’t shoot!” We refuse
to halt with the words
mand
identity
deadly
his use of
Turner’s claim of mistaken
to find that
force mandate a
charge
involuntary manslaughter.
on
(b)
charging
felony
on
Turner contends that the court erred
underlying felony,
purported
assault, was not in the
since the
murder
indictment. The state
with death of the
was
commission
SE2d
responds
charged
that the indictment
Turner
“by shooting
Therefore,
him
victim
with a rifle.”
adequately
during
murder
notified that the
was committed
(392
Jolly
aggravated
State,
v.
assault.
(c) request charge Turner insists that since he did not a on volun- tary manslaughter, give charge objection it was error to over his Stonaker, under State v. contends that there was some evidence and under Stonaker the court is authorized to cluded offense sua even an error unless the 236 Ga. The state provocation record,
charge in- a lesser sponte supporting However, if there is evidence it. charge erroneous a lesser included offense not reversible charge is harmful a We to defendant. find no error. (d) Appellant charge Turner claims that the failure to on the concept provocation of transferred was error. Because this enumera- accompanied by argument tion of error is neither nor citation of au- thority, Supreme it is deemed abandoned under Rule Court
(e) charge Turner contends that it was error to that defendant advantage cannot take of the fact that his unlawful act strikes down argues charge an unintended victim. Turner that this amounted to an upon responds unwarranted comment cannot find this instruction in the record the evidence. The state that it if
but that even the court given justified instruction, had it would have been since Turner agree. Bo, testified that he intended to shoot not the victim. We (f) Appellant Turner claims that the court’s instruction that evi- prosecution police impeded investiga- dence that he defeated against tion could be comment him considered amounted to an unwarranted upon part charge objected the evidence. to was charge on criminal intent. There was evidence that he discarded the firing preventing police tracing rifle, bolt on his the bullet weapon. Therefore, fired into the victim to Turner’s semi-automatic charge justified. Canady App. In 870) (1943), upon by support relied of this enumera- previous Ap- tion of error peals error, and the enumeration of the Court opinion expressed found reversible error where the court proven. to what had or had not been such a The court did not make charge complained comment connection with either of here. during closing argument: Appellant 7. Statements Turner con- granted during closing tends that the court should have a mistrial ar- gument prosecutor intentionally when the went outside the record remarking keeping that the defense “tried hard and succeeded at Cory picture high responds [of evidence].” school out The state improper, showing that even this statement were there was no gave Also, it was harmful to Turner. the court curative instructions *6 prosecutor. Therefore, and the § rebuked we find no error. OCGA 17- 8-75. Appellant Hayes
II. Hayes raises two of enumerations error which are to identical appeal those raised These are an in his and have been discussed above. involving of
enumeration error the claim the that peremptory Kentucky, in exercised strikes violation of Batson v. supra, testimony allowing claim and a that the trial court in erred the of Harold Woods. Because we have dealt with these claims above and regard find no additional facts or factors which would cause error in appellant other, to one ther. to but not the we do fur- not consider them remaining The enumerations of error which will in be dealt with 1) opinion prior juvenile introducing this are the in trial court erred 2) Hayes’ good evidence; convictions to rebut character the trial court denying Appellant Hayes’ in erred motion for mistrial when the state misrepresented during Hayes closing argument had made an in- that 3) criminating charging statement; the trial court in that evi- erred appellant prosecution impeded police dence that in- defeated 4) vestigation give guilt; could rise to an the trial court Inference refusing give Hayes’ requested charge erred in on “transferred provocation”; Appellant Hayes that was denied effective assistance of counsel. Hayes good
1. Counsel for
character.
introduced evidence of
The state on
the charac-
cross-examination elicited information from
juvenile
concerning
Hayes
ter witnesses
contends that the
offenses.
a)
testimony
allowing
court
erred
this
the state violated
because
Brady
requirements
Maryland,
the
gation. by enumeration as it was raised have dealt with this We Hayes, wiped fingerprints As to evidence Turner. evidentiary put in the victim’s hands a sufficient the rifle and charge. basis denying trial court’s his motion for claims error prosecutor misrepresented during that the clos-
mistrial on basis incriminating ing argument The he had made an confession. prosecutor displayed also a board which had the word “confession” on gave instructing instructions, The court sufficient curative .it. prosecutor were not and the the and other counsel witnesses this, After evidence. should remember prosecutor only Hayes’ “incriminating referred statement.” fully defining charged confessions, term, court as charge court also its that both defend- to statements. The stated they guilty in this case had at all times maintained that were not ants of *7 charged. find the offense We no error. Appellant provoca requested charge that found given against original
tion one whom intent was enter they provocation tained, then find that such transferred to the could person actually consequences who suffered the of the acts the de give charge. Although fendant. The court refused to charge this court voluntary manslaughter, appellant on that contends refusal to give requested charge was error because a conviction man slaughter depend accepting jury’s instead murder on theory provocation Cory Ap was transferred from to Willis. Bo 396) pellant upon App. relies Olds v. 84 Ga. (1951) support argument. in of his case a at a this concerns charge person by killing firing that a who kills another accident while person justified guilty. whom would be in Olds v. is not applicable Appellant State is not presented any authority to the situation here. has not requested charge. argued Further, for the requested charge confusing state, would have been to the ignored problem “cooling period. in the sense that it of a off” give charge. refusing We find error in the court’s to Hayes’ considering In5. not receive effec- contention he did first trial, tive assistance of counsel we must determine whether opportunity. though this claim was at the first raised Even this issue appeal, timely is raised for the first time on it was raised because represented by has been counsel trial until this time. 1) following: The claims of ineffective are assistance based on the 2) preserve Hayes’ objections review; counsel did not Batson coun- put Hayes’ allowing issue, sel character into the state to introduce 3) juvenile meaningfully partici- offenses; evidence of counsel did not 4) pate potential jurors; object in voir dire of counsel did not to the 5) juvenile proper offenses; introduction steps counsel did not take protect Hayes when a witness testified to admissions of co- 6) 7) objection defendant; witness; counsel did not renew to a proper steps protect counsel failed take his client when the state 8) introduced co-defendant; evidence of bad acts and the statement of objection counsel did not renew his to the of Harold Woods provided 9) prior trial; whose name was not counsel to the defendants agreeing part in erred with the state to withhold of co-defend- problem ant’s statement on the basis that it created a Bruton in when 10) part Hayes; fact this of the statement was beneficial to counsel meaningfully participate witnesses; failed to in cross-examination of 11) join objecting counsel failed to co-defendant’s in counsel to im- proper analogies state; remarks of the counsel made unfortunate Jimmy Swaggart, Judas, Arnold, to Bakker Burr, Benedict Jim Aaron Hayes’ describing good closing argument. character Hayes argues any that without defense at all the would have pressed guilty been hard to find him of malice murder. We find that the issue of ineffective be assistance counsel must hearing. remanded to the trial court for a
Judgment Appellant in Case No. S91A0111 as to af- Turner is Appeal Appellant Hayes firmed. court for a S91A0110of trial remanded to the
hearing on the issue of ineffective assistance of counsel. Judgment Judgment Case No. S91A0111. remanded affirmed except concur, with direction Case No. All the S91A0110. Justices specially. Benham, J., who concurs concurring specially.
Benham, Justice, Applying the rule stated Gamble v. 792) (1987), findings “[t]he . . . trial court’s are enti ‘great clearly deference,’ tled [cit.], and will affirmed er be unless opinion’s majority holding roneous,” I concur error “that no *8 Kentucky, 1712, was LE2d under v. shown Batson U. 79 90 476 S. SC 69) (1986).” appropriate However, I believe it would also be prima racially-motivated address the issue of whether a case of facie peremptory properly, strikes In was made. order to issue address that opportunity majority explicitly we should take this has to do what the implicitly: approach done dridge Al disavow the mathematical taken 111) (1988). v. 258 75Ga. Then we should simple procedure determining hearing establish a for must be when a 448 assessing validity purpose of the reasons behind of
held for the use Lastly, encourage challenges. peremptory trial we should explanations analysis apply offered strenuous courts suspect peremptory strikes. exercise Aldridge, by approved trial of a mathe- we use courts In prima determining facie has been whether a case formula for matical racially peremptory strikes were used. motivated made approach, approving ex- this court of such a mathematical in pressed the use through by observing “[d]eciding cases reservations possibilities dangers and with it inherent raw numbers carries use of My unjust illogical is use of at 79. real fear results.” Id. seemingly us unmistak- to miss formulae will cause mathematical inappropriate point Batson, is is considera- which that race an able tion in court alluded fully identify person’s Though determining for this fitness service. approach, dangers failed to to the of mathematical approach. danger In the case in inherent such an chief, the trial court stated: panel composition of the
“The Court will take notice of the judicial will notice of the fact of Jurors. The Court also take in this Jurors selected case are that five the fourteen per was no That its face and se that there black. shows on party by either this case. racial discrimination exercised Consequently, tucky is as Batson Ken- the motion overruled applicable in this matter.”
would not be explanations Although the trial court went on receive concerning peremptory strikes, its Bat- its use of statement that apply son vow the need for this court to disa- did not is clear evidence of potential Aldridge breeding to the because of its for confusion as holding cases consideration basic of Batson. We continue to see where of the of the Batson issue ends with a recitation makeup mathematical community makeup of the the mathematical of the panel approach with Batson and with selected. Such at variance supra. Allegiance respect Gamble, this court’s to and decision Aldridge’s progeny2 require mathe- Batson and its we disavow suspect approach impermissibly matical because it insulates strikes inquiry regarding racial motivation. authority supervisory In2. exercise of court’s inherent justice, provide simple proce- over the administration of we should establishing dure for trial the record the facts be used _ (111 LE2d [2] Edmonson v. Leesville Concrete SC 113 LE2d (1991); Co., Holland v. USLW 4574 Illinois, (1991); U. S. 474 Powers v. Ohio, 803, U. S.
449
determining
purposeful
court in
tion
whether there has been
discrimina-
peremptory challenges.
procedure
the use of
Such a
was estab-
701) (1987),
Jones,
in State v.
lished
been
Rather than aon case case basis whether a upon prima hearing showing is entitled to a based facie purposeful discrimination, the better course to follow would hearing any party’s request be to hold a Batson whenever party peremptory challenges the other exercises to remove cognizable group members of a bright racial from the venire. This consistency by any removing line test would ensure hearing doubt about when a Batson should be conducted. procedure complete Further, this would ensure a record for appellate review. given suspect peremptory 3. Reasons for strikes must be evalu- rigorously. cautioned, ated As this court has “ stamp’ approval explanations, ‘[R]ubber of all nonracial cripple fanciful, matter how whimsical or Batson’s disqualified commitment to ‘ensure that no citizen is jury Batson, service because of his race.’ 106 SC at 1723.” supra quoting [Gamble, Butler, from State v. 731 (Mo. App. 1987).] SW2d 265 proceed If above, we in the fashion outlined will we usher ungrudging acceptance Batson, is, era basic tenet of integrity process, thereby that of the selection the entire justice system, greatly is enhanced when fitness for service is determined race. — July 3, Decided July 24, denied
Reconsideration
Sparks,
(case
Finlayson,
appellant
James Robert
L. Burton
for
son, supra, by focusing
remptory
Powers,
[4]
supra,
P2d
State v.
strikes need not be of the same racial
selection
Holloway,
process, expands
made clear that
on the
District Mary appellee. Hines, H. Woolf, min *10 ZANT v. FOSTER.
S91A0197. STATE; S91A0198, THE vice versa. v. and FOSTER S91A0199. 74) (406 SE2d Clarke, Chief Justice. Tyrone Timothy 1987, was and sentenced
In
Foster
convicted
Floyd County.
by jury
v.
258
We affirmed. Foster
death
Ga.
a
(1988)
2110).
188)
(cert.
filed
denied
Foster
SE2d
corpus
superior
petition
Butts
in the
court of
for writ of habeas
According
mentally
County, claiming,
alia,
inter
that he
retarded.
hearing
case,
court conducted a
to the
filed in
the habeas
briefs
this
“genuine
issue,
issue”
on
of
determined
there
the retardation
County
Floyd
retardation,
the case to
for a
and “remanded”
alleged
following
retardation,
trial on the issue of Foster’s
procedure
mental
(4) (386
Fleming
Zant,
v.