Appellant Anthony Herrington challenges his conviction for felony murder based on aggravated assault in connection with the shooting death of Curtis Howard. Appellant contends that the evidence presented at trial was insufficient to support his conviction, that the trial court gave an improper jury instruction on aggravated assault, that his motion for mistrial based on the prosecutor’s questions during voir dire was improperly denied, and that his trial counsel provided ineffective assistance. We affirm.
1. (a) Viewed in the light most favorable to the verdict, the evidence at trial showed the following. In 2006, Howard began
Howard weighed about 500 pounds, and Appellant, Thomas, and Fields had to work together to load his body into the bed of his truck. Appellant used a shovel to cover with fresh dirt the bloody ground where Howard lay after being shot, while Jones, Thomas, and Fields left to dispose of Howard’s body and truck. The next day, Howard’s body was found in the bed of his truck, which was parked behind a vacant mobile home in a neighboring county The police later found two kilograms of cocaine in a compartment behind the back seat.
At trial, Thomas and Fields testified for the State. Thomas said that Appellant also had a gun when he ran up to the truck, but no other evidence corroborated that point. Appellant testified that he was coming around the corner of the house when he heard the shots, and he denied any involvement in Howard’s death. Appellant claimed that he helped load Howard’s body into the truck only because Fields’s children were about to get home from school.
(b) Appellant argues that the evidence was legally insufficient to prove that he committed the aggravated assault with a deadly weapon predicate for his felony murder conviction. In support of this argument, Appellant asserts that the State failed to prove that he possessed a firearm, pointing to his acquittal on the count of possession of a firearm during the commission of a crime. However, a defendant need not personally possess a weapon or fire a shot to be found guilty asa party to an aggravated assault, if the evidence shows that he “[i]ntentionally aid[ed] or abet[ted] in the commission of the crime[.]” OCGA § 16-2-20 (b) (3). “ ‘(W)hether a person was a party to a crime can be inferred from his presence, companionship, and conduct before and after the crime was committed.’ ” Flournoy v. State,
Thomas testified that Appellant approached Howard’s truck with Jones, Thomas and Howard were ordered out of the truck at gunpoint, Appellant helped to control Thomas while Jones shot
Thus, even if the jury found that Appellant himself did not have a gun or shoot Howard, it does not follow that he could not properly be found guilty as a party to the felony murder based on the aggravated assault that Jones committed. See Flournoy,
2. Appellant contends that the trial court erred in instructing the jury on the elements of aggravated assault. Because Appellant did not raise this objection at trial,
his claim is reviewed on appeal only for plain error, meaning that we will reverse the trial court only if the instructional error was not affirmatively waived . . ., was obvious beyond reasonable dispute, likely affected the outcome of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings.
Saffold v. State,
Appellant’s claim fails this test. He complains that the trial court did not instruct the jury using only the language of the indictment, which alleged that the aggravated assault was committed “by shooting” the victim. But the court gave the jury the pattern charge for aggravated assault with a deadly weapon, and Appellant does not
3. Appellant next argues that the trial court erred in denying his motion for a mistrial during voir dire. The motion was based on two areas of questioning by the prosecutor. First, when the prosecutor asked the prospective jurors whether they believed that it was fair to hold a person who was a party to a crime equally responsible for the crime, Appellant objected on the ground that it was improper to ask the prospective jurors to prejudge the case. The trial court effectively sustained the objection by directing the prosecutor to move on before any of the prospective jurors answered the question.
The line between permissible inquiry into “prejudice” (a juror’s fixed opinion that a certain result should automatically follow from some fact, regardless of other facts or legal instructions) and impermissible questions of “pre-judgment” (speculation about or commitment to the appropriate result based on hypothesized facts) can be hazy. Thus, in this area as in other areas of voir dire practice, appellate courts should give substantial deference to the decisions made by trial judges, who oversee voir dire on a regular basis, are more familiar with the details and nuances of their cases, and can observe the parties’ and the prospective jurors’ demeanor.
Ellington v. State,
4. Finally, Appellant asserts that he received ineffective assistance of trial counsel because his counsel moved for a mistrial during voir dire, see Division 3 above, instead of making a “challenge to the poll,” which is the proper procedural vehicle to seek a new panel from which to select a jury See Sharpe v. State,
Judgment affirmed.
Notes
The victim was killed on August 24, 2006. On October 30, 2007, a Burke County grand jury indicted Appellant and Michael Jones, Michael Thomas, and Michael Fields for malice murder, felony murder based on aggravated assault, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. Thomas and Fields pled guilty to reduced charges and agreed to testify for the State. In May 2008, Jones was convicted of felony murder and other crimes; we have affirmed his convictions. See Jones v. State,