HIGHTOWER v. THE STATE; JOHNSON v. THE STATE
S10A0383, S10A0589
Supreme Court of Georgia
July 14, 2010
287 Ga. 586 | 698 SE2d 312
HINES, Justice.
Hewett, Assistant General Counsel State Bar, for State Bar of Georgia.
These appeals arise from a joint trial stemming from the fatal shooting of Travis Harris and the pistol beating of Marvin Thurman. In Case No. S10A0383, Ricardel Hightower appeals his convictions for malice murder, armed robbery, and aggravated assault; in Case No. S10A0589, Roderick Johnson appeals his convictions for the same offenses. For the reasons that follow, we affirm.1
Construed to support the verdicts, the evidence showed that the apartment of Sammy Green in Albany, Georgia was used as a gambling house. On December 7, 2002, Zackery and Hightower were at the apartment at various times during the day, and that evening Hightower got into an argument with Travis Harris over some behavior while playing cards. Zackery broke up the argument. Hightower was gambling with Zackery‘s money, and he and Zackery became upset after losing a significant amount of it. Hightower and Zackery left the apartment around midnight and went to a nearby pool hall. There they met Roderick Johnson and Abe Brown, and the men agreed to go to Green‘s apartment and rob those inside. In the early morning hours, Zackery, Hightower, and Johnson went to Green‘s apartment; they were masked and armed with an AK-47
Case No. S10A0383
1. Hightower asserts that the evidence was insufficient to support his convictions, contending that the State presented only circumstantial evidence that did not exclude all reasonable hypotheses except that of his guilt. See
[Q]uestions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law. [Cit.]
Robbins v. State, 269 Ga. 500, 501 (1) (499 SE2d 323) (1998). Although Hightower contends that he was tied to the crimes only by the clothing he wore, and that his knowledge of Harris and the crime scene would have led him to behave differently than the masked robbers did, there was evidence that Hightower had argued with Harris during a card game, and that Harris had snatched money from the table. Hightower also asked Shawn Keith to engage in a robbery with him; Keith later saw Hightower burning clothes. The evidence was sufficient to enable a rational trier of fact to find Hightower guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Banta v. State, 282 Ga. 392, 395-396 (1) (651 SE2d 21) (2007).
2. During his opening statement, the prosecutor said, “Roderick Johnson made the statement to the police or a police officer that he felt that Richard Zackery and Ricardel Hightower were involved in the crime, and at that time, he believed that Abe Brown had told everything.” Hightower moved for a mistrial, which was denied, and he contends that the State‘s reference to Johnson‘s statement violated Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). This Court has previously determined that this incident produced no reversible error. Zackery, supra at 401-402 (3).
3. Holman, a relative of both Hightower and Johnson, testified during the State‘s case-in-chief, that he was in a pool hall with Johnson on December 7, 2002, left with Johnson at 11:30 p.m., went to another establishment, and Johnson left there with Brown sometime before 12:59 a.m. on December 8, 2002.
The State asked Holman if he knew anything about “this event that‘s the subject of this trial.” He responded: “Heard about it by the street committee. I heard it.” After the State clarified that by “the street committee” Holman meant that he had heard things from public discussion and television, the State asked if there was “any occasion that you went and talked to your cousin, Daphne Hightower.” Holman responded “I had my nights mixed up,” and that he had not gone to his cousin‘s house on Sunday night December 8, 2002, but had gone there the previous Friday night, December 6, 2002, before the commission of the crimes. After again questioning whether Holman had gone to his cousin‘s home Sunday night, the prosecutor asked: “Was there an occasion that you came over to your cousin, Daphne Hightower‘s house and you represented to her that Ricardel was in trouble? Ricardel was in trouble and done killed someone?” Holman responded negatively. Holman was later asked whether “there was an occasion when you talked to [the investigating law enforcement officer] about her investigation into Ricardel Hightower and Roderick Johnson and you represented to her that she was on the right track?” Holman responded: “No, sir.” No objections were made during any of this testimony.
The State later asked an investigating officer about what Holman had said on the earlier occasion that Holman had been asked about; the officer testified that Holman “stated that he believed that Hightower and Zackery. . . .” An objection was made at that time, joined by all defendants, that the question improperly called for an opinion. After discussion and the court‘s overruling of the objection, the officer testified: “He stated that he strongly believes that Mr. Hightower and Mr. Zackery committed the robbery and the burglary.” The court immediately instructed the jury that it had permitted this testimony only for impeachment purposes, and that Holman‘s opinion was not a substantive matter.
Holman was later recalled to the witness stand, and asked if, in a conversation with an investigator, he “represented that you believed that Richard Zackery and Ricardel Hightower were involved in this crime because of the money involved in this particular case, that they were losing gambling?” Hightower objected that this question called for an opinion as to the ultimate fact to be found by the jury. After some questions regarding Hightower‘s and Zackery‘s
Citing
4. The trial court instructed the jury:
If after considering the testimony and evidence presented to you, together with the charge of the court, you find and believe beyond a reasonable doubt that any or all of the defendants committed the offense with which they‘re charged, then in that event, you would be authorized to find the defendants guilty.
Hightower urges that this instruction relieved the State of the burden to prove separately each defendant‘s guilt beyond a reasonable doubt. However, viewing the jury instructions as a whole, Napier v. State, 276 Ga. 769, 772 (2) (583 SE2d 825) (2003), there is no reversible error. The court also instructed the jury that “though you may consider all of the evidence as a whole, conviction of one defendant does not necessarily require you to convict all. You, the jury, must determine the guilt or innocence of each defendant separately.” And,
[i]f you do not believe that any of the defendants or all of them have been sufficiently identified as the persons who committed the alleged crime or were a party to it, or if you have any reasonable doubt about such, then it would be your duty to acquit the defendant, or those defendants that you decide are not guilty. . . .
5. Hightower claims that his trial counsel failed to provide effective representation in regard to the potential introduction into evidence of the clothes he was wearing on the night of the crimes;
After the prosecution rested its case, Hightower‘s attorney called Hightower‘s wife to testify. Outside the presence of the jury, the State objected that it had just been handed certain items of clothing, when no prior notice of such had been given, despite the reciprocal discovery rules. Defense counsel stated that it was the first time he had been given the items. While the court discussed its potential ruling, defense counsel announced that he would not ask the witness any questions regarding the articles of clothing; the jury was brought into the courtroom, and the testimony of the witness proceeded without mention of the clothing.
Hightower urges that this was defective performance in that counsel knew he was obligated to provide the State with notice of any physical evidence he wished to introduce. And, during the motion for new trial, Hightower testified that, a week before the trial, he told counsel that his wife still had the clothes he wore that day, and could bring them to trial, to refute Keith‘s testimony that he saw Hightower burning clothes after the commission of the crimes. Although counsel testified that he had no recollection of the details of the attempt to present the clothes to the jury, other than that they were not given to him until the day Hightower‘s wife testified, we need not determine whether his failure to attempt the presentation constitutes deficient performance on his part; Hightower fails to show that, had counsel given the State the necessary notice of the intent to introduce such evidence, there is a reasonable probability that the outcome of the trial would have been different. Hightower‘s wife did
6. In his final enumeration of error, Hightower contends that during its opening statement, the State referred to matters about which it produced no evidence. However, “[a]lthough the prosecution‘s opening statement may have painted with a broad brush, it was not misleading,” as evidence was introduced to support the outline of the case presented in the opening statement. Holton v. State, 280 Ga. 843, 847-848 (5) (632 SE2d 90) (2006). Further,
[a]s to any claim that by the subject statements the prosecutor made assertions of fact in the opening statement that could not be established by the evidence, it fails to provide a basis for reversal of [Hightower‘s] convictions as there was no evidence that the prosecutor acted in bad faith and the trial court instructed the jury that evidence did not include the opening statements by the attorneys. [Cits.]
Zackery, supra at 401 (2). Nor does Hightower show error as to his remaining complaints regarding the State‘s questioning of witnesses or remarks in closing argument; he did not object during closing argument, and to the extent that he objected during the State‘s questioning of witnesses, the evidence complained of demonstrated Hightower‘s anger at losing money gambling, and his motive for committing a robbery.
Case No. S10A0589
7. The evidence was sufficient to enable a rational trier of fact to find Johnson guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
8. During his opening statement, the prosecutor asserted that the “defendants were all identified as potential suspects in this case based upon information from a confidential informant.” Hightower objected that any information from a confidential informant was
Johnson now asserts that the State‘s comment in its opening statement violated his Sixth Amendment right of confrontation. However, Johnson “did not object at trial on confrontation grounds; he objected simply on the basis that the testimony was hearsay. Consequently, he cannot now for the first time raise an issue regarding a violation of his right of confrontation. [Cit.]” Walton v. State, 278 Ga. 432, 436 (2) (603 SE2d 263) (2004). To the extent that Johnson contends that the failure to object on confrontation grounds constituted ineffective assistance of trial counsel, Johnson is represented on appeal by the same counsel who represented him at trial, and he cannot now raise a claim of ineffective assistance of trial counsel. See Perkinson v. State, 279 Ga. 232, 238 (10) (610 SE2d 533) (2005); Berry v. State, 262 Ga. 614, 615 (3) (422 SE2d 861) (1992).6
9. Johnson contends that, during its opening statement, the State improperly put his character in issue. However, Johnson raised no objection, and appellate review of the issue is waived. Harris v. State, 279 Ga. 522, 525 (4) (615 SE2d 532) (2005).
He also complains that his character was improperly placed in issue during Hightower‘s cross-examination of an investigating law enforcement officer. Hightower asked “[h]ow many people did y‘all put in jail, whether you had a warrant for them or not, in connection with this case?” The officer responded that “I think, if I‘m not mistaken, Mr. Johnson had a warrant or something, I‘m not sure about that, but I know I didn‘t personally put anybody in jail.” Hightower specified that he was asking about “people other than these three defendants“; the officer repeated, “I didn‘t personally put anybody in jail.” Hightower asked if “during your time as the lead detective in this case, was anybody put in jail in connection with the case?” The detective replied: “I think Mr. Johnson was - I think Sergeant Hall may have put - or his probation officer put a hold on him or something to that effect. That‘s the only one I can recall.” At this point, Johnson moved for a mistrial, and the jury was removed from the courtroom. During discussion of the motion, the State noted that no testimony regarding a probation revocation was presented, and asserted that Hightower‘s questioning had not in-
10. Johnson contends that he was improperly sentenced as a recidivist and claims that, while under a prior indictment, he received notice under
11. Finally, Johnson has advanced several enumerations of error for which he fails to provide argument or citation of authority. Georgia Supreme Court Rule 22 (2007). Thus, these issues are abandoned. McNeal v. State, 281 Ga. 427, 429 (3) (637 SE2d 375) (2006).9
Judgments affirmed. All the Justices concur, except Carley, P. J., and Melton and Nahmias, JJ., who concur specially.
MELTON, Justice, concurring specially.
I cannot concur in the reasoning employed in Division 3 of the majority opinion. Therefore, although I concur in the remaining Divisions of the majority, I must write separately to address the State‘s improper impeachment of Johnny Holman with impermissible opinion testimony.
In analyzing Holman‘s testimony, we must be guided by the general principle that a witness should not be allowed to give his opinion on the ultimate issue of fact to be determined by the jury. In this case, that ultimate issue is the identity of the perpetrators. With this in mind, the record shows that Holman, a relative of Hightower
Contrary to the characterization of the trial court and the State, neither of the questions posed to Holman asked for or elicited his opinion about the crimes. Instead, he was asked about statements indicating that he knew the identity of the assailants, not merely that he had an opinion of who they were based on speculation, hunch, or conjecture. Accordingly, the questions did not elicit opinion testimony, and the defendants, therefore, rightly chose not to object to the line of questioning on this particular basis.
Then, after Holman finished testifying, the State called the investigating officer to whom Holman had spoken and, over objection, the trial court allowed the State to elicit her testimony that Holman “stated that he strongly believes that Mr. Hightower and Mr. Zackery committed the robbery and the burglary.” (Emphasis supplied.) At this point, the State was allowed to introduce Holman‘s unmitigated opinion testimony for the first time.10 In addition, the opinion testimony was introduced for an improper reason - namely to impeach prior testimony which had been inaccurately classified as opinion testimony. In other words, it was introduced to impeach prior opinion testimony which did not exist. This was clearly error, and the trial court‘s instruction to the jury to treat the opinion testimony as impeachment evidence merely perpetuated the problem.
Furthermore, the problem remains even though prosecutors generally must be given wide leeway in their scope of impeachment to prevent defendants from “presenting tailored defenses insulated from effective challenge.” Overcash v. State, 239 Ga. 499, 500 (1) (238 SE2d 50) (1977). Here, the prosecution could have specifically
These already existing errors were further exacerbated when the State later recalled Holman to the stand, and after Holman talked about the gambling on the night in question, the State was allowed to ask the following questions over objection: (1) “Was there an occasion in this conversation [with the investigating officer] when you represented that you believed that Richard Zackery and Ricardel Hightower committed this crime because Ricardel was losing money [while gambling]?” and (2) “[W]as there an occasion that you represented to [the police investigator] that you believe that these individuals did this crime based upon the fact that Ricardel Hightower was losing Richard Zackery‘s money?” In response to the second question, Holman answered: “[The investigator] said: ‘Just give me your feeling. What do you feel? Do you feel they had anything to do with it by what I done told you?’ I told her yes; that‘s exactly what I told her.” After this answer to the second question, the defendants moved for a mistrial. The trial court denied the mistrial, and instead charged the jury that Holman‘s answers were merely opinions.11
Unlike the prior statements of opinion, this testimony was admitted without even the improper excuse that it was impeachment evidence. Although the trial court‘s instruction appears to recognize that Holman‘s opinion was improper evidence, the trial court admitted it anyway and never instructed the jurors to disregard it. Again, this is clearly error and runs afoul of the rule that “[a] witness generally is not permitted to express his or her opinion regarding an ultimate issue in the case because to do so would invade the fact-finding province of the jury. . . .” Medlock v. State, 263 Ga. 246, 248 (3) (430 SE2d 754) (1993).
I am authorized to state that Presiding Justice Carley and Justice Nahmias join in this special concurrence.
DECIDED JULY 14, 2010.
Jimmonique R. S. Rodgers, for appellant (case no. S10A0383).
Mark T. Phillips, for appellant (case no. S10A0589).
Gregory W. Edwards, District Attorney, Thurbert E. Baker, Attorney General, Reggie A. Lampkin, Assistant Attorney General, for appellee.