Aрpellant Kevin Huckabee appeals his convictions stemming from the death of Jennifer Ross and the aggravated assault of Brett Finley. 1 On December 24, 2005, appellant and three others — Michael Thorpe (“Michael”), 2 Webster Wilson, 3 and Sean Thorpe (“Sean”) 4 — were driving around downtown Savannah in a stolen Ford Taurus looking for people to rob when they decided to rob four people walking in Orlеans Square. Sean testified that he and appellant were to retrieve the victims’ wallets while Wilson and Michael held the victims at gunpoint. Appellant, however, never exited the car. During the robbery, Wilson pistol-whipped victim Brett Finley, causing the gun to fire. Wilson then pointed the gun in Finley’s face demanding money. Upon hearing the first gunshot, two other victims, Lizzie Sprague and Brannеn Miles, started to flee on foot. They eventually encountered a taxi cab and had the cab driver call police. The fourth victim Jennifer Ross refused to give up her purse and was shot by Michael.
1. The evidеnce as summarized above was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt as a party to the crime of the felony murder of Jennifer Ross, aggravated assault with an intent to rob Brett Finley, and theft by receiving.
Jackson v. Virginia,
2. Appellant contends the trial court erred when it failed to strike several jurors and when the trial court improperly rehabili
tated one venire man. Appellant takes issue with the qualification of Jurors 12, 32, 34, 45, and 80, but at trial, appellant did not make any objection to the qualifications of Jurors 12 and 32, or to the rehabilitation of Juror 32. Therefore, any error in the qualification of Jurors 12 and 32 is not properly before this Court for review.
State v. Graham,
This Court has held that “[a]ny error regarding a prosрective juror qualified 43rd or later on the panel is harmless. ...”
Pope v. State,
Whether to strike a juror for cause lies within the sound discretion of the trial court. [Cit.] For a juror to be excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence and the court’s charge upon the evidence. [Cits.] A prospective juror’s doubt as to his or her own impartiality does not demand as a matter of law that he or she be excused for cause. [Cit.] A conclusion on an issue оf juror bias is based on findings of demeanor and credibility which are peculiarly in the trial court’s province, and those findings are to be given deference. [Cit.]
Hyde v. State,
3. Appellant сontends the trial court erred when it failed to allow him to present his defense of alibi. We disagree. OCGA § 17-16-5 (a) provides that:
Upon written demand by the prosecuting attorney within ten days after arraignment, or at such time as the court permits, stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days of the demand оf the prosecuting attorney or ten days prior to trial, whichever is later, or as otherwise ordered by the court, upon the prosecuting attorney a written notice of the defendant’s intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the defendant, upon whom the defendant intends to rely to establish such alibi unless previously supplied.
Appellant filed notice of the alibi evidence on December 1, 2006, three days before trial was scheduled to commence, and identified appellant’s mother and brother as alibi witnesses. While voir dire was proceeding, appellant made the alibi witnesses available to the State; however, appellant’s brother refused to answer the questions of the State’s investigators. The State requested the alibi evidence and witnesses be excluded as untimely. The trial court excluded the evidence pursuant to OCGA § 17-16-6, 5 finding there was prejudice and bad faith on the part of appellant for failure to timely come forward with his alibi evidence.
Appellate courts in this state have held that the prosecution is prejudiced when it does not have the full ten days to investigate alibi evidence.
Freeman v. State,
4. Appellant contends the trial court erred when it failed to give certain jury instructions. Specifically, appellant argues the trial court erred when it refused to give a charge on “accessory after the fact,” refused to give a charge on “mere presence,” gave the pattern charge for “immunity or leniency granted a witness” rather than his requested charge on informant testimony, and refused to give a charge on alibi. For the reasons below, the trial court did not err.
(a) A defendant cannot be both a party to a crime and an accessory аfter the fact.
Vergara v. State,
(b) A trial court does not err in refusing to give a requested charge when the evidence at trial does not support it.
Sullivan v. State,
(c) “ £A trial court’s refusal to give a jury charge in the exact language requested by a defendant is not еrror if the charge given by the trial court substantially covers the applicable principles of law.’ [Cit.]”
Stewart v. State,
(d) The evidence did not warrant an instruction on alibi. As set forth in Division 3, supra, the trial court properly excluded alleged evidence of an alibi and, at trial, the only evidence of an alibi was that a call was made from appellant’s house to either thе cell phone of Sean Thorpe or the cell phone of Webster Wilson at about the time the crime occurred. Sean Thorpe testified that appellant’s mother was calling to locate appellant. The evidence proffered at trial was insufficient to warrant the trial court to give an instruction on alibi and so there was no error.
5. Appellant claims the trial court erred when it did not allow him to cross-examine Sean Thorpe about his involvement as a State’s witness in a prior, unrelated murder trial. The trial court allowed testimony that the witness had testified in a prior murder
case under an immunity agreement, but would not allow defendant’s counsel to go into the specific facts of the prior murder case because it was irrelevant. Because appellant did not make an objection on the record regarding the trial court’s ruling on
6. Appellant contends that several jury charges were given in error. Each contention is addressed below.
(a) Appellant contends the trial court’s charge on “aсcomplice testimony” was erroneous. We disagree. The trial court’s instruction was taken directly from § 1.31.90 of the Council of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed.). Although appellant contends there was no accomplice other than Sean Thorpe and that the language “the testimony of one accompliсe may be supported by testimony of another accomplice,” should not have been included, appellant’s contentions are not borne out by the evidence at trial. Two witnesses other than Sean Thorpe were arguably accomplices to the theft of the Ford Taurus. Therefore, the trial court did not err.
(b) Appellant opines that the trial court erred when it gave the State’s requested charge on “deliberate ignorance.” Pretermitting whether the facts warranted a charge on deliberate ignorance, 7 any error was harmless in light of the overwhelming evidence of appellant’s guilt.
(c) Appellant contends the trial court erred when it gave repetitive definitions for simple assault. Apрellant was charged with four counts of aggravated assault. While instructing the jury, the trial court went through each of the four counts and defined all elements contained within each count, including assault. The trial court’s repetitiveness was not error. See
Clark v. State,
7. Appellant argues that the trial court erred when it denied his ineffective assistance of counsel claim. As the basis for this claim, appellant contends that his attorneys provided him ineffective assistance when they failed to timely serve notice of appellant’s alibi evidence. At the motion for new trial hearing, appellant’s attorneys testified that they discovered a theoretical alibi defense when search ing through phone records produced by the State in late November 2006. They talked with potential alibi witnesses and then gave notice of the alibi on December 1, 2006. Prior to that time, appellant’s attorneys had no independent evidence of an alibi. The trial court determined that the attorneys’ actions did not constitute deficient performance. The trial court’s decision was not in error.
Judgment affirmed.
Notes
On April 26, 2006, appellant was indicted with Michael Thorpe and Webster Wilson for the malice murder of Jennifer Ross, felony murder of Jennifer Ross based on aggravated assault with a deadly weapon, felony murder of Jennifer Ross based on aggravated assault with an intent to rob, felony murder of Jennifer Ross based on possession of a firearm by a convicted felon, aggravated assault with a deadly weapon of Brett Finley, aggravated assault with intent to rob Brett Finlеy, possession of a firearm during the commission of murder, possession of a firearm during the commission of an aggravated assault, and theft by receiving stolen property. The joint trial was conducted from December 8 to December 16, 2006, before a jury. Appellant was convicted of the felony murder of Jennifer Ross (aggravated assault with intent to rob), aggravated assault with intent to rob Brett Finley, and theft by receiving stolen property. He was acquitted of the other charges. Appellant was sentenced as a recidivist and received life in prison for the felony murder, twenty years to be served consecutively for aggravated assault, and ten years to be served consecutively for theft by receiving. Appellant moved fоr a new trial on January 2, 2007, and amended the motion on September 24, 2007, and on October 2, 2007. A hearing was held on November 19, 2007, and the motion for new trial was denied on August 15, 2008. Appellant filed a notice of appeal on September 11, 2008. The case was docketed to the January 2010 term and oral argument was had on February 9, 2010.
This Court affirmed co-defendant Michael Thorpe’s conviction in
Thorpe v. State,
This Court affirmed co-defendant Webster Wilson’s conviction in
Wilson v. State,
Sean Thorpe became an informant and was not prosecuted pursuant to an immunity agreement.
OCGA § 17-16-6 provides as follows:
If at any time during the course of the proceedings it is brought to the attention of the court that the state has failed to comply with the requirements of this article, the court may order the stаte to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and had faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. If at any time during the course of the proceedings it is brоught to the attention of the court that the defendant has failed to comply with the requirements of this article, the court may order the defendant to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. The court may specify the time, place, and manner of making the discovery, inspection, and interview and may prescribe such terms and conditions as are just.
Pretermitting whether the trial court affirmatively allowed or permitted the State to file its alibi demand more than ten days after appellant’s arraignment, the matter is not preserved for review because appellant did not raise the timeliness of the State’s demand to the trial court.
White v. State,
“A deliberate ignorance instruction is appropriate when the facts support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution.”
Perez-Castillo v. State,