Hyman v. StateHyman v. State
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- Before:
- Carley
Autouri Holcomb shot and killed his girlfriend and, the next morning, went to the home of his friend Algernon M. Hyman. Police obtained a warrant for the arrest of Holcomb, searched for him in various locations,
1. Hyman contends that the evidence is insufficient, because the State did not show that the death of Officer Hester was a foreseeable result of the false statement. See Ford v. State, 262 Ga. 602 (1) (423 SE2d 255) (1992). Pretermitting consideration of that issue, however, we find that the cases of Hill v. State, 250 Ga. 277, 279 (1) (b) (295 SE2d 518) (1982) and State v. Crane, 247 Ga. 779 (279 SE2d 695) (1981) are controlling and require reversal of Hyman’s felony murder conviction.
Georgia’s felony murder statute provides that “[a] person also commits the offense of murder when, in the commission of a felony, he causes the death of another human being irrespective of malice.”
We do not address those remaining enumerations of error which
concern only the felony murder charge, since the conviction therefor no longer stands. See
Stephens v. State,
219 Ga. App. 881, 883 (2) (467 SE2d 201) (1996). However, the evidence clearly authorized a jury to find, beyond a reasonable doubt, that Hyman lied when he told the police that Holcomb was not present and, therefore, that Holcomb was guilty of the crime of making a false statement.
2. Hyman exercised all 12 of his peremptory strikes against white prospective jurors, 11 of whom were male. The State challenged these strikes pursuant to
Georgia v. McCollum,
505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992), which extended the analysis
The record shows that, contrary to Hyman’s assertions, the trial court’s inquiry did not end once it heard the explanations given by the defense. Instead, at the trial court’s request, the district attorney responded to several of those explanations. “[I]t is not necessary for the trial court to make an explicit finding that the offered explanation is valid at the conclusion of step two in the analysis. [Cits.]” Curry v. State, 238 Ga. App. 511, 514 (1) (a) (519 SE2d 269) (1999). The record is sufficient to establish that, rather than omitting step three, “the trial court accepted defense counsel’s ‘explanations as race-neutral under the second step of the test, but at the third step chose to disbelieve them following the [S]tate’s response.’ [Cit.]” Curry v. State, supra at 514 (1) (a). Hyman’s attorney recognized that he had incorrect information as to one of the reinstated jurors, and he even offered to remove the strike. Although defense counsel’s reason for striking the other two reinstated jurors was their lack of responsiveness on voir dire, the district attorney indicated that the attorneys simply failed to propound questions for which those jurors had an answer and that other unchallenged jurors also had no answers. This response from the State was sufficient to show discriminatory intent and, therefore, to carry its burden of persuasion as to the third step of the Batson-McCollum analysis. Curry v. State, supra at 514 (1) (b).
3.
The appearance of the incorrect word in the transcript of the charge is “obviously a mere verbal slip or a transcription error, considering the similarity in the sound of the two words.” Fruhling v. State, 233 Ga. App. 544, 545 (5) (505 SE2d 47) (1998). Assuming that the error was the trial court’s and not the reporter’s, such a palpable “slip of the tongue” is not reversible error if it clearly could not have misled or confused the jury. Williams v. State, 267 Ga. 771, 773 (2) (a) (482 SE2d 288) (1997). Any misstatement did not relate to Hyman’s defense and was not substantive. See Gober v. State, 264 Ga. 226, 229 (4) (443 SE2d 616) (1994). Furthermore, the trial court correctly used the word “matter” when it read the indictment to the jury. See Arnold v. State, 271 Ga. 780, 782 (523 SE2d 14) (1999); Ramsey v. State, 145 Ga. App. 60, 62 (7) (243 SE2d 555) (1978), rev’d on other grounds, 241 Ga. 426 (246 SE2d 190) (1978). Thus, there was no reversible error, if there was error at all.
4. The trial court charged the jury that “[a]ll witnesses who take the stand and take the oath are presumed to speak the truth.” Although we have recommended that such charges not be used, we have repeatedly “held that the use of such a charge is not unconstitutional and does not constitute reversible error. [Cits.]” Whatley v. State, 270 Ga. 296, 300 (10) (b) (509 SE2d 45) (1998). Moreover, the trial court gave extensive instructions on burden of proof and credibility, including a charge on the jury’s sole prerogative to determine what testimony to believe. O’Donnell v. State, 258 Ga. 782, 783 (2) (374 SE2d 729) (1989); Lawrence v. State, 238 Ga. App. 102, 104 (2) (517 SE2d 822) (1999).
5. Hyman further contends that trial counsel developed a conflict of interest and rendered ineffective assistance by failing to withdraw. Hyman did not preserve this issue for review, as he failed to raise it in his motion for new trial or at the hearing thereon. “[A] 11 known bases for alleging ineffective assistance must be raised and determined
6. Hyman enumerates as error the trial court’s failure to charge that prior consistent statements are admitted only when the veracity of the witness is in question as to a material point. See Woodard v. State, 269 Ga. 317, 320 (2) (496 SE2d 896) (1998); Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). However, this principle does not concern the jury, but obviously relates to the determination of whether prior consistent statements are admissible for the jury’s consideration as evidence. “It is the province of the judge in all instances to determine the admissibility of evidence.” Brock v. State, 206 Ga. 397, 400 (1) (57 SE2d 279) (1950). The trial court did not err in failing to give an explanatory instruction, in the absence of any request therefor. Tiller v. State, 196 Ga. 508 (5) (26 SE2d 883) (1943). Furthermore, the trial court would have erred had it simply left to the jury the question of whether any prior consistent statements were admissible. Rouse v. State, 135 Ga. 227 (2) (69 SE 180) (1910); Cain v. State, 41 Ga. App. 333, 341 (153 SE 79) (1930). Accordingly, we find no error.
Therefore, we reverse and remand the case with direction that the trial court vacate Hyman’s conviction and sentence for felony murder and sentence him instead for the crime of making a false statement. See Brewer v. State, 271 Ga. 605, 606, 608 (523 SE2d 18) (1999).
Judgment reversed and case remanded with direction.
All the Justices concur.
Notes
The crimes occurred on September 12, 1996. The grand jury returned its indictment on November 11, 1996. The jury found Hyman guilty on May 4, 1999 and, on the same day, the trial court entered the judgment of conviction and sentence. Hyman filed his motion for new trial on May 24, 1999 and amended it on October 4, 1999. The triad court denied that motion on January 10, 2000, and Hyman filed his notice of appeal on the same day. The case was docketed in this Court on February 8, 2000 and submitted for decision on April 10, 2000.