*1 mаy light pleadings, of the be construed issues made charge. presumptions evidence and the . . . possible [Cits.] are favor validity given verdicts, the which if and a construction will be ” uphold will [Cit.].’ them. may page regarded ambiguous,
Moreover, if two as even were it integrity affecting be stricken for that and reason whole judgment. ness Ga. verdict as reduced to The court West “ Pulpwood, supra, say: ambiguous to went on ‘Even if the verdict is susceptible uphold . . . it constructions, and two one which would uphold it, one of and defeat would is to would that which it Haughton applied. App. [Cit.]’ Judsen, 308, 297).” Fountain, 283, See also Suber v. 290-291 Again referring supra, Pulpwood, appellant West to if thought irregular ambiguous, the form it should have said so at time of its rendition before so that could be to corrected its satisfaction supra Fountain, retired. It too late Suber v. now. 291. Presiding Judge joins
I am authorized to state that Deen in this part part. concurrence in and dissent 7, Decided March
Rehearing denied March appellant. Clark,
Fred S. Brent J. for
Savage, George appellee. Lewis, L.
68982. KORNEGAY et al. THE STATE. Judge. Beasley, Kornegay Tennyson charged rape, ag- Defendants were with gravated They kidnapping bodily injury. assault, and two counts of with rape, Tennyson were convicted of and defendant was convicted simple battery. Tennyson also of was sentenced to a fifteen total of years Kornegay years. They represented by re- twelve were tained counsel at trial. Following sentencing, conviction and on counsel filed a motion general grounds. hearing
the filed a added tance and motion, Before on the new counsel repeated general grounds
motion for new trial which grounds two more. The two additional were ineffective assis- representation inflammatory of counsel and remarks allegedly prejudicial their counsel which Al- to the defendants. though apparently there withdrawal, was no formal the substitution hearing, by everyone. attorneys tacitly agreed After a
of court on represents defendants now new counsel motion. The denied the appeal judgments sentence. of conviction from attorney’s closing argument, Appellants error their enumerate as ef- ground denied them their that it that it was such on the guaranteed Amendment the Sixth of counsel fective assistance *2 objection to the ar- was made No Constitution. the United States to gument any way. it in to affect intervene trial, the court at nor did couple young theory that case was of the Defendants’ only hitchhiking inter- to the sexual consented not from Wisconsin partial payment actually for a offered it but course with the woman tо this both testified Columbus, Defendants their destination. to ride effect. jury closing argument that on the tack was based to Counsel’s despicable, parties that what but involved was of all four
the behavior “sorry” despite rape indi- what that was not defendants had done proved beyond a reasona- were, the state had not defendants viduals Ms. Dan- the consent of was without doubt that the intercourse ble iels. It was further injury argued no threats had authored that defendants kidnapping companion ever oc- that no to Ms. Daniels’ curred. jurors, asking appealed that de- them to find to the not
Counsel episode engaged in, but for the wеre blameless individuals fendants that certainly they guilty course blasted of crimes. He of were not that the verdict demonstrate of the hitchhikers and asked character community. people But he said not welcome that such trial], ‘Y’all [when I to see them before “I told them went defendants: telling [referring seen,’ to these I have ever are the sorriest bastards defendants]. lynched years ago niggers said, I or 50 would ‘Y’all 40 rape guilty you’re something this, the law like not under for because these this with further but ” you people guilty just reinforced are.’ He are as as regarding demeaning race, and references and stories up by saying, just argument “It he summed it all at the end of his ain’t doing through right hitchhikers] come here [the them for they niggers to do what not for the what did and it was two did.” complain appeal, meet that their On defendants guaranteed of counsel
the standards for effective assistance trying it to make he went so overboard Sixth Amendment palatable that appear acquit having that for the them approving behavior, he character and was of defendants’ actually up defense of abandoned the sides with the state and took calling he had ever clients, bastards them “the sorriest his seen,” “niggers.” Held: lawyer competent, presumptiоn “the bur- a Because of the den rests on a violation.” the accused to demonstrate constitutional (1984). Cronic, States v. LW The standard United 4562-3 ineffectiveness,” which to measure claims of “actual as claimed Washington, by defendants, is set out in Strickland v. LW 4565 (1984): judging any ineffectiveness,”, “The benchmark claim wrote, Court “must be conduct whether counsel’s so undermined the proper functioning process trial adversarial that the cannot be produced having just question relied on as result.” Id. at 4570. parts: “First, into divides itself two must the defendant show that performance requires showing counsel’s was deficient. This that coun- functioning sel made so errors serious that counsel was not as the guaranteed Second, ‘counsel’ Sixth defendant Amendment. performance prejudiced the defendant must show that the deficient requires showing This defense. that counsel’s errors were so seri- deprive trial, ous defendant a fair result is trial whose Davenport reliable.” Id. 4570. See Prevailing succinctly standards for counsel are the ABA stated Justice, Standards for Criminal which includes The Defense Func- lawyer arguments tion. It lated to “[a] commands that not should make calcu- *3 passions prejudices jury.” the inflame or of the General Stan- (c), Draft). (Approved dard 7.8 “The Defense Function” Remarks of evoking religious, prejudice racial, counsel made or ethnic never should be justice. in Standards, a court of ABA “The Defense Function” (Commentary) 305. argument, closing theory
Counsel wide in has latitude in choice of style, language. advanced, in tactics, to choice of court will The not second-guess attorney responsibility the has who undertaken the for representing fight against brought. charges his clients in their the As Supreme closing arguments per- the Court “In has said: side is each any argument reasonably suggested by mitted to make which is the 237) (297 325, evidence.” Durden v. State, 329-330 SE2d (1982). parameters long ago explained The State, in Walker v. 5 (63 App. 142) (1908): go Ga. 367 SE “Counsel should not outside the appearing facts in the case and the inferences to be deduced there- lug they part from, and in case; extraneous matters as if were a upon upon may record, but the facts in the the deductions he may attorney any therefrom, choose to draw an make almost form of argument exceptions course, he desires. Of there are certain dictated by the considerations; of decorum the court and similar but the re- objected exception. marks here to are within no such We are not in- any hampering clined to countenance undue of сounsel to argue may expedient.” in cases whatever manner seem to them most explained: This was further “All reasonable latitude should be al- attorneys arguments jury lowed in their to the on the facts and on 282 Martin the facts.”
inferences and deductions from App. (63 good today. See is law Walker SE Such 606 (205 260) (1974); Adams, Dickens v. SE2d Ga. 36-37 232 468) (1976). App. 564, Ga. entirety closing argument in its to ascertain The must be read we While to the constitutional standards. whether counsel failed meet approve used which was not the offensive and crude do any way throughout, or we do not find that it showed intimated joined asking he or that had conviction that counsel hаd abandoned the defendants’ state contrary. Quite cause. beyond permissibil- closing argument goes But the bounds by opens ity in of race to be considered that it a door for factor determining guilt rec- innocence of defendants. or any way. acquiesced in it not that defendants ord does indicate acquiesced presume even Can the law that these defendants just employ tactic, because knew their would this unlawful prohibi- jump up ignored object when he the law’s argument, “niggers” closing the finale of his tion and called them the case? repeated epithet have been use of the racial should
Cоunsel’s very stopped reprimand by strong least, court, a the trial at with argument defen- if as a trial tactic on even counsel meant dants’ behalf. See OCGA 17-8-75. line of Line § As Seaboard Coast stated 74) (1980): appellate App. “The Towns, R. v. Ga. reasonably long argument calcu- courts of this state have lated to held that an improper appeal prejudice to and that or evoke racial denying mistrial, court, must ‘some action trial prevent a motion for take prejudice party or rebuke to coun- unfair admonition eradicating purpose sel to the with the instruction and/or prejudicial 401, 406 Brown v. effеct of remarks.’ (1964).” reprimand in- did counsel or The court not imprimatur judicial jury, giving its struct the thus silence subliminally being tolerance to the of race least relevant factor prejudice engen- guilt Appeals to or innocence. consideration dered inferiority place system in our belief in racial have no *4 (93 justice, Carolina, 524 SC Ham v. South 409 U. S. criminal 848, see 46) (1973), theory prejudice 35 if the LE2d even would favor. work defendants’ formally officially prejudice
The factor racial has been squelched society long struggles. Where in our and arduous after Certainly, informally, then, its use remains cannot be invoked it cannot be cоndoned. running by law, in a without counsel court guarantees. counter and Fourteenth Amendments’ to the Sixth being incipient prejudice highly and cancer- volatile and Racial performance factor, counsel’s ous its introduction rendered deliberate
283
(84
Alabama,
982,
deficient. See Hamilton v.
The second
is whether
the deficient
prejudiced
against
prejudice
the defense. Protections
racial
derive
principal purpose
constitutional stature from a
as well as from the
language
adopted
of those who
Ham v.
Fourteenth Amendment.
supra,
Carolina,
South
error,
Judgment Pope Deen, J., reversed. Benham, P. JJ., concur. specially. Deen, McMurray, J., P. Benham, J., J., concur P. judgment only. Birdsong, Carley concurs in the Banke, J., J., C. P. Sognier, JJ., dissent. Presiding Judge, concurring specially. Deen, majority opinion directly key and dissent focus on the issuе whether, this case of in view of the offensive used lawyer, regard defendant’s own was allowed to defendants as *5 284 causing infecting
“racially persons,” and verdict inferior harmful error. prosecutor
During
closing argument,
and defendants’
drawing
in
and deductions
conclusions
counsel have wide latitude
illogical, unreasonable,
absurd.
evidence,
or
however
from the
Griffin
797) (1984).
App. 287,
Even charac
State,
292
parties
animal,
equating
beast,
brute,
an
the case as a
terizations
dog
Miller v.
held not to be error.
a mad
have been
and
(5) (177
(1970);
Shelton
Ga. 730
with a differ
763,
ence,
There is a distinction
categorizing
however,
on the one
defendants as “animаls”
resorting
“nigger,” “sons-of-bitches,” and
to slurs such as
hand and
(and
lynching
declaring
they would have been fit for
“bastards”
years ago)
on the other.
had the same conduct been exhibited
The former
gorical,
oratory,
extravagant,
flight
is nevertheless alle
while
personal
poetical,
mythical,
literal,
while the latter are
and
being,
character assassina
slurs
attacks on a human
and definite
and
religion,
personal
against
sex,
race, creed,
one’s
tion. Crude and
slurs
century
ancestry
origin
place in
should have no
twentieth
or national
jurisprudence.
(3) (39
chiefly
Hoxie v.
944) (1901), prosecutor during closing argument uttered wherein thе they nothing “[n]egroes, rule, status; are of low moral care as a they marriage just up relation; with each other and and about the stay take they get better, like until tired or find some other one marrying.” go up another, never think about off and take with (1) Hoxie was are offered about Hoxie: while Several observations century slurs were written at the turn of the perhaps at a time when racial unfortunately, necessarily thought common, and, more not grossly improper, still concluded that the some as the court there (2) racially highly improper; prosecutor’s derogatory remark was Supreme forthrightly equivocation Hoxie, and without Court away identifying shy cases, should be done in most setting from objectionable comment so that there could be out detail the (and question must do no less no about its condemnation this court despite anyone’s indignation. If this court is here embarrassment or applicable salient, facts, ever doubt as to inclusion or exclusion of latter); always than the then we must lean toward the former rather (3) prosecutor’s in Hoxie not for use of comment was obnoxious any racially implications superior supremist inflammatory words, racial but its (4) improper alone; whereas Hoxie and attitude (and prоsecutor objected the defen- comment made lawyer attorney), own uttered the dants’ this case defendants’ improper previously guage derogatory short, In lan- remarks. mentioned inflammatory, obviously more used in this case were far (or more), equally derogatory Hoxie, and there was no than those object one in the courtroom here to to such on behalf of the de- fendants. (and language) practiced by lawyer
The attitude the defendants’ in this case has demonstrated itself to be a time-dishonored one. Even *6 during century occasionally guilty the courts the nineteenth of (1860) 424, similar indiscretion. See Chоice v. (“Ethiopian skin”); change his reference is also made to the memo- (1889). honoring judges rial Compare deceased contained parties, some of the in the anecdotes about the .lawyers, judges by Georgia and in some actual trial cases recounted judges Gray court, one of the Powell, book, first of this Arthur his I Again 1943). (originally published Probably Can Go Home the popular single publication during century most the nineteenth Origin Species by “On the of Means of Natural Selection or the Pres- Struggle (emphasis sup- ervation Favoured Races in the of for Life” plied), high by many today. which is still held esteem The under- provided many lined subtitle inferences for that class structure was type fixed the laws of nature in fittest, a of racial survival of the de-emphasized accept but this connotation is now even those who major concept and are believers of the advanced this much read publication. majority opinion upon century relies twentieth ABA stan- justice, inflaming dards for criminal which are calculated to deter
passions prejudices jury. adopt and This court should the ma- jority opinion guidelines up reject and therein, set the ancient bygone grossly improper language and outmoded views of a era. The during though objection, racial slurs trial, made even without emphasized cannot be sanctioned this case. It should that rever- totality sal in this case is demanded of the circumstances. It may solitary be that a remark condemned, of the nature here or such setting, by proper remark, objection in a different followed and cur- require necessarily instruction, ative would not reversal. Resolution case-by-case analysis considering should involve a all the circum- stances. preservation implications supe-
The idea of races, of favored rejected by impermissible rior or inferior races should be this court as — — only in а court trial. There one race the human race and this places pro- all on notice that no one is above or below the law which equal protection regardless religion, all, vides sex, race, creed, ancestry origin. or national Judge joins special
I am authorized to state that Benham in this concurrence. specially. Judge, concurring Benham, opinion by majority spirit and the I in the letter concur Judge Presiding special Beasley Deen,
Judge
concurrence
and the
undergirds
reasoning
specially
illuminate the
I
concur to
ruling
distinguish
majority opinion
in Hoxie v.
and (3) (39
944) (1901), upon
relies.
which the dissent
SE
Ga. 19
inflаmmatory
assistance of
remarks and ineffective
The issues of
they
closely
can
in the case before us that
interwoven
counsel are so
be discussed as
one,
treatment of
in view of the excellent
tautologi-
opinion,
rehashing
by majority
of them would be
facts
special
except
con-
this
on matters addressed
cal
currence.
bear
horrendously reprehensible
epi-
racial
some
This case contains
pro-
such a
thets,
frowns on the use of words of
and while this court
insulting
genteel
nature,
made to
no
reference can be
vocative
them
impact
destroying
opinion
of the сase.
rep-
only
their
Therefore,
rehensibility.
these words
to underscore
we mention
“nigger”
During
times,
trial,
six
the word
word
was used
*7
twice,
These words
and the word “bastards” once.
“sons-of-bitches”
significance
light
special meaning
in
of the
when viewed
take on
charge
prosecution’s presentation
case,
which concerned
alleged
rape
during
offenses,
wherein,
it is
the course of
interracial
people.
that
hated white
that the two black defendants said
relying
supra,
dissent,
State,
v.
v.
in
on Hoxie
The
Sanford
868) (1980),
App. 541,
contends that
Ga.
“highly probable”
disfavored,
that the
while racial slurs are
language
guilty
and that a new
did not contribute to the verdict
correctly apply The dissent fails to
trial would be unwarranted.
explicit language
Hn. 3: “The use of unfair
of Hoxie
improper language by
arguing
held
in
will not be
an
case
injury
possibly
no
could
for a
trial when it
certain that
cause
new
party.”
losing
It cannot be said with
have resulted therefrom to the
certainty
language
injure the defendants.
that this
say
reprehen-
repeated racial slurs of such
It defies reason to
rape
magnitude
im-
do not
in
trial of this nature
sible
an interracial
Supreme
adversely
pact
jury.
Court, as
The United States
on
670)
early
States,
52 LE
destroys viability of American jurisprudence. body might disagree
While we as a as to the effect of the lan- guage unanimously case, in this the abhorrence of such racial slurs is clearly language condemned which is evident of the dissent majority language “[we] which states that as much as the find the morally legally reprehensible.” as well as repulsion only precedent, Our here is anchored not but also principles decency appellate play. universal courts of this of common and fair fulfilling obligation provide guidance
State their beyond and direction to the bench and bar must look the isolated creating atmosphere incidents and on the need for an conducive focus to a fair trial. say every IWhile do not instance where racial slurs are interpose objection introduced, the trial court must an if none is offending party; say made and admonish the I do that when such potential infecting process, comments have the the trial such a step must be taken. It makes no difference whether racial slurs are prosecutorial ploy used as a potent tactic; or a defense the venom is no less poisoning legal process, openly and such tactics must be forthrightly condemned. expressed For above, the reasons mentioned in addition to those opinion, majority in the I concur. Presiding Judge joins I am authorized to state that Deen
special concurrence. Judge, dissenting. Banke, Chief join fully Judge Carley’s points
While I dissent, I believe a few emphasized. finding should be There is no division on this Court the However, used defense counsel to be odious and obnoxious. judgment
I do not believe we are entitled to substitute our question strategy for that of defense counsel on a of trial in a case strategy obviously large *8 where that extent, was effective to a in that acquitted felony the defendants were of three of the four offenses charged. with which were thing accept It is one to the defendants’ contention that their trying palatable jury counsel went “overboard to make it for the to acquit having appear jury approving them without that the of ” quite thing defendants’ character and . . behavior . It is another to ground. may Although reverse the defendants’ convictions on this we agree step that the trial court had the to and rebuke counsel protect dignity proceedings, in order to I do not believe the court’s failure to do so inures to the benefit of the defendants under majority’s the circumstances of this I case. fear that the effect of the opinion permit error into the to build reversible defense counsel is to pursuing going expedient through a “overboard” record verdict. favorable
I the convictions. would affirm Birdsong Judge Presiding to state that
I am authorized Carley Judge join in this dissent. dissenting. Judge, Carley, disap- express majority, my opinion, its haste to
In
admittedly
by
proval
and crude lan-
offensive
that is warranted
sight
employed
guage
counsel,
The mere uncor-
of one fact.
loses
closing
language in the context of
rected use of offensive and crude
always
argument
ipso
ground
warrants the rever-
is not
facto a
improper language
use
unfair or
a criminal conviction. “The
sal of
by
arguing
for a new trial
will not be held cause
an
case
pоssibly
injury
there-
have resulted
that no
could
when it is certain
(3) (39
party.”
losing
v.
that since it was own repri- failing grossly improper language, erred the trial court Nonetheless, de- “[w]hat we must mand counsel on its own motion. argument counsel this case re- is the uncorrected cide whether sulted in a proper miscarriage justice. such [Cit.] The standard for ‘ highly “highly probable i.e., test,” that it a determination is the judgment.’ probable [Cit.]” to the that the error did not contribute Sanford opines language majority in the instant that the offensive prejudicial appellants “allowfed] the as it case was insofar racially persons regard conviction for that [them] inferior whose as opinion, easily (Majority reason would therefore be more page reached.” 283.) language have that effect could There is no doubt that the morally majority, I, to be as much as the find that acquitted appellants legally reprehensible. However, well as aggravated bodily injury by kidnapping same with assault and argu- supposedly prejudicially inflamed counsel’s was so *9 dispositive reaching merit that as the factor in its it considered race expressly urge in verdict. Counsel did not to cоnsider race reaching argument its verdict. Insofar as counsel’s could be construed implicitly fostering appellants’ acquittals result, that of crimes for they might vindictively have been convicted been had disposed solely motivations, to act out of racial leads me to conclude “highly probable” prejudice majority that it is that the that the finds appellants’ closing argument is, fact, in and own counsel’s in non-existent certainly jury’s appellants to the verdict. If contribute being tried, had been convicted of all the crimes for which were I majority’s would find more merit in the tions were infected conclusion that their convic- gross unjustified language their counsel’s employed in their defense and would concur in the reversal of those convictions. majority precedent
Moreover, the would set an in untenable recognizes, instant case. It hand, on the one “[c]ounsel that has wide closing argument, theory latitude choice of not advocated, choice of be style, language.” recognizes tactics, It also that a “court will second-guess responsibility who had undertaken the representing fight against charges brought.” for Yet, guessing majority opinion his clients in their majority sanctioning just would, fact, such second- appellants’ its reversal of convictions. The effect of the acquiesce
is to authorize a client to in his counsel’s totally decision as to a matter of then, trial tactics and if not satisfied by urging with the result of tactics, those trial to secure a reversal appellate prejudicial court that his own counsel’s trial tactics were to him. appellants acquitted case, In of some crimes and as the
majority correctly argument appellants’ finds, the counsel does not any way joined show or asking intimate that he had the State “in for conviction or that he had Quite abandoned the defendants’ cause. contrary.” (Emрhasis supplied.) 282.) (Majority opinion, page being true, This I do not believe that we are authorized to reverse the by second-guessing instant convictions the effectiveness of the trial acquittal tactics of counsel secured, who has if not a total for his cli- partial Although ents, way at least a one. we should in no condone encourage tactics, those we should not reverse unless those tactics prejudiced the clients. language “grossly Hoxie, As was true in I find counsel’s to be
improper” in However, the extreme. Hoxie, as was also true in I find prejudice appellants no upon and therefore nо reversible error based language argument. counsel’s uncorrected use of that This is a court for the law, correction of errors of not for the correction of “grossly improper” language employed by mere guessing counsel or for second- presentation
trial counsel as to the most effective of his cli- indictment of majority’s not from the I dissent jury. ents’ case to the majority legal from the result only but language counsel’s I importantly, case. Most compel the instant finds application holding on the future majority’s fear the effect review. principles judicial *10 Banke, Presiding Judge Judge to state that Chief I am authorized dissent. Judge Sognier join this Birdsong and Decided March Rehearing 29, 1985 denied March McDougald, C. appellants. Alvin for Tillis, III, Wayne G. Thomas Attorney, District Sparks B.
Willis Matthews, Attorneys, Assistant District appellee. J. for MUNFORD, INC. v. ANGLIN.
68998. Judge.
Carley, to set complaint against appellant, purporting filed a Appellee case prosecution gross negligence. The forth claims of malicious trial, Ap- appellee. returned a verdict for proceeded and the pellant appeals. its motion for a Appellant
1. enumerates as error the denial of appellee’s prosecution. as to claim of maliсious directed verdict Majik of a Market store manager relevant facts are as follows: The by appellant, witnessed an individual operated that was owned and from one of pump gasoline ten dollars’ worth of into an automobile away paying. The gasoline pumps the store’s and then drive appellee, the individual was who was a manager store believed that morning, the store man- regular following customer of the store. The gasoline. Appellee ager police appellee notified the had stolen officer, at time he denied tak- questioned by police was later that, timе, appellee also ing gasoline. There is evidence police during evening officer of his whereabouts informed the fur- of several alibi witnesses. There is question and of the identities receipts gasoline purchased for appellee produced ther evidence that questioned again was evening question. Appellee on the elsewhere later, gave time he them the same police days several at which to be issued Subsequently, appellant caused a warrant information. held, hearing A was appellee, and he was arrested. committal lacking. Accord- probable in a cause finding which resulted was dismissed. ingly, charge against appellee are prosecution malicious “The essential elements of a claim for