*1 Justice dissenting. Sears,
I respectfully join Presiding Justice Fletcher’s dissent. Further- more, I cannot with the agree majority’s analysis that simply because Loren, 15-year-old raised in girl deplorable conditions and herself molestation, victim mistreatment was convicted on the count, malice murder error charging associated with the felony murder count is rendered harmless. When faced separate mur- death, der counts the same I regarding believe is unwise for the court to make upon distinctions based technical legal niceties that cannot also be made by jurors unschooled in the law’s complexities. — 3, 1997
Decided December 19, 1997. Reconsideration denied December Jr., Sam B. Sibley, for appellant.
Daniel J. Craig, District Attorney, Charles R. Sheppard, Assis- tant Attorney, Baker, District Thurbert General, E. Attorney Mary Westmoreland, Beth General, Deputy Attorney Smith, Paula K. Senior General, Assistant Attorney for appellee.
S97A0945. MATTHEWS v. THE STATE. Justice.
Thompson, Joe Lorenzo Matthews was convicted of the felony murder of a clerk, convenience store Earls, Avalon and the armed robbery of the owner, store Thelma Johnson.1 Finding no error, reversible affirm.
Matthews approached the counter of Johnson’s General Store in Stillmore, Georgia, with a B-B gun in hand and Johnson, confronted the owner/manager. When Johnson removed a pistol from her pocket, Matthews jumped counter, behind the struck head, Johnson in the and gained possession of her gun. Matthews demanded that Johnson open the cash register. As Matthews gathered the contents of the drawer, cash Johnson fled through front door. Matthews ran to occurred, 5,1996. January The crimes on February 2,1996, Matthews was indicted on charged felony Earls, with the malice murder and robbery murder of and the armed 5, August 1996, August 7, 1996, Johnson. Trial commenced on and on Matthews was found guilty robbery. August 9, 1996, murder and armed Matthews was sentenced on imprisonment life bery. years murder and to a consecutive sentence of 20 for armed rob September 6, 1996, A motion for new trial was filed on and amended on November January 27, 1996. The motion was appeal denied on A February 1997. notice of was filed on 19, 1997, 1997. The case was docketed in this Court orally argued on March and was July 7, 1997. door, clerk, the back where he encountered the Avalon Earls. Mat- Earls, thews testified he did not intend to shoot but as he was fleeing, the momentum of his arm caused Johnson’s gun discharge Earls was shot and killed. then Matthews shot the lock off the back door and fled.
1. The evidence was sufficient under the standard of Jackson v.
*2
560)
2. Matthews asserts that the court in erred to strike failing two jurors for cause based on their familiarity with the defendant and the victims.
The first juror stated voir dire that during the children of the vic- tim a convenience store frequented owned, which she and that she had heard “a lot of information” about the incident. She had previ- ously been a teacher’s aide and recalled that the victim’s children had attended the school where she worked. When questioned by pros- the ecutor, she stated that she could be impartial, though even she knew the children of the deceased. She also that acknowledged she had not formed or expressed an about the opinion and that she could set aside what she had heard to render a fair and impartial verdict.
The second juror stated that she and her family had been close friends with the family, Earls and that Earls’ youngest son and her son had grown up together. Initially stated, she “I don’t if I know case,” could be fair in this and when questioned by further defense counsel, she might stated she feel sitting uncomfortable on the jury, but she believed that she could be fair and impartial and that she did not harbor any prejudice bias Matthews. 528)
Matthews cites Lively (1992) Jones v. for the proposition juror’s that opinion own of her is not impartiality determinative, but that the court must look to all in circumstances a assessing juror’s Jones, In at qualifications. supra we observed that “a juror may be found disqualified though even he insists he is biased; therefore, juror’s of his opinion disqualification no means determinative.” explained Lively, We further at supra 511, that the court must make a factual determination as to disquali- fication based on “all the court, circumstances known to the includ- to, ing, but not limited the juror’s opinion own of his In impartiality.” Lively, juror victim, was the her employer confi- advisor, dant and her offering “‘fatherly concerning advice’” her erratic relationship They with the defendant. had also discussed matters that might brought addition, out at trial. In juror discussions with the defendant concerning relationship with the as her death, pallbearer served juror After the victim’s victim. extremely that Because of family. to her sympathy expressed victim, family, and her juror, between relationship close the trial to support a whole failed the record as that determined (based that he could be statement juror’s on the solely finding court’s con- feelings, his personal could aside juror put impartial) an verdict. evidence, impartial and render only the sider (1993), we In Garland v. Lively only need required the factual determination clarified that be made indicating on its face circumstances the record shows
where in the interest or bias has a juror compelling a potential more than the situation, the record must show In this case. render a deci- that he can own statement juror’s potential a trial court’s support in order to on the evidence sion based for cause. juror to strike this denial of a motion Garland, As in Garland, at 497. supra (Emphasis supplied.) juror that either had such case fails to show record id., case,” as would in the outcome of the bias or interest “compelling *3 juror Lively. determination under Neither a further factual require not set they so fixed that could or biases which were opinions “held State, v. Ga. decide the case on the evidence.” Wellons aside to 868) (1995). (6) (a) (463 its discre- The court did not abuse SE2d in remove the for cause. failing jurors tion evidentiary rulings. a series of challenges
3. Matthews
(a)
the State estab-
jury,
At a
outside the
of
hearing
presence
rights, acknowledged
read his Miranda
that Matthews was
lished
give
his
and
a
them,
rights
and elected to waive
that he understood
that the statement was rendered invol-
statement. Matthews asserts
informed the inter-
of the fact that he was not
untary solely by virtue
In
Miranda
light
valid
being
videotape.
view was
recorded
the defendant
waiver,
informing
of the interview without
recordation
and inadmis-
involuntary
the statement
automatically
did not
render
SE2d
State,
v.
4. Matthews contends that the court erred prosecutor impeach defense witness Dennis Matthews with his first offender record.
During prosecutor inquired, you by “[A]re cross-examination, the pled guilty the same Dennis Matthews who to the offense of theft receiving property?” responded stolen The witness the affirmative. prosecutor sought plea. Upon then introduce record of the inspection counsel, of the document defense it was noted that the plea accepted § statute, had been under the first offender OCGA 42- seq., discharged 8-60 et and that the witness had been without an adjudication guilt. objected Counsel basis, to the evidence on that testimony, sought moved to strike the and also a mistrial. The motions were denied and the document was admitted into evidence. (a) expressly provides completion
OCGA 42-8-62 of first probation “completely any exonerate^] offender criminal the defendant of
purpose rights and shall not affect of his civil liber- ties; and the defendant shall not be considered to have a criminal 6) Pender, In conviction.” Witcher held that the first offender record of an adverse in a civil witness case impeachment purposes is inadmissible for to show that the witness *4 turpitude. had been convicted of a or a crime of moral We acknowledged may impeached by that a witness evidence of a con- involving turpitude. § viction of a or a crime moral OCGA 24-9- However, 84. and the successful made the a criminal we distinction between conviction
completion probation following guilty plea of a statute, latter, under the first offender there is no 42-8-62. Under the OCGA adjudication guilt protected of defendant is stigma predicated of a criminal record. Our rationale was legislative expression statute, i.e., on the clear in the first offender to 802 impeach- purpose of record for the first offender use of a
exclude
ment since
complete
provides
probation
completion of first offender
successful
stigma of a criminal conviction.
without
rehabilitation
questioned
Witcher, the witness was
case,
inas
In the
treatment, and
offender
impeach
he received first
which
the crime for
about
by
the witness
introduced
record was
first offender
—
involving
turpitude
showing
moral
a crime
that he committed
testimony.
disprove
We conclude
contradict his
or
offered to
was not
that the
improperly
the defense witness was
record of
first offender
testimony
showing
purpose
was not wor-
that his
of
for
admitted
involving
turpi-
moral
thy
a
committed crime
he had
of
because
belief
apply
ruling
Accordingly,
both
in Witcher
extend the
we
tude.
adjudication
there is an
that unless
cases. We hold
and criminal
civil
credibility
general
impeached
may
guilt,
not be
a witness
by
grounds
offender record.2
of a first
evidence
inconsistency
recognize
rule creates an
this new
We
(214
645)
(3)
holding
State, 234
86
Ga.
our
(1975),
Favors
by
impeachment
of a
of a State’s witness
that allows
gen-
exception
plea.
to the
created an
In that
first offender
only
authorizing impeachment
of a crime
conviction
eral rule
holding
turpitude.
involving
rationale
in Favors tracks the
moral
LE2d
SC
39
Alaska,
803 bias, motive, embraces cross-examination for prior interest or but use of impeach general credibility subject only convictions discretion). judicial Accordingly, rules of this Court in Favors erred right impeach when it held that a criminal defendant’s a witness grounds constitutionally protected paramount on to the State’s legislative protecting persons successfully complete intent who probation stigma first offender from the of a criminal record. Because improperly impeachment allowed use of a first offender record for by prior supra; Gilstrap Favors, of a crime, State, conviction v. 250 (2) (301 277) (1983); progeny Ga. 814 SE2d and their are overruled. (2) (424 Metheny App. reasons, For the State, same v. 206 Ga. 275 857) (292 (4) (b) (1992); App. SE2d State, Miller v. 162 Ga. SE2d 102) 366) (1982); App. State, Moon v. 154 Ga. SE2d (1980); App. (1979), Ware v. 152 Ga. SE2d authority suggests contrary other decision, which a rule to this are also overruled.4 ruling regard erroneous,
While the trial court’s in this was it is fundamental that harm as as error must well be shown for reversal. (463 (9) 476) (1995). McIntyre State, The defense routinely gave pay witness testified on direct examination that he his testimony explain checks to Matthews to cash. This was offered to why stamps person Matthews over in cash and food $400 apprehended shortly murder/robbery. when he was after the How- register ever, the store owner testified that the cash contained about robbery, at the time of the and that she observed Matthews $800 begin empty the cash drawer before she fled from the store. Approximately in cash was found scattered on the floor $400 when police money pos- arrived. It follows that the found in Matthews’ regis- session consisted of the remainder of the contents of the cash Moreover, ter. Matthews admitted on cross-examination that he overwhelming robbed the convenience store. Given this highly probable allowing Matthews, it is that the error in impeachment jury’s of his witness did not contribute to the verdict of guilt. Johnson v. Any complaint
5. about the failure to direct a on malice verdict jury murder and error in connection instruction on malice guilty murder is rendered moot because not found Matthews was that offense. prosecutor impermissibly
6. Matthews submits com- testify. mented on his failure to
During questioned by cross-examination, Matthews was England App. See also the issue which properly preserved was not for review. videotaped concerning portions statement, custodial prosecutor hisof during an audio cas- he made statements earlier contradicted which parts responded, taped are certain “There Matthews interview. sette you if I heard hear, as would have been video, as will of that being tape made cassette when that coerced not been would’ve things completely some of the contradicted have that would Although to the contents Matthews testified on that video.” were the inquired, prosecutor produce tape, then it at trial. he failed to cassette tape? you tape. like that cassette Would “Q. That cassette play jury? you you play that cas- like Do want to that for the Would *6 up my jury, tape to discre- That is not Mr. Matthews? A. sette Okay, ya’ll attorney my then let Q. Oh. well is for. That is what tion. here it is.” decide, because testify inviting prosecutor to or comment- not Matthews was merely offering testify;
ing him use of the cas- failure to he was on his may testimony. “Though prosecutor tape support not to sette testify, error, nor is it failure to it is not comment on defendant’s upon prosecutor improper the failure of the defense to reflect for the proof present adduced the state.” to rebut to omitted.) (Citations (4) (264 punctuation 205, 245 Ga. Smith (1980). jury giving certain that the court erred Matthews submits 7. charges. refusing give requested certain and in to instructions (a) robbery charge simple if the not authorized. Even A was money robbery escaping from store before victim succeeded require- register, presence” “immediate the cash was taken from (a) robbery may An armed 16-8-41 was satisfied. ment of OCGA physical presence if of the victim what out of the committed “even responsibility [the victim’s] . . control or . taken was under was victim] [the State, 235 Ga. far distant.” Welch v. if was not too (b) Citing Edge charge. gave improper sequential an asserts the court Matthews voluntary option jury to consider the was not authorized Since Edge implicated. charge given, manslaughter is and no such was underlying felony Edge problem if the is “does not exist Also, the robbery, killing burglary, independent itself, as or even of the such other than the homicide that is directed someone an assault underlying Edge, supra In the at n. 3. victim.” felony robbery independent of the kill- of the armed of Johnson ing of Earls.
(c) during jury agree instruction that the court erred We do fully only per- you one stated, “I’msure that understand when Only per- charges murder here. one are two son was killed. There among only committed, but killed, so one murder was son was will be whether the defendant to you today decisions will have make committing murder, is malice or guilty and whether he’s committing But, armed when Matthews guilty robbery.” objected for mistrial at the conclusion of the charge, moved the court occurred, that a acknowledged slip tongue denied a mis- trial, instructions, called the jury but back curative as follows: , offense alleged
One which is is malice murder. The second offense is I alleged which murder. ... was trying to make the point you although charges there are two indictment, of murder listed in this kill- only there was one I I ing. think said to to the effect that you something while charges murder, there are two one only murder was com- A mitted. misstatement. It is your duty to find whether not, there is murder or whether the defendant guilty not guilty. That is an innocent misstatement on my . . . You part. absolutely are not to consider that this court has made any suggestion guilt at all as to or innocence of this Defendant. ... It is for you determine whether or killing murder, so, not the which took and if place was which . . . An innocent type. made, misstatement which I and I way wanted no for that you be influential concerning your verdict. they understood,
When asked if every juror affirmatively. *7 responded A mere verbal inaccuracy resulting from a slip tongue clearly which does not mislead or jury confuse the is not reversible (2) (a) (482 288) (1997). error. Williams v. SE2d Because the erroneous thoroughly statement was corrected during the find no recharge, possibility jury that the was confused or Therefore, misled. the error must be deemed harmless.
8. The court correctly felony sentenced Matthews for both mur der and robbery. armed When the underlying felony committed one victim and the in upon felony charged murder another count in victim, the same indictment is committed another upon underly the felony murder conviction. Kim does not with the ing felony merge (4) (330 v. brough (1985); Milledge v. 504 Ga. SE2d (2) (470 439) (1996). State, charged Matthews was in separate counts of the indictment for the armed commit robbery felony ted on Johnson and the murder committed on Earls. The court did by entering not err convictions and sentences for both the murder of Earls and the armed of Johnson. robbery Satterfield 3) (1981). State, Ga. And since these offenses conviction, constituted Matthews’ fourth serious the court was. (c). authorized to sentence under OCGA 17-10-7 impose concur, Benham, J,C. except Justices All the Judgment affirmed. specially. who concurs Justice, concurring specially. Chief
Benham, line of the majority opinion the agree I bottom While of a defense admitting in the trial court erred that agree in of record, overruling I cannot concur first offender witness’s Favors has no Favors here a defense wit- the witness was to this case because application Thus, case in Favors. as was the ness, not a witness prosecution years more than 20 undertaking in overrule majority opinion, this decisions, necessary farther than is resolve goes appellate case. I would if application
Even Favors Favors, this Court deciding In that it should be overruled. agree in case to a defendant a criminal show right balancing of the wit- right a State’s witness untrustworthiness revelation of the fact prevent offender statute to ness under first a crime or has been found committing has admitted that the witness that a “lack of trustworthiness a crime. The conclusion was guilty of a for- whether or not guilty, plea guilty, a verdict of is shown entered,” that the of the defendant right has mal conviction been Although of the witness. right must over impeach prevail may have tracked the rationale led to that conclusion reasoning clause, the confrontation concerning Court cases Supreme of U. S. Thus, clause. on the confrontation rely directly conclusion did not distinguish types for Favors to between there was no reason doing today. reason for so Even and there is no valid impeachment I contend that the witness’s lack analysis, under confrontation clause and, thereby, of confrontation object of trustworthiness valid impeachment. therefore, this Court erred decid- agree,
I cannot today Court is correct overrul- majority Favors or that a of this ing that decision. ing — 17, 1997
Decided November 19, 1997. December Reconsideration denied Bennett, Jr., for appellant. Lovett *8 Hildebrand, Malone, E. Attorney, District Richard A. Jennifer General, Baker, Attorney E. Attorney, District Thurbert
Assistant General, Smith, Attorney appellee. Paula K. Senior Assistant