*1 into considera- conflict, must often take oftentimes facts that are tion cultural traditions, customs, and mores before differences, Placing on the undue restrictions made. can be final determination only by forcing jury process jury pool to use commissioners selection citizenship pre-screen result the exclusion for methods that potential many service. Such candidates for who are of state of affairs citizens justice. system might our of well for not bode majority approach to short cause commissioners will jury pool representative quest and stifle for a more circuit their attempts very prob- jury pools more inclusive. This is our to make supra. sought remedy Supreme Duren, We Court U. S. lem the need to learn duty past feel bound and not from our mistakes majority repeat do. would have us them as the I outlined above dissent. For the reasons Decided October 22, 2002. denied November
Reconsideration Summer, Summer, Reisman, A. Elizabeth B. & Daniel Summer appellant. for Attorney, Lydia Jones, C. Sartain, Lisa A. J. District Jennifer Attorneys, appellee.
Bagwell, for Assistant District MILLER v. THE STATE. S02A0626. Presiding Justice. Sears, felony appeals
Appellant his convictions for Jonathan Miller aggravated battery, aggravated and his result- murder, ing assault and transcript Having the record and the life sentence.1 reviewed jurisdic- properly exercised trial, we conclude that support sufficient to case, over this that the evidence was tion jury’s in rul- verdicts, the trial court did not abuse its discretion jurors, ing eligibility prospective there was no 2, 14, Appellant was indicted on December The crimes occurred on November 1998. (with 7,1999. 1998, April 26-May Appellant was found and tried on felonies), assault, battery underlying aggravated aggravated assault and as the aggravated battery. imprisonment He was sentenced to life merged by operation aggravated battery of law. A convictions were assault and 4, 4, 1999, The trial which was denied on October 2000. new trial motion was filed on June timely reporter 2001. filed a was certified the court December January appeal appeal docketed with this Court on on October notice 10, 2002, argued orally May and was prosecutorial misconduct during closing arguments. found Having no error associated with conviction, trial and we affirm.
The evidence authorized the conclude that in November Miller, appellant Jonathan then years old, rode home on the school bus while seated behind 13-year-old Joshua Belluardo. Appel- lant had previously taunted and bullied Joshua. On this particular *2 day, appellant sat behind Joshua and threw items at him. Joshua told appellant stop, to and appellant responded by taunting Joshua, him calling names such as “bitch” and “faggot,” and challenging Joshua to a When fight. the bus stopped, appellant asked rhetorically whether he should hit Joshua on the back of the head or in the face. Joshua then quickly exited the school bus and appellant followed. Approaching behind, from appellant hit him with his fist on the back of the head. Joshua collapsed to the ground. Appellant again struck Joshua and once, kicked him then fled the scene.
After being struck, Joshua moaned and had extreme difficulty A breathing. bystander attempted to roll him over, and he stopped breathing altogether. When medical personnel arrived and adminis- CPR, tered Joshua resumed breathing and a regained regular pulse. He was taken to the hospital, he never regained consciousness. Doctors later determined that when appellant struck Joshua on the back head, of his he created a tear in Joshua’s artery, vertebral caus- ing blood to flood into Joshua’s brain and A spinal column. neurosur- geon later opined that when Joshua arrived at the his brain hospital, had ceased normal functioning. days later, Two Joshua was removed from life support and pronounced dead. originally was in juvenile court with
aggravated assault and aggravated battery. died, After Joshua lant was charged with felony murder based upon those same two crimes. The juvenile complaint dismissed, was then and the superior jurisdiction took of the case for bond Five purposes. weeks later, indicted murder, court for felony aggravated assault and aggravated battery. Appellant was tried court, the superior convicted of all crimes, three and sentenced to life in prison.
1. The evidence trial, introduced at viewed most verdict, favorable to the jury’s was sufficient to enable rational triers of fact to find appellant guilty beyond a reasonable of felony doubt assault, aggravated and aggravated battery.2 to
Contrary appellant’s argument, causing brain loss does fit the statutory definition of aggravated battery, which is defined as “mali- ciously caus [ing] bodily harm to another by depriving him or her
a Virginia, Jackson v. 443 U. S. 307 SC 61 LE2d of his or her rendering a member body, by [or] her of his or member alleged in this case The indictment useless.”3 body useless rendering Joshua’s brain battery by aggravated committed shows that When the evidence Joshua of his brain. by depriving brain, their result- injury a severe has suffered victim battered said to have been they are functioning, normal brain in the loss of ing battery.4 brain,” aggravated an suffering thus “deprived instantaneously that one who “dies is correct While appellant battery,”5 an subject aggravated cannot the first blow be have concluded which the at trial from there was evidence examining pathologist instantaneously. die that Joshua did not the brain and blood flow into average, high-volume that on testified Joshua, not cause a ces- column, was suffered does such as spinal Moreover, 60 seconds. wit- for at least functioning sation in brain being for air after gasped that Joshua moaned nesses testified technician testified medical struck, attending emergency while resuscitated, pulse he maintained that after Joshua the evidence autho- being transported hospital. was not instantaneous. to conclude that Joshua’s death rized the find also authorized the The evidence assault when A commits person assault. *3 (1) injury a or he to commit violent things) attempts other (among (2) thereof, assaults apprehension another reasonable places device, or instrument deadly weapon any object, “a another with actually to or which, person, likely is offensively against when used testified that bodily injury.”6 in serious Witnesses does result harm, physical approached lant threatened Joshua with head, causing inflicted a fierce blow to the back of his behind then struck Joshua again collapse ground. Joshua to from which the Hence, him once. there was evidence and kicked injury to inflict violent appellant attempted could conclude Joshua, the first of these elements. establishing thus assault, the indictment aggravated other element of As for the — i.e., deadly weapon attacked Joshua with a hands and feet are not considered to be Although his hands and feet. so se, jury may depending find them to be deadly weapons per use, inflicted, surrounding and other circum- injuries (a). § OCGA 16-5-24 (532 (2000); State, 383, App. 384-385 SE2d See Scott v. 243 Ga. Griffin App. 570) (1981); Hance v. see Patrick v. Ga. 339) (1980) (in battery, bodily aggravated harm to to constitute order death). if it that the was instructed that concluded victim must occur before We note battery. instantaneous, no there could be Joshua’s death (1995). (a) Hardrick, Smith v. OCGA 16-5-21 § hit hard from that Joshua was so Evidence at trial showed stances.7 he fell. While there was flew in the air as up that his arms behind such as was artery hemorrhage, indicate that a vertebral evidence to as head Joshua, linked to subtle factors such by suffered can be testified that movement, examining pathologist placement trauma that by fatal was caused external blunt-force injury Joshua’s minimum, to a man’s use of moderate was, equivalent grown at a evidence, In we conclude the was authorized to force. of this assault. find appellant (b) (2) (A), the court is superior to OCGA 15-11-28 Pursuant § aged over the trial of jurisdiction young people
vested with exclusive committed, crimes, among who are to have other alleged 13 to 17 death, argues the time of murder. who was 15 at Joshua’s Appellant, “murder,” accused of rather than felony that because he was mandate, and hence he jurisdictional not fall within this his trial did is in the court. This should not have been tried . . . “Murder is offense which can be committed unavailing. [an] a fel- or while in the commission of aforethought either with malice Code, felony the offenses of our Criminal ony.”8Throughout In as “murder.”9 together malice murder are treated frequently consistently apply- “murder” is construed as statutes, these the term statutes, in these other and malice murder. As ing to both jurisdictional to “murder” in the legislature’s reference believe (A) (b) (2) intended to obviously is mandate of OCGA 15-11-28 § and malice murder. encompass both commenced, and one dire twelve students days
3. Six
before voir
High
Columbine
School
killed
two fellow students at
teacher were
amount of national
Littleton, Colorado,
a substantial
generating
dire, appellant
before voir
coverage. Immediately
and local media
continuance,
of the media’s por-
that because
arguing
moved for
incident,
with
to violence
regard
trayal
especially
Columbine
likeli-
schools,
there was a reasonable
among young people
hearing
a fair trial.10 A
would not receive
hood that
480) (1997);
55;
Hardrick,
266 Ga. at
Dixon v.
(503
Smith
*4
628) (1998). Contrary
argu
appellant’s
App.
Wheeler
Hardrick,
require
ment,
supra,
the State to show that
in Smith v.
does not
our decision
by
feet,
used,
injuries
likely
to result in the
sustained
knew his hands and
were
Joshua.
612) (2001).
Jones,
State v.
(a) (a
limitation);
prosecution
no statute of
OCGA
“murder”
has
§
See OCGA 17-3-1
(Code
provides
defining
that one convicted
malice and
§ 16-5-1
section
(a
may
death);
judge
by
may
punished
imprisonment
OCGA 17-10-9.1
§
life
“murder”
be
officials);
jail
prior
OCGA 17-6-1
§
to his surrender
convicted of “minder”
not release one
(a) (“murder”
judge).
only
court
is bailable
before
(5th
Maxwell,
1972),
Nix,
citing Sheppard v.
Cir.
States v.
465 F2d
See United
1507, 16 LE2d
held on the after which the trial court denied the appeal, appellant On continuance. ous.11 claims that denial was errone- only The denial aof motion to continue will be reversed when by sup- there has been a clear abuse of discretion the trial court.12In port appellant presented expert testimony motion, of his of a opinion, though selection consultant who testified that in his even the Columbine incident and the death of Joshua Belluardo were coverage unrelated, the media’s of the two incidents had linked them together atmosphere prevent so as to create an emotional that would receiving pressed opinion, from a fair trial. When on this expert pos- however, the conceded that whether a fair trial would be depended upon processed sible how individual obtained and concerning killings. information Moreover, Columbine questioned opinion, expert when about the basis his conceded significant coverage High that while there was of the Columbine killings only media, School in the local he was aware of one local newspaper article that linked the Columbine incident with particular simply trial, lant’s and that article addressed the fact that by alleging defense counsel had moved for a continuance that a fair trial could not be obtained due to the events at Columbine.13Further- expert performed more, the admitted that he had no assessment of community killings attitudes in the wake of the Columbine to deter- any pervasive emotionally- mine if there was indication of a appellant’s environment that would interfere with fair trial rights. having transcripted
In factors, of these reviewed the hearing appellant’s motion, we conclude his that media coverage obtaining prevent of the Columbine incident would him primarily upon speculation,
a fair trial was and that showing necessity he failed to make a for a continuance. Accordingly, we find no abuse of discretion in the trial court’s denial of the motion for a continuance. also enumerates as error the trial court’s denial of pretrial requesting change
his motion in venue due to an inher- ently prejudicial atmosphere pretrial publicity created adverse part prospective jurors. and also due to actual bias on the The trial properly ruling appellant’s reserved motion until after the support appellant’s evidence of record attorney does not claim that the district independently rather than the trial court calendared and called case for trial. See Cuzzort v. Young State, § See OCGA 17-8-22. Journal-Constitution, 25, 1999, April Littleton, See Atlanta (“Citing Lawyers F-l Case”). Delay Seek in Teen’s
735
a
dire,
determining
change
when
whether
of voir
because
completion
the effect of pretrial publicity
a critical factor is
necessary,
of venue is
objectivity.14
to maintain their
ability
prospective jurors’
majority
potential
dire shows that
of
of voir
pretrial publicity concerning
to at least some
exposed
had been
jurors
ages
the crimes
Given the nature of
Joshua’s death.
involved,
widespread
it
not
that there was
surprising
is
parties
trial.
appellant’s
subsequent
death and
coverage
media
of Joshua’s
however,
not militate in favor of a
alone,
this factor does
Standing
to information about a criminal
venue,
exposure
as
change
pretrial
inflammatory
as
thing
pretrial exposure
matter
is not the same
a
trial.15
right
that
threatens an accused’s
to fair
material
prejudicial
who
jurors
reported
takes issue with several prospective
However,
to death.
even
had heard that
“beat” Joshua
they
jurors
these several
were mis-
if we
accept appellant’s
informed,16
always
or even misinformed is not
“being informed
in
of wide-
inflamed or
Even
cases
thing
being
prejudiced.”17
same
ren-
publicity
situations where such
has
publicity,
spread pretrial
are
rare.18 We
inherently prejudicial
extremely
a
setting
dered
trial
concerning
pretrial
of record
the actual
have reviewed the evidence
unduly
matter,
inherently prejudicial,
in
and it was not
this
publicity
or reflective of a hostile
extensive,
inflammatory,
prejudicially
venue.19 If
we are
change
anything,
so as to
atmosphere
require
jurors
during
who
agree
prospective
reported
inclined to
with those
to make
they had seen tended
pretrial publicity
voir dire that
and Joshua.
feel
for both
empathy
them
in venue was man-
change
claim that
Concerning appellant’s
jurors,
the record
part
prospective
due to actual bias on the
dated
Of
jurors
excused 18
for cause.
prospective
the trial court
shows
had
they
were excused for cause because
those
seven
eighteen jurors,
or innocence due to
guilt
pre-
as to
strong
formed
opinions
due to a combina-
and three were excused for cause
trial publicity,20
publicity.21
opinions
upon pretrial
factors that
included
tion of
14
677) (2000).
State, 272 Ga.
706
Gissendaner v.
Lemley
258 Ga.
gross
not, however,
accept appellant’s
that this is a
distortion of
contention
We do
put
evidence
the State.
facts
into
say
potential juror went so far as to
Lemley,
While we note that one
The other other excused were for reasons pretrial opinions exposure publicity.22 than drawn from their sixty-six prospective participated in of the who 15.2%) jurors (approximately dire, voir ten were excused whole or part exposure pretrial publicity. due to their We conclude that in widely publicized one, excusáis, this case such as this number of given by particularly in detailed attention “exacting applied excusing voir dire and ... cer- to tain standards jurors,”23 inherently preju- not an does indicate the existence of *6 atmosphere change or would dicial biased that mandate venue.24 denying the trial court did not abuse its discretion in changed. request that venue be argues by denying the trial court erred his motions eight jurors pro- to strike The decision whether to cause. strike a juror spective for cause lies within the trial will court’s discretion and juror’s opinion not be unless it is that the disturbed shown “is so fixed [he opinion she] and definite that and decide the case based be the will unable to set aside
upon evidence” the trial court’s juror’s ability prospective instructions.25 Neither as to his to doubts impartial “try” any nor his that he be preconceived statement will to set aside juror
notions mandate as a matter of law that the
be
upon
principles,
excused for cause.26 Based
explained
these
for the reasons
below,
conclude that the trial
did
its
not abuse
refusing
followingjurors.
discretion
to strike the
Appellant urges
Prospective
Juror Arnell
been
should have
opinion
appellant’s culpabil-
excused because he had formed an
as to
ity
exposure
concerning
based
his extensive
to media accounts
transcript shows,
Joshua’s
however,
death.
that Arnell
he
stated
open-minded,
carefully
would strive to remain
would
listen to the
presumption
evidence, and understood the
also
innocence. He
deciding
case,
stated that when
he
his
would do
“utmost
to
best”
pretrial publicity
set aside all of the
heard,
he had seen and
well
as
any
opinions may
formed,
as
fixed
he
have
and decide the matter
solely
on the evidence.
Prospective
exposed
Juror Irons testified that he had been
to
publicity
opinion
appellant
about the case and
was
was
22
Brown,
Barnes, Rawls,
Zaski,
Adan,
Haney,
Pogue,
Bagwell.
These were Jurors
23
State,
Gissendaner v.
Prospective had led that media Jones testified Juror appellant death, and that he victim to had beaten the to believe was more however, prosecution. stated, Jones also with the inclined to side pretrial ver- and base his his biases he could set aside solely he understood also affirmed that evidence. He dict guilt presumption need to establish innocence, well as the beyond doubt. a reasonable reports,
Prospective she to media stated that due Juror Austin responsible death. for Joshua’s inclined believe very though, actual facts of knew few stated, that she also She always and, media, because heard trust what she case, did not opinions as to facts, had formed no all of the had not heard she Finally, unequivocally guilt that she said she or innocence. lant’s deciding put when had heard little information she aside what this matter.
Prospective heard about had read and Shedd testified she Juror sorry happened dead,” is . . . and a child it case, “felt because [the victim].” up declined, how- She had “beat and believed victim. She had killed the ever, to state that she believed *7 opinion a fixed about did not have stated that she also any “supposed” guilt set aside she could innocence, and that she or solely might leanings on decide the case have and or inclinations she the court’s instruction. evidence and the though Prospective he had not that even D. Jones stated Juror briefly only newspaper anything case and had about the in the
read appellant opinion report, was a that he was of the seen a television clearly, though, killing.” he bully that Jones also stated “did the and judge opinions preconceived the case based set aside his could solely the evidence. “in
Prospective had overheard that she Hedden testified Juror with a stick or hit the victim that had conversation” idle opinion the case and could an about bat, had not formed baseball solely “definitely” and the trial on the evidence her decision base instructions. court’s everything had Prospective if she McNabb testified Juror appellant had to believe accurate, she tended trial was
heard before charged. however, could not recall McNabb, the crimes committed reports “her any specific would do best” case, stated she media firmly juror, would be impartial her decision stated that an to be based solely instructions. the trial court’s evidence and clearly
The of voir dire establishes that none of these held an or prospective jurors opinion regarding appellant’s guilt would] fixed and definite that be unable [they innocence was “so to set and decide the based the opinion upon aside case evidence” and the trial instructions.27 based upon prin- court’s above, the court not ciples discussed trial did abuse its discretion motions to denying appellant’s strike these for cause. it charge 6. contends the trial court’s Appellant him or felony convict murder based assault upon may led to a than upon aggravated battery have less unani- verdict, jurors may mous as some have voted to based upon convict underlying jurors may one while other have felony voted convict relying form, the other The underlying felony.28 verdict how- ever, shows that was found of both guilty aggravated bat- hence, tery assault; are independent there two felony sustain underlying felony convictions that murder convic- tion. Accordingly, appellant’s felony murder conviction is not defi- cient being predicated felonies upon multiple specifica- without tion.29 claims a mistrial should have been declared due
several of the prosecutor’s statements made during closing argu- ments. Over appellant’s objection, prosecutor following stated the during closing arguments: stipulates [appellant] intentionally defense struck 219; v. Kirkland 271 Ga. at Garland Ga. at 496. 28Appellant felony upon aggravated aggra was indicted for murder based assault and battery. charged vated The fact that the it could fel convict ony upon aggravated aggravated battery murder based assault does not an evidence disparity allegations unconstitutional between the and the evidence adduced. See DePalma (1999) Compare Thompson (appellant 108-109 single felony underlying with a count of murder three based on felonies general felony murder; returned verdict this Court reversed conviction underlying felony underlying for one unable to determine which of the alternative reversal). might felony conviction, requiring felonies have served as basis for the murder appellant’s request Georgia’s “antiquated” We decline that we discard rule murder showing express language because it allows conviction without a of an intention kill. The statute, Georgia’s (c), regardless 16-5-1 OCGA allows conviction § of malice *8 long or intent to commit so it is shown as the defendant intended to commit the (356 felony. State, underlying Moreover, v. Holliman SE2d to appellant Georgia’s “antiquated” felony the extent that claims murder rule renders his con unconstitutional, timely viction State, raise he failed to the constitutional at trial. v. issue Rowe (464 136, 137 State, SE2d Williams v. Ga. 854) (1945). Furthermore, specifically not the court did rule on this constitutional chal lenge, (1955), appellant Wilson Ga. failed to articu grounds challenge late the for his before both the trial court and this Wallin Court. 687) (1981). Hence, appeal. 248 Ga. this issue is deemed waived died as in the back of the head . . . and Joshua
Joshua artery hemorrhage. of the a result of vertebral Members attorney jury, you asking you con- heard of a defense to have vict their client of a crime? hitting stipulate to and to the cause
Insofar as did question, argument, death, stated as a rhetorical was of Joshua’s permissible this as reasonable inferences drawn the evidence.30 “[The prosecutor argued also that: defense wants The fifteen-year-olds think] you to hurt to couldn’t mean each every day things [But] . children horrible other. to prejudicial . . children.” know that do inflammatory Appellant other was an contends this shootings High School, reference to the at Columbine improper attempt inject thus an We happens to considerations into deliberations. something disagree. prosecutor’s referred statement to “every day,” (fortunately) as incidents such what extremely High Furthermore, occurred at Columbine School are rare. having transcription arguments, we believe with reviewed prosecutor responding appellant’s argu- statement, was this ment responsibility to that children should not be held to same standard of for their actions adults. opening statements,
In told the that evidence anything he had thrown at Joshua on the school bus would show not brought during day killing. forth of the No such evidence was closing arguments, prosecutor that the defense “had trial. In said every every person [school] in the access child on that bus to neighborhood, they present you and if had been to a witness that able supported theory they case, would have.” On objection, prosecutor this line the trial court instructed the to cease argument. single improperly of shifted the burden We do not believe this statement by suggesting appellant duty proof had a to improperly present did the statement comment witnesses. Nor right testily. appellant’s Fifth not to The statement was Amendment closing urge prosecution may, arguments, permissible, as the pro- deductions from a defendant’s failure to draw reasonable purportedly witnesses.31 duce favorable prosecu- portions several other takes issue with argument. closing trial, however, either failed to
tor’s At object grounds object raised on comments, failed to to these appeal, request the declaration curative instructions and or failed prosecutor objection his of a told after sustained mistrial argument. particular It follows that these line cease a 223, 228 Simmons v. Sinkfield
remaining appeal.32 enumerations are waived on
Judgment All the Justices concur. affirmed.
Benham, Justice, concurring. I I majority While concur cannot but believe opinion, help as we har- treat more and more children as adults and impose punishment, sher and harsher will soon when we look day come regrettable back on these cases as in our criminal representing a era system. As we our justice developing juvenile justice system, were sought differently recog- treat children from adults because we nized they had not We developed problem-solving skills adults. lump category now certain children the same as adults and mete them, out harsh punishment ignoring the differences between childhood and adulthood. 28,
Decided October 2002. Reconsideration denied November Harvey, Bruce S. D. Larry Wolfe, Michael B. for Syrop, appellant. Moss, Garry Kittrell, T. District Attorney, Rosemary Assistant Baker, General, Attorney, District E. Attorney Wylencia Thurhert H. Monroe, General, Assistant Attorney appellee. for
S02A1053. MARSHALL THE STATE. 761)
Sears, Presiding Justice. Marshall Quincey was convicted murder crimes,* related in a resulting life sentence. He appeals, alleging numerous record, errors. reviewed Having we find that the trial court abused its discretion by testimony relevant excluding concerning a witness’s incarceration at time of trial. Because the testimony excluded evidence, was cumulative of other admitted how- 725) (1991); Todd Perry (1993). Woodham v. 30, 1999, September August 2, The crimes occurred on was indicted on 5-8, 2001, February Trial 2000. was held was convicted of illegal possession. Appellant prison assault and firearm was sentenced to life in (with underlying aggravated merging by for operation assault conviction law) years illegal possession. Appel also sentenced to five consecutive firearm 23, 2001, February 16, 2001, lant’s new trial motion was filed on amended on November February on timely denied 2002. The trial was certified on March 2001. A February 27, 2002, appeal appeal 29, 2002, notice filed on docketed March May 20, and submitted for decision without oral