Lead Opinion
Appellant Phillip Earl Patterson was convicted in 1987 of the malice murder and armed robbery of Bruce Keeter, an assistant manager of a fast-food restaurant in Columbus, Georgia, and the theft by taking of the victim’s automobile.
1. The State presented evidence that the victim died as a result of a bullet that struck him behind the right ear, traversed his brain, and lodged in his left temple. He was killed between 1:00 a.m. and 5:00 a.m. on September 14, 1987, and $373 and a zipped bank bag were missing from the restaurant. Several miles away from the restaurant, the victim’s car was found with a broken passenger window and bloodstains. Timothy Morgan and Ronald Kinsman, former roommates and appellant’s co-indictees, testified for the State. Morgan, who was awaiting trial and had been assured the death penalty would not be sought against him if he tеstified against appellant, testified that appellant owed Kinsman money and Kinsman demanded payment the week before the victim was killed. Shortly after the demand for payment, the trio broke into a home where appellant found a pistol. On the night of the murder, appellant arrived with the gun at the apartment shared by the co-indictees and the trio left together after 1:00 a.m. Apрellant and Kinsman entered the fast-food restaurant and returned five minutes later. Kinsman had the keys to the victim’s car and drove it away, while appellant and Morgan followed. They abandoned the victim’s car and drove across a bridge where appellant, who had placed the pistol into the
Kinsman, who had been convicted of the murder of the victim and had received the death penalty (see Kinsman v. State,
A detective who questioned appellant shortly after his arrest testified appellant initially denied any involvement in the death of the victim but concluded the interview by stating that he had done it and his involvement could not be proved because no оne had seen him commit the crime. A county jail inmate assigned to a cell adjacent to that of appellant testified appellant told him he had shot the victim.
The evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of malice murder, armed robbery and theft by taking. Jackson v. Virginia,
2. Citing former OCGA § 17-7-210 (e) and contending that the State did not prоvide a timely copy of appellant’s custodial, inculpa-tory statement made to the inmate of the adjacent cell, appellant complains the trial court erred when it allowed the inmate in the cell next to appellant to testify about the contents of the inculpatory statement.
Former OCGA § 17-7-210, repealed by Georgia Laws 1994, p. 1895, § 1, effective January 1, 1995, entitled а defendant, upon request, to receive a copy of any statement made by him while in police custody ten days prior to trial. Despite a timely request for such statements, appellant did not receive until three days before
The trial court’s decision that OCGA § 17-7-210 (e) applied was not erroneous. Broomall v. State,
3. Appellant contends the trial court erred when it refused to permit appellant to play for the jury an audio recording of a post-arrest conversation between appellant and co-indictee Morgan. Defense counsel sоught to admit the tape recording during his cross-examination of a police detective and again during appellant’s testimony. In the recorded conversation, appellant denied having played a role in the murder of the victim. At the hearing on appellant’s motion for new trial, the trial court ruled that appellant should have been allowed to play the audiotape in its entirety since co-indictee Morgan had testified to a portion of the conversation. See OCGA § 24-3-38. The trial court found the error to have been harmless since appellant’s denied of involvement during the taped conversation was brought out on direct and cross-examination of appellant and co-indictee Morgan.
Assuming it was error to refuse to allow the recording tо be played, the error does not require reversal of appellant’s convictions since the person with whom appellant was having the conversation testified that appellant denied being involved in the shooting, and appellant testified and denied any involvement in the shooting. Appellant’s recorded denial of involvement would have been cumulative of this evidence, making it highly probable that the exclusion of the tape recording did not affect the verdict. Kennedy v. State,
4. Appellant next takes issue with the trial court’s denial of his motions for mistrial made during the testimony of co-indictee Kinsman on the ground that Kinsman placed appellant’s character in issue when he testified about prior bad acts purportedly commit
The trial court instructed the jury to disregard the information contained in the nonresponsive answer. That action, coupled with the precept that “[a] nonresponsive answer that impacts negatively оn a defendant’s character does not improperly place the defendant’s character in issue” (Hansley v. State,
5. Appellant maintains he was denied his constitutional right to effective assistance of counsel because trial counsel failed to object to portions of the State’s closing argument that appellant believes were improper. Appellant takes issue with the lack of objection to comments made by the prosecuting attorney which purportedly referred to “future dangerousness” and comments which purportedly referred to appellant’s invocations of his right to counsel and right to remain silent.
To prevail on a claim of ineffective assistance of trial counsel, appellant must show counsel’s performance was deficient and that the deficient performance prejudiced him to the pоint that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. A strong presumption exists that counsel’s conduct falls within the broad range of professional conduct [cit., and t]he combined effects of counsel’s error are considered in determining the prejudice prong. . . .
Phillips v. State,
(a) During the State’s closing argument, the assistant district attorney stated that defense counsel was “asking [the jury] to turn him loose, to let him walk out this courtroom, to let him pack up his
Even if we were to assume that the argument impermissibly raised during the guilt-innocence phase the specter of the defendant’s future dangerousness and we were to assume trial counsel’s failure to object constitutes deficient performance, in light of the evidence that appellant was the armed gunman who confronted and shot the victim and admitted his actions to a co-indictee, a jailmate, and investigating detectives, the assumed deficient performance created little, if any, actual prejudice to be considered in our assessment in Division 5 (c), infra, of the collective prejudice stemming from counsel’s actual or assumed errors. See Schofield v. Holsey,
(b) During his closing argument, the assistant district attorney referred to appellant’s admission to a detective that he had committed the crimes, appellant’s immediate denial of involvement, and appellant’s desire to talk with an attorney. The assistant district attorney then stated:
And [defense counsel] says, you know, he makes that as if he’s some great innocent man because he wants a lawyer. Well if he hadn’t done anything, what did he want a lawyer for? I mean, a lawyer, I submit to you, will tell you not to tell the рolice anything. If he didn’t want to talk, if he hadn’t done anything, why does he not want to tell something, you know, because the only thing that can hurt him is admitting to the crime. But he wanted a lawyer, this great innocent man over here wanted a lawyer. And he wouldn’t sign the form. He wouldn’t even sign the form that he’d been advised of his rights. . . . He refused to sign the form. Why wouldn’t he at least sign the form that he’d been advised of his rights? I mean, how can that hurt him? But he wasn’t cooperating. He wasn’t doing anything. Guilty people do that, I submit to you.
Trial counsel testified at the hearing on the motion for new trial
The dissent believes the above-quoted portion of the assistant district attorney’s closing argument is an improper comment on the defendant’s right to remain silent and finds trial counsel’s failure to object to it to be prejudicial as a matter of law, citing Reynolds v. State,
(c) After considering the combined effect of the assumed instances of deficient performance, we conclude, as did the trial court, that appellant did not establish there is a reasonable probability that, but for counsel’s errors, the outcome of his trial would have been different. Schofield v. Cook,
Judgment affirmed.
Notes
Mr. Keeter was found dead in the restaurant on September 14, 1986. The Muscogee County grand jury returned a true bill of indictment on December 30, 1986, charging appellant and two others with malice murder, armed robbery, and theft by taking, and appellant and one other with possession of a firearm by a convicted felon. Appellant was arrested in May 1987 and his trial on all charges except the firearm possession took place from August 10-15, 1987. The Statе sought the death penalty, but the jury, after returning its verdicts finding appellant guilty of all charges on August 15, recommended a sentence of life imprisonment at the conclusion of the punishment phase of the proceedings, also on August 15. A pro se motion for out-of-time appeal was filed April 5, 1988. On November 1, 2001, appellant’s petition for habeas corpus relief was granted and apрellant was afforded the opportunity to pursue an out-of-time appeal. A motion for new trial, filed within 30 days of the grant of the out-of-time appeal, was amended May 24, 2007, and the amended motion was heard on December 7, 2007. The order denying the amended motion was filed August 15, 2008, and appellant filed a timely notice of appeal on August 20. The appeal was docketed in this Court on September 3, 2008, and was submitted for decision on the briefs.
Dissenting Opinion
dissenting.
I must respectfully dissent to Division 5 (c) of the majority opinion because trial counsel was deficient in failing to object during closing argument to the prosecution’s repeated references to Patterson’s invocation of his right to counsel and right to silence, see
The fact that a defendant exercised the right to remain silent may not be used against the defendant at trial. [Cit.] However, if the testimony concerning remaining silent is made “during a narrative on the part of the authorities of a course of events” and “apparently was not intended to, nor did it have the effect of, being probative оn the guilt or innocence of the defendant,” it is not prejudicial. [Cit.]
Taylor v. State,
The majority, however, found no reasonable probability that Patterson was prejudiced by counsel’s deficient performance. As we have recently reiterated, the State is not permitted in criminal cases to comment upon a defendant’s silence. “[I]n the situation of a criminal defendant, this failure to speak or act will most often be judged as evidence of the admission of criminal responsibility. Thus, the element of prejudice is indisputable.” (Emphasis supplied.) Reynolds v. State,
I am authorized to state that Chief Justice Sears joins this dissent.