Lead Opinion
David Phillip Smith was convicted of the malice murder of Jeremy Javies as well as theft by receiving stolen property and possession of a firearm during the commission of a felony.
The evidence presented at trial showed that Smith purchased a sawed-off 12-gauge shotgun from an acquaintance who had stolen
Later that night, Smith and Javies went into the woods with the shotguns. Neighbors heard one shot, a pause of one-two minutes, and then a rapid series of additional shots. About 15 minutes later, Lamar Hopkins, an acquaintance of Smith, saw Smith walking on a nearby road carrying both shotguns in a blue book bag. Smith told Hopkins that he had just killed Javies, and Hopkins went with him to a place in the woods where he hid the shotguns. Two additional witnesses also saw Smith walking on the road carrying the book bag within minutes of the shooting. Hopkins further testified that Smith had been angry with Javies on the day before the shooting, and that Smith told him that he shot Javies because he was afraid that Javies was going to tell on him for possessing the shotguns.
Javies’ body and the book bag containing the shotguns were found the following day. Javies had six and possibly seven gunshot wounds: four wounds to the arms and shoulders, a press-contact shot to the neck that had fractured the vertebrae, and one and possibly two press-contact shots to the face. All of the wounds were inflicted by a 12-gauge shotgun. At trial, Smith admitted shooting Javies, but claimed that Javies had first fired at him with the 16-gauge shotgun.
The evidence was sufficient to enable a rational trier of fact to find Smith guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia,
Pretrial Issues
1. The trial court did not err by denying Smith’s plea in bar to prevent the seeking of the death penalty in his case due to alleged gender discrimination by the Clayton County district attorney. Perkins v. State,
2. Smith complains that the State obtained improper access to his juvenile record during the discovery process for two reasons: 1) a detective viewed Smith’s juvenile file in violation of OCGA §§ 15-11-58 and 15-11-59; and 2) a later juvenile court proceeding where the
Voir Dire
3. The trial court did not err by excusing a prospective juror due to her inability to consider a possible death sentence. Wainwright v. Witt,
The Guilt/Innocence Phase
4. Smith argues that he was prevented from introducing evidence that was relevant to his claims of self-defense and voluntary manslaughter. We agree. At the start of the trial, the State filed a motion in limine to prevent Smith from presenting evidence or questioning witnesses regarding two incidents that occurred two days before the shooting. The State claimed that these two incidents were irrelevant and that they amounted to impermissible bad character evidence regarding the victim. OCGA § 24-2-2. The State also claimed that the defense violated Uniform Superior Court Rules 31.1 and 31.6 by failing to provide notice of its intent to introduce evidence of these incidents, because they were past violent acts by the victim. The trial court ruled that the incidents were irrelevant, and therefore inadmissible, because they occurred two days before the shooting. The trial court also ruled that the evidence was inadmissible due to Smith’s failure to comply with Uniform Superior Court Rule 31.6.
The first incident involved a man, Troy Fitzgibbons, who had called the police and reported that he had seen Smith and the victim carrying sawed-off shotguns. The second incident involved an acquaintance of Smith, Steve McLendon, who was approached by Smith and the victim. Smith and Javies asked him if he would like to
“The most acceptable test for relevancy is whether the evidence offered renders the desired inference more probable than it would be without the evidence. [Cits.]” Southern R. Co. v. Lawson,
Further, these two incidents were not subject to the notice provisions of Uniform Superior Court Rule 31.6. Rule 31.6 was created pursuant to Chandler v. State,
5. The victim’s mother testified that Smith and her son had an argument on the day of the shooting on her front porch. Immediately afterwards, the victim came inside and told her, ‘You don’t have to worry about seeing [the defendant] come over here no more because I told him if he didn’t get rid of the guns that you was gonna go to the police.” The defense challenged the admissibility of this statement on hearsay grounds but the trial court ruled that the statement was admissible as an excited utterance, OCGA § 24-3-3, and under the necessity exception. OCGA § 24-3-1 (b). After the victim’s mother testified on direct examination, Smith sought to cross-examine her about hér son’s previous attempts to run away from home and about a Department of Family and Children Services (“DFACS”) declaration that he was a “deprived child.” Smith claims that these questions would show that the victim and his mother did not have a relationship of trust and confidence, thus creating doubt as to the credibility of the victim’s statement to her. The trial court refused to permit this line of questioning, and Smith claims that this ruling was error.
Georgia law permits impeachment of the hearsay declarant. Johnson v. State,
6. Hopkins testified for the State that Smith had called him the day after the shooting and asked for his help in burning and burying the body. On cross-examination, Smith asked Hopkins if he had told the police about Smith’s request, and Hopkins replied that he had. Smith then asked Hopkins to look through his written statement and oral statement transcript and show where he had told the police about this conversation. Hopkins’ statements had not been admitted into evidence. The State objected, and the trial court ruled that Smith could not impeach Hopkins with his statements until they were tendered into evidence. This ruling was error. A prior inconsistent statement does not need to be admitted into evidence before it is used for impeachment purposes. Duckworth v. State,
7. Smith is white; the victim was African-American. Hopkins testified that Smith had boasted about the shooting on the day after its occurrence and used a racial slur during this admission to describe the victim. The prosecutor mentioned this admission and slur in his opening statement and closing argument. When Smith cross-examined Hopkins, Smith tried to ask Hopkins if Hopkins was a racist and whether he carried a lighter with a rebel flag and “racist-type language” on it. After State objection, the trial court ruled that these questions were improper. Later, during Smith’s direct examination, Smith sought to testify that he had dated an African-American girl but the trial court ruled that this line of inquiry was not relevant. Smith claims that he was prevented from overcoming State aspersions that he was racist and from proving that Hopkins had been the one who had uttered the racial comment.
As to the cross-examination of Hopkins, the trial court abused its discretion by preventing Smith from asking Hopkins whether he was a racist. Smith’s questions to Hopkins about his alleged racism were an attempt to show that Hopkins had been the person who had uttered the racial statement, not Smith. Smith has the right to a thorough and sifting cross-examination, OCGA § 24-9-64, and whether Hopkins was a racist was relevant and material to a determination of who had made the racial comment. The trial court did not err, however, by refusing to allow questions about Hopkins’ lighter. See Duckworth, supra at 567 (1) (trial court has discretion to limit the scope of cross-examination). Whether Hopkins had a rebel flag on his lighter would add little support for Smith’s claim that
As to Smith’s direct examination, the trial court erred by preventing Smith from testifying that he had dated an African-American girl. Hopkins alleged that Smith had made an admission that included a racial slur. Smith was entitled to rebut this allegation by showing that he was not the type of person who would make such a statement, i.e., that he was not a racist. Since evidence that Smith had dated an African-American girl would tend to make this desired inference more probable, the evidence was relevant and should have been admitted. OCGA § 24-2-1; Southern R. Co.,
8. Smith complains that the trial court improperly sustained repeated objections by the prosecutor to Smith’s opening statement. We conclude from our examination of the record that the trial court did not abuse its “sound discretion to control the content of the opening statement.” Sims v. State,
9. The trial court did not abuse its discretion by permitting the State to display images of photographs admitted into evidence on a 35-inch television screen. See Ottis v. State,
10. The guilt/innocence phase jury charge was not error. “The words ‘criminal negligence’ are an integral part of the definition of a crime, and were properly included in the charge on OCGA § 16-2-1.” Owen v. State,
Sentencing Phase
11. Smith complains that the State argued improperly in the sentencing phase closing argument. He asserts that the prosecutor
The prosecutor began his sentencing phase closing argument by suggesting that justice demanded the death penalty in this case, and by reminding the jury several times of their “awesome responsibility” in making the sentencing decision. The prosecutor then continued:
But remember that in making your decision you are not alone, there are others who have been involved in this decision and there will be others after you who will also be involved. There was the Legislature who passed this law based on being elected by their officials and there were the Grand Jurors who looked at these charges and there was the prosecution, the State, who brought these charges to you and indeed it will be the court who will charge you on the law and it will be the defense who will be responsible for defending the defendant in this case and there will be those even after you —
The defense objected, citing Caldwell, supra. The trial court asked the prosecutor what he meant by the “others after you.” The prosecutor responded that there “will be the deputies who will be involved with carrying the defendant back and forth from wherever, there will be other people who will assemble the evidence.” Later in the colloquy, the prosecutor stated that he had actually been referring to the Parole Board because parole was a consideration in a life sentence.
In Caldwell, the prosecutor, in remarks characterized by the United States Supreme Court as unambiguous and strong, “sought to minimize the jury’s sense of responsibility for determining the appropriateness of death” by informing them that an appellate court would
In this case, “the inevitable [result] of the prosecutor’s remarks . . . was to encourage the jury to attach diminished consequence to their verdict, and to take less than full responsibility for their awesome task of determining life or death for the prisoner!] before them.” Prevatte, supra at 931 (6). The trial court erred by failing to issue curative instructions, and the prosecutor’s subsequent explanation to the jury was inadequate to cure the error. See Fleming v. State,
12. Smith complains that the trial court erred by sustaining State hearsay objections to the testimony of two mitigation witnesses. Smith had lived in Oregon with his mother until he was five years old, when he came to Georgia to live with his father and stepmother. Smith’s stepmother testified, when asked if she knew anything about his childhood living conditions in Oregon, that she had
However, the hearsay rule is not suspended in the sentencing phase. Davis v. State,
13. Smith complains that the trial court erred by excluding two photographs of himself taken when he was in the fifth grade. Barnes v. State,
Since Smith’s murder conviction is reversed, we need not determine whether the exclusion of Smith’s two fifth grade photographs amounts to reversible error. However, Georgia law is permissive with regard to the scope of admissible mitigation evidence, and relevant
14. Smith claims that the State improperly introduced aggravating evidence that violated his First Amendment rights. Defendant’s DFACS caseworker testified that she had attempted to place Smith in a religious-based group home, and Smith had told the home director that “I’m not a Christian, I’m a Buddhist, and I don’t agree with all of the religious part of this.” She also testified that Smith was ejected from the group home after he told other residents that he was a member of an Asian gang, and that Smith had told her that he would do whatever was necessary to be connected with an Asian gang.
As to the religious statement, the trial court sustained Smith’s objection, ordered the testimony stricken, and instructed the jury that it was not to consider the religious reference in reaching its verdict. Smith did not object to the curative instructions or move for a mistrial after they were given. Therefore, this issue has not been preserved for appellate review. Weems v. State,
15. The trial court did not err by refusing to allow the parties to make opening statements at the beginning of the sentencing phase. While we think it is the better practice to allow the parties to outline for the jury their expected evidence in aggravation or mitigation, there is no statute, rule or caselaw requiring an opening statement in the sentencing phase. In addition, since the parties made opening statements at the beginning of the guilt/innocence phase, the trial court instructed the jury on the purpose of the sentencing phase at the beginning of the sentencing phase, and the sentencing phase only lasted a few hours, Smith was not harmed by the trial court’s decision.
16. The trial court did not err by denying Smith’s motion to introduce evidence in the sentencing phase describing “the process and effects of death by electrocution.” While Georgia allows a wide range of mitigation evidence, the evidence must relate to the character, background or offense of the particular defendant on trial and not to circumstances that may confront many or all capital defendants. Barnes,
17. Smith’s claim that execution by electrocution constitutes cruel and unusual punishment under the United States and Georgia constitutions has been decided adversely to him. DeYoung v. State,
18. There is no merit to Smith’s contention that the Georgia death penalty statutes are unconstitutional due to the district attorney’s discretion, or for any other reason stated by Smith. McMichen, supra at 611 (25), (26). The method by which this Court conducts its review of the proportionality of death sentences is constitutionally sound. Id. at 611 (25).
19. The Unified Appeal Procedure is not unconstitutional. Wellons v. State,
20. “The trial court did not err in failing to charge the jury on a burden of proof with regard to non-statutory aggravating circumstances.” McClain v. State,
Judgment affirmed in part and reversed in part.
Notes
Jeremy Javies was killed on March 22, 1995. Smith was indicted on August 10, 1995, for malice murder, felony murder (4 counts), theft by receiving stolen property, and possession of a firearm during the commission of a felony. The State filed a notice of intent to seek the death penalty on July 14,1995. The trial took place from January 13-24,1997. On January 22, 1997, the jury convicted Smith on all counts, and on January 24, 1997, the jury recommended a death sentence for the malice murder. The trial court sentenced Smith to death for the malice murder, and vacated the felony murder convictions. The trial court also sentenced Smith to ten years for theft by receiving stolen property, concurrent with the death sentence, and five years for possession of a firearm during the commission of a felony, consecutive to the theft sentence. Smith filed a motion for new trial on February 4,1997, and an amended motion for new trial on November 13, 1997. The trial court denied the amended motion for new trial on December 22,1997, and Smith filed his notice of appeal on January 20, 1998. This case was docketed on February 18, 1998, and orally argued on June 8,1998.
There was no proffer about what constituted the alleged “racist-type language.’
The trial court called this second, belated explanation “disingenuous.”
Smith’s stepmother did testify that Smith and his mother had “lived in cars, moved from one apartment to another, with a series of men.”
Dissenting Opinion
dissenting.
In Division 4, the majority holds that it was reversible error to exclude evidence which it deems to be relevant and exculpatory of Smith. In my opinion, Smith did not preserve this issue for review by this Court. Moreover, even if this issue may be raised on appeal, I do not believe that the trial court erred in proscribing the introduction of the evidence. Therefore, I respectfully dissent to the reversal of Smith’s conviction.
This issue arose, as the majority points out, in the context of the State’s motion in limine. At the hearing thereon, the trial court only held that Smith could not introduce evidence of two prior occurrences involving the victim “unless and until they otherwise become relevant,” and further ruled as follows: “If the defense feels at some point that that evidence becomes relevant through impeachment or other legal means then they are hereby instructed to bring it to the atten
However, even assuming that Smith was not required to raise the issue during the trial, I still cannot accept the majority’s premise that evidence of the victim’s possession of one of the shotguns two days before the homicide is relevant to the claim of self-defense. A defendant is entitled to attempt to prove his reasonable belief that force was a necessary response to the incident in question. Insofar as the admissibility of prior incidents involving the victim is concerned, however, the trial court is authorized to limit the evidence to those acts involving the use of a weapon or object to assail the defendant, and to those violent acts against third parties which were within the knowledge of the defendant. Allen v. State,
The exclusion of evidence on grounds of irrelevancy is reversible error only if that ruling constitutes an abuse of the trial court’s discretion. “[T]he admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” O’Neal v. State,
In Divisions 6 and 7, the majority finds that the trial court made additional erroneous evidentiary rulings, but relies upon the holding in Division 4 as obviating the need to address whether those rulings were harmful and thus reversible errors. Because of my disagreement with Division 4, I will address the merits of those evidentiary rulings to determine whether any is an independent ground for reversal of Smith’s convictions.
In Division 6, the majority concludes that the trial court erred in holding that Smith could not impeach Hopkins with his prior inconsistent statement. It appears, however, that Smith was not seeking to prove that the witness had made any prior statements which were inconsistent with his testimony. At trial, Hopkins testified that he had made a certain previous statement to the police. Smith did not attempt to prove that, on any previous occasion, Hopkins denied that he made that statement to the police. Smith wanted only to show that Hopkins’ present testimony about the existence of his previous
In Division 7, the majority holds that a general inquiry into whether Hopkins was a racist was relevant because of a purported dispute over who made a particular racial comment regarding the victim. As noted, however, this Court should not disturb the trial court’s discretion, absent a clear abuse, in limiting the scope of cross-examination on relevancy grounds.
“[T] rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such • cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” [Cit.]
Farley v. State, 225 Ga. App. 687, 692 (
To justify court sanctioned fishing in the murky and dangerous currents of racial bias or prejudice, there must be a foundation laid, sufficient to justify the risk of dredging up passions that may overcome the jury or the public, undermining the administration of justice and the perception of equal justice. Only a potential violation of due process by denial of the right of confrontation in the proper case, supported by the proper evidentiary basis, will justify . . . permitting such cross-examination. General racial bias or prejudice alone would not be sufficient.
Farley v. State, supra at 692. The trial court specifically permitted
Also in Division 7, the majority concludes that the trial court erred by preventing Smith from testifying that he had dated an African-American woman. Again, however, there is nothing to suggest that the trial court abused its discretion in concluding that evidence of Smith’s romantic relationships had no bearing on whether he made a racial slur about an individual whom he was charged with murdering. Such evidence might be admissible at the sentencing phase of the trial, but was, in my opinion, a completely irrelevant topic during the guilt-innocence phase. Moreover, the record shows that defense counsel never made a proffer as to what Smith would answer if the question was posed to him. Indeed, there is other testimony that the female in question was white. Because no proffer was made, there is nothing to review. Harris v. State,
I agree with the majority that there is no error in any of the remaining enumerations regarding Smith’s guilt. Under the majority’s holdings in Divisions 4, 6 and 7, however, it is now permissible for the defendant to make an irrelevant attack on the character of the victim and the State’s witnesses, while introducing during the guilt-innocence phase irrelevant character evidence regarding his romantic inclinations. Because I cannot agree with those holdings, I dissent to the reversal of Smith’s convictions for murder and for possession of a firearm during the commission of a felony. Furthermore, I believe that there is no error in the sentencing phase and, therefore, that both the judgments of conviction and the sentences should be affirmed.
Concurrence Opinion
concurring in part and dissenting in part.
I concur in the reversal of the death sentence and in all divisions of the majority opinion except Divisions 4, 6 and 7. However, I dissent to the reversal of the conviction for the reasons set forth in the dissenting opinion.