SZORCSIK v. THE STATE.
S18A0461
Supreme Court of Georgia
May 21, 2018
303 Ga. 737
MELTON, Presiding Justice.
FINAL COPY
presented at trial was insufficient to support the verdict; that the trial court erred in denying his motion to suppress certain statements that he made to police; that the trial court committed plain error by failing to instruct the jury on the rule of sequestration and voluntary manslaughter; and that his trial attorneys were ineffective for failing to request a jury charge on voluntary manslaughter. For the reasons that follow, we affirm.
1. Viewed in the light most favorable to the jury‘s verdict, the evidence presented at trial revealed that, on March 4, 2007, Szorcsik was at home with his mother, Charlene, and his stepfather, Bentley. After Charlene smoked some illegal drugs, she got into a physical altercation with Bentley. Szorcsik got involved in the fight, and then Charlene jumped up and grabbed Bentley from behind, which caused her and Bentley to fall to the ground. While Charlene and Bentley were on the ground, Szorcsik retrieved several knives and stabbed Bentley multiple times, killing him. The evidence revealed that Szorcsik stabbed Bentley while using a “juking” motion, moving his hand like a sewing machine, and that he stabbed Bentley so many times that the State‘s medical examiner
In the process of stabbing Bentley, Szorcsik cut and injured his own hand, which required him to seek medical treatment. Before seeking such treatment, however, Charlene and Szorcsik wrapped Bentley‘s body in blankets and hid it under the back porch of their home. Charlene and Szorcsik then called Charlene‘s ex-husband, Jimmie Earl Miller, and Charlene met with Miller at a Waffle House restaurant to ask him to help her dispose of Bentley‘s body. Miller agreed to do so, and he and a friend of his named Matt Freeman assisted in digging the grave in the woods where Bentley‘s body was buried. Freeman overheard Charlene “laughing” as she told Miller about how she and Szorcsik had killed Bentley.
Charlene purchased cleaning supplies and tried to clean up her home to cover up the killing, but police smelled the strong odor of cleaning chemicals when they came to the scene a few days after the murder to do a welfare check on Bentley, and they found traces of blood in the home. Soon thereafter, on March 12, 2007, police took Szorcsik into custody and read him his Miranda rights. Charlene was taken into custody as well, and both she and Szorcsik were
When Szorcsik was initially taken into custody on March 12 and read his Miranda rights, he indicated to GBI Agent Jeff Reed that he did not want to speak with investigators. Accordingly, the investigators did not interview Szorcsik at that time. Four days later, Szorcsik reinitiated contact with law enforcement authorities on his own, saying that he wanted to speak with Sheriff Freddie Tompkins. When Sheriff Tompkins arrived at Szorcsik‘s request, he did not ask Szorcsik any questions. Instead, Szorcsik stated without prompting that he wanted to take the sheriff to the location where Bentley‘s body was buried. On the morning of March 17, 2007, Sheriff Tompkins and Agent Reed went with Szorcsik to the area where Szorcsik claimed that Bentley‘s body was buried, and police found the gravesite later that same day. Agent Reed read Szorcsik the Miranda warnings again, and this time Szorcsik agreed to speak with him, claiming that he had stabbed Bentley in self-defense. Szorcsik maintained his self-defense argument at his 2009 jury trial,2 but he was nevertheless found guilty by the jury on all counts against him.
2. Szorcsik contends that the trial court erred in denying his motion to suppress the statements that he made to police on March 16 and 17, 2007, about the whereabouts of Bentley‘s body and the fact that Szorcsik had stabbed and killed Bentley in self-defense. Szorcsik claims that, because these statements were made after he had already invoked his right to counsel on March 12, the trial court erred by allowing these statements to be admitted into evidence at his trial. We disagree.
In ruling on the admissibility of an in-custody statement, the trial court must look to the totality of the circumstances to decide whether the statement was made freely and voluntarily. The trial court‘s factual findings and credibility determinations regarding the admissibility of in-custody statements will be upheld on appeal unless clearly erroneous. Generally, if there is evidence supporting the trial court‘s decision to admit statements, it will be upheld on
appeal.
(Citations and punctuation omitted.) Milinavicius v. State, 290 Ga. 374, 375 (2) (721 SE2d 843) (2012).
While it is true that “an accused, such as [Szorcsik], having expressed his desire to deal with the [law enforcement] only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him,” the accused can be further interviewed by investigators where, as here, “the accused himself initiates further communication, exchanges, or conversations with the [authorities].” Edwards v. Arizona, 451 U. S. 477, 484-485 (II) (101 SCt 1880, 68 LE2d 378) (1981). Indeed, after Szorcsik was read the Miranda warnings on March 12 and he invoked his right to counsel, law enforcement officials asked no further questions of him. It was Szorcsik himself who reinitiated further communication with investigators four days later when he summoned Sheriff Tompkins to tell him without any prompting that he wanted to take the sheriff to the place where Bentley‘s body was buried. Before Szorcsik was asked any additional questions relating to Bentley‘s death, Agent Reed once again read Szorcsik the Miranda warnings, and Szorcsik agreed to speak with investigators. Agent Reed and Sheriff Tompkins both testified at the
3. Szorcsik asserts that the trial court committed plain error by failing, sua sponte, to give a jury charge on the rule of sequestration. See former
In order to show plain error:
First, there must be an error or defect — some sort of “[d]eviation from a legal rule” — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant‘s substantial rights, which in the ordinary case means he must demonstrate that it “affected the outcome of the trial court proceedings.” Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error “‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.‘”
(Citation, punctuation and emphasis omitted.) Kelly, supra, 290 Ga. at 33 (2) (a).
Again, the rule of sequestration pursuant to former
In this regard, a jury charge on the credibility of Sheriff Tompkins’ testimony as it relates to the rule of sequestration was unnecessary here, as such a charge may be requested when the rule has been invoked and violated, rather
[w]hen the rule of sequestration is violated, the violation goes to the credibility rather than the admissibility of the witness’ testimony. Moore v. State, 255 Ga. 519, 521-522 (3) (340 SE2d 888) (1986); Blanchard v. State, 247 Ga. 415, 416-417 (1) (276 SE2d 593) (1981). A party‘s remedy for a violation of the rule is to request the trial court to charge the jury that the violation should be considered in determining the weight and credit to be given the testimony of the witness. Jordan v. State, 247 Ga. 328, 346-347 (10) (276 SE2d 224) (1981).
(Emphasis supplied.) Johnson v. State, 258 Ga. 856, 857-858 (4) (376 SE2d 356) (1989).
We find no error, plain or otherwise, in the trial court‘s failure to give a jury charge on the rule of sequestration.
4. Szorcsik also argues that the trial court committed plain error by failing, again sua sponte, to give a jury charge on voluntary manslaughter. However, we need not reach the merits of this claim, as the record reveals that Szorcsik affirmatively waived this argument for purposes of his appeal. More specifically, when the trial court discussed giving a charge on voluntary manslaughter below, Szorcsik‘s defense team indicated that they “did not want that [charge] given to the jury.” Under such circumstances, Szorcsik‘s claim of plain error from the trial court‘s failure to give a charge on voluntary
5. Finally, Szorcsik contends that his trial attorneys were ineffective for failing to request a jury charge on voluntary manslaughter. Szorcsik is incorrect.
In order to succeed on his claim of ineffective assistance, [Szorcsik] must prove both that his trial counsel‘s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. Id. at 697 (IV); Fuller v. State, 277 Ga. 505 (3) (591 SE2d 782) (2004). In reviewing the trial court‘s decision, “‘[w]e accept the trial court‘s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.’ [Cit.]” Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).
Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012).
At the motion for new trial hearing, trial counsel testified that, based on counsel‘s “self-defense [strategy at trial] and . . . discussion with [Szorcsik], [they] were all in agreement not to request the charge of voluntary manslaughter.” Counsel was free to pursue an all-or-nothing strategy focused on self-defense after consulting with Szorcsik, and the failure to request a jury charge on voluntary manslaughter under such circumstances does not amount
[w]hile other counsel, had they represented appellant, may have exercised different judgment, the fact that the trial counsel chose to try the case in the manner in which it was tried and made certain difficult decisions regarding the defense tactics to be employed with which appellant and his present counsel now disagree, does not require a finding that the representation below was so inadequate as to amount to a denial of effective assistance of counsel. [Cit.]
Solomon v. State, 247 Ga. 27, 29 (277 SE2d 1) (1981). Szorcsik‘s claim of ineffective assistance is without merit.
Judgment affirmed. All the Justices concur.
Murder. Worth Superior Court. Before Judge Cross.
Troy E. Golden, John R. Mobley II, John G. Wolinski, for appellant.
C. Paul Bowden, District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ashleigh D. Headrick, Assistant Attorney General, for appellee.