Hargett v. State
Hargett v. State
Opinion of the Court
Benjamin Hargett, his brother Angelo Armstrong and their cousin Michael Cox were convicted of murder in the shooting death of Tavares Redwine, the aggravated assaults of Adrian “A.J.” Wood and Artis McGinty, and burglary arising out of a home invasion in Coweta County. They appeal from the denial of their motions for new trial.
1. The evidence adduced at trial authorized the jury to find that, in the early hours of May 8, 2006, appellants and at least one other unidentified man forced entrance into a house rented by Redwine and McGinty. Appellants Hargett and Armstrong, with their faces uncovered and armed with handguns and an assault rifle, led the group; appellant Cox, wearing a bandana that covered half of his face, entered later and demanded money and drugs. Wood, who was a guest sleeping on the living room couch, was shot twice as he tried to run away. He survived by pretending to be dead, although his wounds left him permanently unable to use his left arm, and at trial identified appellants as his assailants, testifying that he had known them for years prior to the crimes in issue. McGinty was hit multiple times in the legs and hip by the assault rifle as he left his bedroom and stepped into the lit hallway; appellant Hargett then stood
The evidence adduced amply authorized a rational trier of fact to find appellants guilty beyond a reasonable doubt of the charged crimes. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. In a motion not joined by counsel for the other appellants, counsel for appellant Cox moved to strike potential juror Burgess for cause because the juror’s father had been a police officer and assistant district attorney in California, she indicated she would believe a police officer over other witnesses at trial and she stated at one point that she had formed an impression about the guilt of appellants. The transcript of voir dire also showed that the juror was rehabilitated by questions posed by the State in which Burgess stated, inter alia, that she would not come in favoring the prosecution and that she both could and would judge the case based on the facts as established by the evidence and the law as given by the trial court. Because Burgess never stated a fixed and definite opinion of appellants’ guilt, we conclude that the trial court did not abuse its discretion in failing to strike Burgess for cause. See Lampley v. State, 284 Ga. 37 (3) (663 SE2d 184) (2008).
3. It is well established that the failure to object in the trial court constitutes a waiver of a party’s right to raise a matter on appeal. See, e.g., Rosser v. State, 284 Ga. 335 (3) (667 SE2d 62) (2008). Appellants have enumerated seven alleged errors on appeal that the record establishes are waived for failure to make a proper objection in the trial court. However, appellants have also raised those same
(a) For the reason set forth in Division 2, supra, appellants Hargett and Armstrong cannot establish an ineffectiveness claim based on their counsel’s failure to join in the motion to strike potential juror Burgess for cause.
(b) Appellants contend trial counsel should have objected on the record to the trial court’s failure to strike potential juror Green for cause
For a juror to be excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. [Garland v. State, 263 Ga. 495, 496 (1) (435 SE2d 431) (1993)]; McClain v. State, 267 Ga. 378, 380 (1) (a) (477 SE2d 814) (1996). A prospective juror’s doubt as to his or her own impartiality does not demand as a matter of law that he or she be excused for cause. Waldrip v. State, 267 Ga. 739, 745 (8) (c) (482 SE2d 299) (1997). ... A conclusion on an issue of juror bias is based on findings of demeanor and credibility which are peculiarly in the trial court’s province, and those*85 findings are to be given deference. Kirkland v. State, 271 Ga. 217, 219 (2) (518 SE2d 687) (1999).
Corza v. State, 273 Ga. 164, 166-167 (3) (539 SE2d 149) (2000). Because our review of the voir dire record does not reveal that Green had formed a “fixed and definite opinion” as to appellants’ guilt, appellants cannot show how they were prejudiced by trial counsel’s failure to move to strike Green for cause.
(c) After the rule of sequestration was properly invoked, the State failed to request the court’s permission to allow Detective Yarborough, the lead investigator of the crimes, to remain in the courtroom. Defense counsel raised no objections to Yarborough’s presence beside the prosecutor during the testimony of the first seven State witnesses. Appellants now contend trial counsel was ineffective for failing to object. However, appellants did not show that the trial court would not have allowed Yarborough to remain to assist the prosecutor with the orderly presentation of the State’s case, see generally Lewis v. State, 283 Ga. 191 (4) (657 SE2d 854) (2008), and have established no prejudice to their defense from Yarborough’s continued presence in the courtroom. To the contrary, the trial transcript reveals defense counsel on cross-examination used Yarborough’s presence favorably to highlight inconsistencies he had heard in the testimony given by the earlier witnesses. This argument is without merit.
(d) Although defense counsel did not object to comments made by the prosecutor in opening statement that the State was “prepared to expose and refute the alibi defense we anticipate from” appellants and was “confident that we have the evidence to prove our case and to disprove the proffered defense,” the record reflects that all appellants gave notice pursuant to OCGA § 17-16-5 (a) to the State of their intent to present an alibi defense, compare Parker v. State, 277 Ga. 439 (2) (588 SE2d 683) (2003) (no notice given); counsel for appellants set forth misidentification and alibi defenses in their opening statements; and all appellants presented alibi witnesses at trial. Accordingly, while it is inappropriate for a prosecutor in a criminal case to discuss in opening statement the evidence the State anticipates the defense will present at trial, Parker v. State, supra at 441 (2), appellants cannot carry their burden of showing that, had trial counsel objected to the prosecutor’s improper comments, there is a reasonable probability the outcome of the trial would have been different. See Jackson v. State, 282 Ga. 494 (3) (651 SE2d 702) (2007). See also Parker, supra at 442 (2) (even where counsel objects, uncorrected argument of prosecutor does not require reversal where it is highly probable the improper argument did not contribute to judgment).
(fj As to appellants’ next assertion, we pretermit whether counsel performed deficiently because, in light of the fact that appellants were tried in superior court, they cannot show how they were prejudiced by Detective Yarborough’s testimony that the magistrate court bound their case over to the superior court.
(g) The trial transcript in this case is certified and, thus, pursuant to OCGA § 15-14-5, we must presume that the garbled version of the voir dire oath contained in the transcript truly, completely and correctly represents the oath actually given by the trial court.
(h) Although not separately enumerated as error, appellants additionally contend trial counsel were ineffective for failing to move to strike for cause potential jurors Pope and Hawk,
4. We find no merit in appellants’ assertion that the trial court violated OCGA § 17-8-57 merely by giving the jury the standard
5. State’s witness Barbara Arnold testified that appellant Cox was at her home with her during the time the charged crimes occurred and asserted that, although she remembered talking with police three days after the charged crimes, she could not remember having told police that appellant Cox had not been with her during the relevant time. When the State recalled Arnold the next day, however, she changed her testimony so that it was consistent with the statement she had given the police. On cross-examination, defense counsel elicited from Arnold that, after leaving the stand the previous day, she had been “locked up” and charged with perjury.
6. The State of Georgia does not recognize the cumulative error rule. Rogers v. State, 282 Ga. 659 (11) (653 SE2d 31) (2007).
Judgments affirmed.
The crimes occurred in the early hours of May 8, 2006. Appellants were indicted January 3, 2007 in Coweta County. The indictment charged each appellant with malice murder, felony murder, three counts of aggravated assault (on victims Redwine, Wood and McGinty) and burglary. Appellants were found guilty of every count on May 4, 2007 and were sentenced that same day to life imprisonment for malice murder and four 20-year sentences on the aggravated assaults and burglary to run concurrently with each other and consecutive to the life sentence. Timely motions for new trial were filed and those motions, as amended, were denied in orders filed February 5, 2008. Notices of appeal were filed by appellant Hargett on February 29, 2008 and by appellants Cox and Armstrong on March 4, 2008. The appeals were docketed June 3, 2008 and orally argued September 22, 2008.
The transcript reveals that defense counsel requested to approach the bench after Green’s questioning was completed and that a discussion off the record occurred. Defense counsel at the hearing on the motion for new trial testified that he approached the bench to raise a motion to strike, which was then denied, and that it was his practice to make such objections before the bench rather than in front of the whole jury panel.
At trial, Wood testified that he had known appellants for years. In response to the prosecutor’s question, “When you say [you had seen them] around Newnan tell us which one you saw around Newnan, where and when?” Wood testified that he had seen appellant Cox at a particular car lot and “the other two defendants on prior occasions coming by to buy powder cocaine.”
We note that when the prosecutor sought to question the witness about the quantum of evidence necessary to bind a case over, defense counsel promptly objected and the prosecutor abandoned the line of questioning.
OCGA § 15-12-132 requires the giving of an oath that “You shall give true answers to all questions as may be asked by the court or its authority, including all questions asked by the parties or their attorneys, concerning your qualifications as jurors in the case of_(herein state the case). So help you God.” The transcript reflects that the voir dire oath given by the trial court started with: “You shall truly answer give to the Court under its authority as to your competency as a juror in the case of the State of the Georgia” and then listed the complete names of appellants and all of the charges, before concluding without the “So help you God” phrase.
A review of counsel’s testimony at the motion for new trial hearing establishes that
Contrary to appellants’ argument, the voir dire oath is not on the same standing as the juror oath. Gober v. State, 247 Ga. 652, n. 2 (278 SE2d 386) (1981). Moreover, while a criminal defendant may not waive the trial court’s complete failure to administer the juror oath, when a juror oath is given that deviates from the one statutorily prescribed, the error in the oath is waived by a defendant’s failure to object. Phillips v. State, 275 Ga. 595 (3) (571 SE2d 361) (2002).
Pope had a cousin and a cousin’s husband who had retired from law enforcement jobs; Hawk had a brother-in-law and a neighbor in law enforcement. While both indicated they might place more credibility on a police officer’s testimony, both affirmatively stated they could fairly and impartially decide the case based on the evidence at trial. See Lampley v. State, supra, 284 Ga. at 39 (3).
The only testimony by an uncalled witness properly adduced in the record, see generally Dickens v. State, 280 Ga. 320 (2) (627 SE2d 587) (2006), came from Latasha White, the cousin of appellant Armstrong’s girlfriend, whose statement was consistent with the alibi testimony given by the girlfriend at trial.
The expert called by appellants acknowledged on cross-examination that eyewitness identification is more reliable where, as here, the individual identified was previously known to the eyewitness.
The record establishes that the arrest did not occur in the presence of the jury.
To the extent this claim is predicated upon the effect on the jury regarding Arnold’s arrest, that evidence was elicited by appellant Cox. “It is well established that induced error is impermissible and furnishes no ground for reversal. [Cit.]” Torres v. State, 272 Ga. 389, 392 (7) (529 SE2d 883) (2000).
Concurring Opinion
concurring.
I concur fully in the Court’s opinion affirming the judgments in these consolidated appeals. I write separately to emphasize that in my view, the prosecutor’s warrantless arrest of defendant Cox’s alibi witness for perjury in the middle of trial, which resulted in her changing her testimony on the stand in a way favorable to the prosecution, violated Cox’s right to due process of law. Such egregious government intimidation of a testifying defense witness constitutes prosecutorial misconduct, regardless of the fact that it occurred outside the presence of the jury.
See Webb v. Texas, 409 U. S. 95, 97-98 (93 SC 351, 34 LE2d 330) (1972); Burke v. State, 66 Ga. 157, 159 (1880). See generally Bennett L. Gershman, Prosecutorial Misconduct § 10.66 (2nd ed.); Lisa A. Wenger, Admonitions Against Peijury or Threats to Prosecute Potential Defense Witness, Inducing Refusal to Testify, as Prejudicial Error, 88 ALR 4th 388 (1991).
Chapman v. California, 386 U. S. 18, 21-24 (87 SC 824, 17 LE2d 705) (1967) (“[W]e hold . . . that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.”).
Reference
- Full Case Name
- Hargett v. the State; Cox v. the State; Armstrong v. the State
- Cited By
- 25 cases
- Status
- Published