Swift v. State
| Decision Date | 25 February 2002 |
| Docket Number | No. S02A0156.,S02A0156. |
| Parties | SWIFT v. The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Herbert Shafer, Atlanta, for appellant.
John T. Morgan, Dist. Atty., Barbara B. Conroy, Mike McDaniel, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Ruth M. Bebko, Asst. Atty. Gen., for appellee.
A jury found Leviticus Swift guilty of alternative counts of malice and felony murder, kidnapping and aggravated assault. The victim of all three offenses was Deanthony Carter. Concluding that the verdict on the felony murder charge was vacated by operation of law, the trial court sentenced appellant to life imprisonment for malice murder. Malcolm v. State, 263 Ga. 369, 371(4), 434 S.E.2d 479 (1993). The trial court imposed a consecutive 20-year term for the kidnapping and a consecutive 10-year term for the aggravated assault. Swift appeals from the judgments of conviction and sentences entered on the jury's guilty verdicts.1
1. The grand jury indicted Swift, Charles Harris and Larry Burgess for the crimes. After pleading guilty to false imprisonment and aggravated assault, Harris testified for the State at Swift's and Burgess' joint trial. During that trial, the prosecution showed that Carter stole drugs belonging to appellant. Angry about the theft, Swift confronted him at gunpoint. With the assistance of Burgess, appellant bound the victim's hands and ankles with tape. They then put Carter into the trunk of Harris' car, and Harris drove to a remote area. Swift, Burgess and several others, including Desmond Diaz, followed in another vehicle. Carter was shot twice in the head. According to Diaz, Burgess shot the victim and then gave the gun to appellant who fired the second bullet. Harris testified that Burgess fired once and, almost a minute later, fired again. The medical examiner testified that either shot would have caused death. He also expressed an opinion that both bullets were fired in rapid succession, the implication being that there was only one shooter. In closing argument, the prosecutor acknowledged the discrepancy between Diaz's and Harris' version of the homicide. He told the jury that, based upon the medical examiner's testimony, the State's theory was that Burgess fired both shots and, therefore, that Diaz was wrong when he attributed the second shot to Swift. In its jury charge, the trial court instructed on parties to a crime.
When construed most strongly in support of the verdicts, the evidence is sufficient to authorize a rational trier of fact to find proof beyond a reasonable doubt that appellant directly committed the kidnapping and aggravated assault and that he was guilty as a party to the murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Eckman v. State, 274 Ga. 63, 64(1), 548 S.E.2d 310 (2001).
2. Swift urges that his convictions are the product of prosecutorial misconduct because the State knowingly used perjured testimony....
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