Adams v. State

• Decision Date: 28 February 1994
• Docket Number: Nos. S93A1956-S93A1958,s. S93A1956-S93A1958
• Citation: 264 Ga. 71,440 S.E.2d 639
• Parties: ADAMS v. The STATE. HINTON v. The STATE. WARD v. The STATE.
• Court: Georgia Supreme Court

Page 639

440 S.E.2d 639

264 Ga. 71

ADAMS v. The STATE.

HINTON v. The STATE.

WARD v. The STATE.

Nos. S93A1956-S93A1958.

Supreme Court of Georgia.

Feb. 28, 1994.

Reconsideration Denied March 25, 1994.

George C. Rosenzweig, Rosenzweig, Kam, Jones & MacNabb, Newnan, for Derick Demond Adams.

R. Keith Prater, Glover & Davis, P.A., Newnan, for Timothy Bernard Hinton.

Steven E. Fanning, Fanning & Hudson, Newnan, for Harold Jermaine Ward.

Peter J. Skandalakis, Dist. Atty., LaGrange, Michael J. Bowers, Atty. Gen., Atlanta, Agnes McCabe, Asst. Dist. Atty., Newnan, and Susan V. Boleyn, Sr. Asst. Atty. Gen., Dept. of Law, Paige M. Reese, Staff Atty., Atlanta, for the State.

BENHAM, Justice.

These appeals are from appellants' convictions for malice murder and aggravated assault. ¹ The evidence at trial authorized the jury to find as fact the following sequence of events. Appellants and two others, Hand and Smith, gathered to attend a county fair on the evening of the murder. Prior to leaving for the fair, Adams suggested that there might be trouble at the fair and asked Smith to get a sawed-off shotgun to which he had access and to bring shells for it. Adams put the shotgun in the trunk of his car and put the shells on the dashboard. When Adams and Smith got to Ward's home, Ward put a .22 caliber pistol in the car. On the way to the fair, the presence of the shotgun was discussed by the whole group. Trouble did arise at the fair in the form of a confrontation between appellants and their friends and another group of young men which included the victims in these cases. Hinton knew the victims and asserted that the murder victim had threatened to shoot him and that the aggravated assault victim held a gun to his head at the fair. When both groups were required to leave the fair, the two victims departed on foot and appellants left with Smith and Hand in Adams' car with Ward driving. All five of appellants' group were angry about being ejected from the fair. Driving around while allegedly looking for a party, the group saw the two victims walking and began discussing whether to confront them. At the mention that the victims might be armed, Hinton suggested getting the shotgun from the trunk. Ward stopped at a convenience store and left the car while Adams opened the trunk and Hinton got the shotgun. When they left the convenience store, Ward was driving, Adams was in the front passenger seat, Hinton was on the passenger side of the backseat, with Hand in the middle of that seat and Smith behind the driver. Adams handed the shotgun shells to Hinton, who loaded the weapon. The group then rode around until they spotted the victims again, whereupon there was some discussion about scaring the victims. Ward turned off the headlights and drove up behind the victims. Adams and Hinton pulled hoods up to cover their heads. As the car pulled even with the victims, Adams held the pistol out of the window and fired into the air. Hinton then leaned over Smith and Hand, both of whom ducked, stuck the shotgun out of the driver's-side back window, and fired one shot in the direction of the victims, one of whom was fatally wounded by that single shot. After arguing over whether Hinton had hit anyone with his shot, with Hinton expressing the hope that he had killed one of the victims, the group went to Smith's brother's house to stash the guns. All five occupants of the car were arrested and subsequently indicted for malice murder and aggravated assault. Smith entered a guilty plea to aggravated assault as an included offense of murder and was sentenced to 10 years, five to serve. A nolle prosequi was entered as to the second count with regard to Smith and as to both counts with regard to Hand.

1. "[I]t is the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction. [Cits.]" Stephenson v. Futch, 213 Ga. 247(1), 98 S.E.2d 374 (1957). We note that Hinton's appeal would be subject to dismissal for failure of his counsel to file a timely motion for new trial or notice of appeal, but inasmuch as the failure to file the appeal would be considered ineffective assistance of counsel, entitling Hinton to an out-of-time appeal, we will consider his enumerations of error under the reasoning of Thornton v. Ault, 233 Ga. 172, 210 S.E.2d 683 (1974), and Mitchell v. State, 157 Ga.App. 181(1), 276 S.E.2d 864 (1981). See also American Druggists' Ins. Co. v. Harris, 253 Ga. 535, n. 1, 322 S.E.2d 496 (1984), noting that an out-of-time appeal can be considered in a criminal case, even without an order of the trial court, "where counsel would be deemed ineffective by failing to perfect a timely appeal. [Cits.]"

2. The facts set out above establish that the evidence was sufficient to authorize a rational trier of fact to find appellants guilty of both offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

"Mere presence at the scene is not sufficient to convict one of being a party to a crime," but criminal intent may be inferred from conduct before, during, and after the commission of the crime. [Cit.]

Sands v. State, 262 Ga. 367(2), 418 S.E.2d 55 (1992).

3. All three appellants filed motions for severance of their trials from the others, arguing that confusion was inevitable in this case due to the number of defendants and their interlocking statements.

Factors to be considered by the trial court in exercising its discretion concerning a request for severance are: "whether a joint trial will create confusion of evidence and law; whether there is danger that evidence implicating one defendant will be considered against another defendant despite cautionary instructions to the contrary; and whether the codefendants will press antagonistic defenses. [Cit.]" To be successful, a defendant seeking severance must clearly show that the joinder will result in prejudice to him or her and a consequent denial of due process. [Cit.] The trial court's ruling as to a request for severance will only be overturned where an abuse of discretion on the part of the trial court can be demonstrated. [Cit.]

Brown v. State, 262 Ga. 223(2), 416 S.E.2d 508 (1992).

It is incumbent upon the defendant seeking severance to show that he will be prejudiced by a joint trial. It is not enough to claim that he has a better chance of acquittal in a separate trial. Rather, the burden is on defendant to show clear prejudice and in the absence of this showing the trial court's denial of the motion to sever will not be disturbed. [Cits.]

Satterfield v. State, 256 Ga. 593(3), 351 S.E.2d 625 (1987).

Appellants have not shown the requisite prejudice required to make the denial of their motions to sever an abuse of discretion. Their defenses were not genuinely antagonistic since there was no dispute concerning which actions were taken or by whom, and all the defendants relied on lack of intent. As to confusion between the defendants, we note that the trial court repeatedly instructed the jurors that pretrial statements were to be considered only against the makers of the statements and that the jury was required to make an independent judgment of the guilt or innocence of each of the defendants separately. Under those circumstances, we find no abuse of discretion in the denial of the motions to sever. See also Kesler v. State, 249 Ga. 462(4), 291 S.E.2d 497 (1982).

4. Adams and Ward complain that the trial court erred in permitting the State to impeach Hand and Smith through the use of statements given by the witnesses to two police officers prior to trial. The chief argument they make on appeal is that the State failed to lay the proper foundation to impeach its own witnesses. However, even assuming that the objections made at trial were directed to the failure to lay a foundation, appellants did not, as they must, state what the proper foundation would be.

" 'Objection on the ground of a lack of proper foundation without stating what the proper foundation should be is insufficient and presents nothing for consideration on appeal. (Cits.)' Newman v. State, 239 Ga. 329, 330 (236 SE2d 673) (1977)." [Cit.]

Sinkfield v. State, 201 Ga.App. 284(4), 411 S.E.2d 68 (1991).

Insofar as appellants' argument on appeal is that they were denied their right to confront the witnesses against them, specifically the officers who took the contested statements, their argument is without merit: both officers testified and were available for cross-examination by appellants. Thus, there was no denial of appellants' right to confrontation.

5. Adams and Hinton complain of the trial court's refusal to permit them to have additional peremptory jury strikes. Defendants being tried jointly do not have a right to additional strikes.

... When two or more defendants are tried jointly for a crime or offense, such defendants shall be entitled to the same number of strikes as a single defendant if tried separately. The strikes shall be exercised jointly by the defendants or shall be apportioned among the defendants in the manner the court shall direct. In the event two or more defendants are tried jointly, the court, upon request of the defendants, acting in its sole discretion, may allow an equal number of additional strikes to the defendants, not to exceed five each, as the court shall deem necessary, to the ends that justice may prevail.

OCGA § 17-8-4. The statute places the decision whether to grant additional strikes in the sole discretion of the trial court, and a trial court's exercise of that discretion will be disturbed only where an abuse of discretion can be demonstrated. Willis v. State, 258 Ga. 477(2), 371 S.E.2d 376 (1988).

Adams' complaint is that he would have made different decisions about which jurors to strike, but he has not alleged any harm arising from the selection of the jury. If Hinton's argument is, as it appears, that he should have had more...