Alexander v. State

• Decision Date: 04 October 1993
• Docket Number: No. S93A1044,S93A1044
• Citation: 435 S.E.2d 187,263 Ga. 474
• Parties: ALEXANDER v. The STATE.
• Court: Georgia Supreme Court

Page 187

435 S.E.2d 187

263 Ga. 474

ALEXANDER v. The STATE.

No. S93A1044.

Supreme Court of Georgia.

Oct. 4, 1993.

Reconsideration Denied Oct. 29, 1993.

Drew Findling, Anna Blitz, Atlanta, for Alexander.

Lewis R. Slaton, Dist. Atty., Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Dept. of Law, Atlanta, for the State.

Peggy R. Katz, Staff Atty., Atlanta.

Leonora Grant, Asst. Dist. Atty., Atlanta.

Rebecca A. Keel, Asst. Dist. Atty., Atlanta.

SEARS-COLLINS, Justice.

Reginald Alexander appeals his convictions of involuntary manslaughter, felony murder, arson in the first degree, and trafficking in cocaine. ¹ The trial court merged the involuntary manslaughter conviction and the arson conviction into the felony murder conviction, and sentenced Alexander to life imprisonment for felony murder. The court sentenced Alexander to a term of years for trafficking in cocaine, to run consecutively with the life sentence.

1. Alexander and the victim, Carla Breach, had a turbulent romantic relationship for a period of months before March 1, 1991. On that day, Breach's apartment exploded in flames and Breach received second and third degree burns over 95 percent of her body. She died from those burns the next day. When considered in the light most favorable to the verdict, the evidence presented at trial was sufficient for the jury to find beyond a reasonable doubt that Alexander intentionally poured gasoline on Breach, struck a match, and tossed the lighted match in the puddle of gasoline at Breach's feet. ² Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). After being served with an arrest warrant, Alexander gave a written statement to police, in which he claims that the death was accidental.

2. In his first four enumerations of error, Alexander alleges that the prosecutor committed misconduct which warranted a mistrial under case law, OCGA § 17-8-75 ³, or both:

(a) Alexander first contends that the prosecutor wrongly implied during closing argument that the fact that the defendant hired an attorney who began preparing his defense the day after giving his statement to police reflected on the appellant's guilt or innocence, and wrongly implied that defense counsel "planned" a portion of the defense by "strategically placing" exculpatory items in Alexander's car and having them photographed by a defense expert. ⁴ We find no error.

While counsel may not state "prejudicial facts which are not in evidence ..., it is permissible for counsel to draw deductions from the evidence regardless of how illogical and unreasonable...." Adams v. State, 260 Ga. 298, 299, 392 S.E.2d 866 (1990) (citation omitted). Each of the statements made by the prosecutor with respect to the photographs and the retention of counsel was drawn directly and solely from the photographs themselves or from testimony. Therefore, this was a " 'matter for reply by adverse counsel, not for rebuke by the court[,]' [cit.]," id., and a mistrial was not required.

(b) During closing argument, the prosecutor referred to testimony by Antonio Breach, the victim's brother, that Alexander and five associates, including a man named "Big Mike," had prepared cocaine for sale in the victim's apartment. The prosecutor said "Big Mike and the gang, and you've seen the gang here." The appellant argues that the prosecutor's use of the word "gang" in reference to the appellant's acquaintances and family present in the courtroom during the trial was cause for mistrial because of the negative connotations of the word "gang."

We find that the prosecutor's use of the word "gang" was not improper. In addition to Antonio Breach's testimony about Alexander's five "associates," the salesman who sold Alexander the car which he had been driving on the day of the fire testified that when Alexander bought the car at the dealership, he was accompanied by about eight men. Alexander himself testified regarding at least two occasions when he was out at a night club with a group of male friends. In light of this testimony, we find that the prosecutor's use of the word "gang," as in "Big Mike and the gang," was a reasonable reference to people who the evidence showed spent time with the appellant.

We do find troublesome the prosecutor's statement that "you've seen the gang here," apparently referring to persons who had been present in the courtroom during the trial. As the rule of sequestration was invoked and there were no witnesses in the courtroom, this gesture by the prosecutor related to matters not in evidence and cannot be lightly overlooked. However, an error is harmless if it is "highly probable that the error did not contribute to the jury's verdict." Johnson v. State, 238 Ga. 59, 61-62, 230 S.E.2d 869 (1976). We have carefully reviewed the entire record, and faced with the compelling evidence against Alexander (see appendix), we conclude that the harmless error standard adopted in Johnson has been met.

(c) In his written statement to the police, Alexander said "Anyone who knows me would tell you I would never do that." The statement was read and introduced into evidence at trial. In her closing argument, the prosecutor referred to Alexander's written statement and asked the jury "Where is Big Mike? ... Where are all those people" who would testify that Alexander was not the type of person who would commit the crimes with which he was charged? Alexander now contends that the prosecutor's comment was an improper attack on his character. See generally Jones v. State, 257 Ga. 753, 363 S.E.2d 529 (1988).

First of all, we note that it takes an inferential leap to construe the prosecutor's words as a comment on Alexander's character. ⁵ Furthermore, while counsel may not introduce facts which are not in evidence during closing argument, OCGA § 17-8-75, counsel has wide latitude during closing argument to remark upon the evidence and facts which are before the jury. See Robinson v. State, 257 Ga. 194, 196(4), 357 S.E.2d 74 (1987). There is no question that Alexander's statement was part of the evidence before the jury, as it had been read in full from the witness stand. ⁶ The prosecutor's closing query to the jury about those people to whom Alexander refers in his written statement introduced nothing extrinsic to the evidence, as the comment was confined to the written statement, and the jury had observed the full complement of witnesses presented by the defense. Therefore, we hold that the closing argument was within the range allowed counsel when commenting on evidence properly admitted at trial. ⁷ See Robinson, supra, 257 Ga. at 196, 357 S.E.2d 74; see also Blanks v. State, 254 Ga. 420, 424(5), 330 S.E.2d 575 (1985) (closing argument reference to statement made by defendant during custodial interrogation was not outside the evidence) (cert. denied 475 U.S. 1090, 106 S.Ct. 1479, 89 L.Ed.2d 733).

(d) Next, Alexander contends that mistrial was required because the prosecutor gave her personal opinion as to the credibility of witnesses during closing argument. ⁸

"[I]t is improper for counsel to state to the jury his personal belief as to the veracity of a witness. [Cits.] However, it is not improper for counsel to urge the jury to deduce such a conclusion from proven facts." Shirley v. State, 245 Ga. 616, 618, 266 S.E.2d 218 (1980). The credibility of each of the witnesses referred to by the prosecutor was attacked by the defense both in cross-examination and in closing argument. Upon review of the state's entire argument, it is clear that the tenor of the prosecutor's statements was to counteract the attacks by the defense and to urge the jury to believe the testimony of the witnesses based on the evidence, see Shy v. State, 234 Ga. 816, 824, 218 S.E.2d 599 (1975). Even so, the isolated remarks appear to express the prosecutor's personal beliefs, and were not proper. However, considering the entire closing argument, as well as the abundance of evidence against Alexander (see appendix), we are convinced that it is "highly probable" that the jury would have reached the same verdict had these statements not been made. See Johnson v. State, 238 Ga. at 61-62, 230 S.E.2d 869.

(e) Finally, Alexander argues that the prosecutor's failure to provide the appellant with the correct address of a key state witness before trial demanded a mistrial. We find no error. The record reveals that the defense received the witness's street address, though not the building number, and that the defense was actually able to see the witness before trial, and the witness declined to discuss the case with the defense. See Rhodes v. State, 193 Ga.App. 28, 30, 386 S.E.2d 857 (1989).

3. The appellant argues that the trial judge erred in denying his motion for directed verdict on the arson charge, since the state did not offer any evidence of the appellant's intent to burn the victim's apartment. "Arson has three basic elements: (1) damage by fire or explosion; (2) the intentional act or direction of the defendant knowing that it will damage a protected structure; and (3) lack of the owner's consent." Kurtz, Criminal Offenses and Defenses in Georgia 7 (R. Cleary 3d ed. 1991). There is no dispute that the victim's apartment was damaged by fire without her consent, and that it is a protected structure under OCGA §§ 16-7-60 and 16-7-61. Furthermore, Alexander does not dispute that it was he who struck the match that started the fire, but he claims that it was an accident.

The state presented evidence that Alexander had threatened the victim's life more than once before the fire and had physically abused the victim. The state's arson expert testified that the fire began in a puddle of gasoline on the floor which was ignited close to the floor, and that the extent of Alexander's injuries and the fact that Alexander's clothes were not burned made the version of the fire set forth in Alexander's written statement impossible. We find that this evidence presented...