Alexander v. State
| Citation | 509 S.E.2d 56,270 Ga. 346 |
| Decision Date | 04 December 1998 |
| Docket Number | No. S98A0969.,S98A0969. |
| Parties | ALEXANDER v. The STATE. |
| Court | Supreme Court of Georgia |
OPINION TEXT STARTS HERE
Reginald L. Bellury, Milledgeville, for Darien Lee Alexander.
Fredric Daniel Bright, Dist. Atty., Gray, Stephen A. Bradley, Asst. Dist. Atty., Milledgeville, Thurbert E. Baker, Atty. Gen., Angelica M. Woo, Asst. Atty. Gen., Department of Law, Atlanta, for the State.
The appellant, Darien Alexander, appeals from his conviction for malice murder stemming from the shooting death of Delma Goddard, as well as from his conviction for falsely reporting a crime.1 On appeal, Alexander contends, among other things, that the prosecutor explained in his opening statement that the evidence would show that the crime was gang-related, that the evidence did not show such a connection, and that therefore the prosecutor's opening statement regarding the gang-related nature of the crime requires reversal. We agree with Alexander that the prosecutor failed to offer evidence of the gang activity that he detailed in his opening statement, and that Alexander's convictions must therefore be reversed.
The evidence showed that sometime between 6:00 and 7:00 p.m. on May 26, 1996, Alexander, along with Rondrell Durden, Rodriguez Hartry, and several others, went to a "Stop the Violence" rally at Bonner Park in Milledgeville, Georgia, in Alexander's pickup truck. A brown van pulled next to Alexander's truck, and an argument ensued. Two police officers saw the argument and approached. Alexander and his friends, as well as the occupants of the van, saw the officers and drove off.
About 8:00 p.m. on May 26, Alexander was at the Milledgeville Manor apartments with Raheem Vasser, Rodriguez Hartry, Rondrell Durden, and Danny and David Renfro. Mr. Hartry had a nine millimeter handgun. According to David Renfro, Durden suggested that they take a ride to Fifth Street. David testified that Hartry then said, "they're having a party down there." Danny and David testified that about 8:00 p.m. they all left the Manor apartments in Alexander's pickup truck, and drove to the Renfros' home. Once there, Vasser, who had been riding in the passenger seat and who is the Renfros' brother, asked David Renfro to get his shotgun. David got it and gave it to Vasser. Danny and David Renfro stayed at their house, but the other four left in Alexander's truck, with Alexander driving, Durden in the passenger seat, and Vasser and Hartry in the bed of the truck.
Vasser testified against Alexander, stating that he saw Alexander, Durden, and the Renfros at the Manor, and that they left there to go to his house (also the home of the Renfros) to get a shotgun. Vasser stated that David Renfro got Vasser's shotgun, and that Vasser, Alexander, Durden, and Hartry then drove to Fifth Street, with Alexander driving the truck, Durden riding in the passenger seat, and Vasser and Hartry riding in the bed of the truck. Vasser testified that he had the shotgun, and that Hartry had a nine millimeter handgun. He also stated that they were going to Fifth Street to get some marijuana. According to Vasser, they drove down Fifth Street, a dead-end street, and turned around. He testified that, when they were coming back up Fifth Street, he said that he was "fixing to shoot up in the air"; that he then fired the shotgun twice into the air; and that Hartry fired the pistol two or three times. Vasser testified that he thought that Hartry was holding the gun level when he fired. Vasser testified that he and Hartry were shooting just to try to scare people.
Doris Brown was sitting on her front porch at 157 Fifth Street on the evening of May 26 visiting with several of her family members. One of those visiting was her son-in-law, Delma Goddard. Ms. Brown testified that she saw Alexander's truck drive down the street, and that she thought that someone turned off the truck's lights. She added that when the truck come back up the road, and reached her residence, several shots were fired from the bed of the truck. A bullet hit Delma Goddard in the neck, severing his carotid artery. He later died from the wound. Forensic evidence established that a bullet recovered from Ms. Brown's residence was fired from Hartry's weapon. A relative of Ms. Brown's who was standing beside the porch testified that he saw Hartry aim the weapon at the porch area and fire it, and that he saw the other person in the back of the truck fire a shotgun into the air.
Almost immediately after the shooting, Alexander encountered a police car, and he and his co-defendants abandoned Alexander's truck and fled on foot. According to David Renfro, shortly after he was dropped off at home, he heard shots and then sirens. David and Danny then saw Hartry, Alexander, and Durden running up their street. David testified that Alexander appeared nervous, and that Hartry asked to use the phone. David added that he heard Hartry say his sister's name and then tell her that if anyone asked where he had been, to tell them that he had been at home all day. David testified that Hartry also called Michelle Mason and ask her to pick them up at the Renfros' home; that a few minutes later Michelle arrived in her car; and that Hartry, Alexander, and Durden then left with Michelle. Alexander subsequently reported to the police that his pickup truck had been stolen.
Alexander and Hartry were tried jointly, and both were found guilty of malice murder. Alexander was also found guilty of falsely reporting a crime.2
1. Having reviewed the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Alexander was a party to the crime of murder and was guilty of falsely reporting a crime.3
2. Alexander contends that his conviction should be reversed because the prosecutor gave a detailed explanation during his opening statement regarding how he expected the evidence to prove that the shooting was gang-related, but during trial failed to offer evidence to support his assertions.
Before trial, Alexander filed a motion to prohibit the prosecutor from referring to gangs in his opening statement or at trial. The trial court denied the motion based upon the prosecutor's statement that he would introduce evidence that the motive for the crime was gang-related.4 During the prosecutor's opening statement, and over defense counsel's objection, the trial court permitted the prosecutor to explain that he would show that Alexander, Hartry, Vasser, and Durden were members of the Folks Gang; that they were involved in an argument with some members of the Blood Gang at the "Stop the Violence" rally; that the Blood Gang is known to "hang out" in the Fifth Street area; that, because Alexander and his companions were mad about the earlier argument, they went to Fifth Street and committed the drive-by shooting to terrorize a neighborhood of the Blood Gang.
During the trial of the case, however, despite his detailed recital of what he expected the evidence to show in the way of gang activity, the prosecutor did not attempt to establish the identity of the people with whom Alexander and his friends argued at the "Stop the Violence" rally. Further, although defense counsel asked a state's witness if he knew the identity of the driver of the van at the rally, and although that witness readily identified the driver, the prosecutor did not call that person as a witness at trial in an attempt to establish that he and his friends were members of the Blood Gang. The prosecutor, in fact, made no attempt to establish this fact at trial. Further, despite specifically stating in his opening statement that the evidence would show that Fifth Street was within the territory of the Blood Gang, the prosecutor similarly made no attempt to establish that fact. Finally, despite specifically stating that he would demonstrate that Alexander and his friends were members of the Folks Gang, the prosecutor only established that Vasser was a member of that gang, and made no attempt to show that Alexander or any of his other friends were members of the gang.5 In addition, the record shows that Vasser was not at the rally at Bonner Park. Based on these circumstances, we conclude that the record demonstrates that the prosecutor failed to offer evidence of the significant connection to gangs that he detailed in his opening statement.
We have held that a prosecutor should confine his opening statement to an outline of what he expects admissible evidence to prove at trial, and that if a prosecutor departs from these guidelines, a conviction will not be reversed if the prosecutor acted in good faith and if the trial court instructs the jury that the prosecutor's opening statement is not evidence and has no probative value.6 As stated in the ABA Standards For Criminal Justice, "[t]he prosecutor's opening statement should be confined to a brief statement of the issues in the case and to remarks on evidence the prosecutor intends to offer which the prosecutor believes in good faith will be available and admissible." 7 Because it is the prosecutor's duty to abide by this rule, and because, when a prosecutor does not offer evidence during trial to support what he said he would prove in opening statement, the only person in many instances who will know the reason for this failure is the prosecutor, we conclude that it is appropriate to place the burden on the prosecutor to show that the failure to offer this proof was in good faith. This burden is consistent with the burden we place on prosecutors in a similar context. In this regard, we have held that when a prosecutor is cross-examining a defense character witness concerning other criminal charges brought against the defendant, and the defendant objects, "the prosecuting officer is required to demonstrate that the `questions were asked in good faith, and based on reliable...
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