Allen v. State

• Decision Date: 27 March 2015
• Docket Number: No. S14A1430.,S14A1430.
• Parties: ALLEN v. The STATE.
• Court: Georgia Supreme Court

296 Ga. 785

770 S.E.2d 824

ALLEN

v.The STATE.

No. S14A1430.

Supreme Court of Georgia.

March 27, 2015.

Stanley W. Schoolcraft III, John Walter Kraus, McDonough, for appellant.

Christian Alexander Fuller, Asst. Atty. Gen., Patricia B. Attaway Burton, Dep. Atty. Gen., Paula Khristian Smith, Senior Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Atlanta, Elizabeth A. Baker, Asst. Dist. Atty., Tracy Graham–Lawson, Dist. Atty., Kathryn L. Powers, Asst. Dist. Atty., Jonesboro, for appellee.

Opinion

HINES, Presiding Justice.

Miles Jonathan Allen appeals from his convictions and sentences for malice murder, aggravated assault, kidnapping, and false imprisonment, all in connection with the death of Carlnell Walker. For the reasons that follow, we affirm.¹

Construed to support the verdicts, the evidence showed that Keith Roberts contacted Allen, as well as Breylon Garland and Theodore Holliman, about retaliating against Walker for disrespecting Roberts, and to get some money that Roberts believed Walker owed him. They went to Walker's home and broke in; Walker was not home, and Allen and Holliman waited for him while Roberts and Garland went to a store. Walker arrived: Allen struck him in the face, knocking him down, and Holliman bound him. When the other men returned, the four beat, stabbed, and tortured Walker; despite their demands, Walker said that he did not have the money that his attackers sought. The four then placed the bound and gagged Walker in the trunk of his car in the garage; he was still alive. Roberts and Holliman drove away, leaving Allen and Garland behind; shortly thereafter, Allen and Garland walked to a gas station to get a ride from a friend.

After Walker's mother had not heard from him in two weeks, a Clayton County police officer went to Walker's home on July 8, 2006, and found furniture upended, blood splatters on the walls, and Walker's decomposing body in the trunk of his car. Walker had been beaten, stabbed, bound, and placed in the trunk of the car. Allen's bloody palm print was recovered from Walker's hallway walls, and Allen's jeans were also found in the home, stained with Walker's blood. Walker died of hyperthermia from being left in the car.

Holliman testified for the State at Allen's trial. In his own defense, Allen testified that he was at the crime scene and participated in the violence against Walker, but only because he feared Roberts, who, during the commission of the crimes, said “what's happening to [Walker] could happen to anybody in the room.”

1. Allen contends that the evidence was insufficient to convict him of Count 3 of the indictment, felony murder while in the commission of armed robbery. However, Allen was sentenced for malice murder, and not for felony murder while in the commission of armed robbery, and any issue with regard to that count is now moot. See Bostic v. State, 294 Ga. 845, 847(1), 757 S.E.2d 59 (2014). As for the remaining charges, the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Allen was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Allen contends that the trial court failed to strike for cause a prospective juror who he claims was a United States Marshal with arrest powers. However, when he addressed the court regarding the prospective juror after the jury was selected, he referred to the prospective juror as a “POST certified officer,” and when the court corrected him, and noted that “he was actually a corrections officer I believe at the Federal Penitentiary,” Allen responded: “That's right.” The trial court correctly ruled that striking the challenged juror for cause was not required as “[a] corrections officer is not subject to an excusal for cause because he is not a sworn police officer with arrest powers. Pace v. State, 271 Ga. 829(10), 524 S.E.2d 490 (1999).” Prince v. State, 277 Ga. 230, 235(3), 587 S.E.2d 637 (2003). Although Allen now asserts that the State made an admission in judicio as to the prospective juror's status when it referred to him as a “U.S. Marshal,” read in context, the reference was made as part of the prosecutor's recollection as to why the prospective juror had “signed some paper for federal but not state [sic]”² See Morgan v. Howard, 285 Ga. 512, 513(3), 678 S.E.2d 882 (2009). No evidence of the prospective juror's status was presented either at trial, or on the motion for new trial, and Allen fails to show that the trial court erred in refusing to strike him for cause. See Thornton v. State, 264 Ga. 563(13)(b), 449 S.E.2d 98 (1994).

3. After jury deliberations began, Allen moved for a mistrial, asserting that an article in the local newspaper showed that the chief prosecuting attorney had violated a gag order that the court had imposed; the article attributed statements to the prosecutor regarding Allen's motive. The order prohibited remarks concerning the defendant's guilt or innocence, and the evidence in the case, stating: “This Order may be enforced by the contempt powers of this Court.” The State noted that a reporter for the newspaper had been present during trial, as had television reporters, and that the text of the article could have been produced from the evidence presented, and from the opening statements of the prosecutor. The court denied the motion for mistrial, ruling that there was no evidence that any juror had seen it, or other news media coverage, which would have violated the court's regular instructions to the jury. And, “ ‘[i]t is presumed that jurors follow a trial court's instructions [cit.]’ ” Nelms v. State, 285 Ga. 718, 722(3), 681 S.E.2d 141 (2009) The court also found that there was no evidence that the chief prosecutor had, in fact, violated the gag order; the court noted that the information that was in the article and ascribed to the chief prosecutor was the same as that which had been presented during the court proceedings. The trial court did not err in denying the motion for mistrial. Id.

4. The State introduced a video recording of Allen's interview with investigating detectives, which was played for the jury. During the interview, Allen said he had “smoked” with the victim sometime before the day of the crimes, and a detective responded that he “[didn't] care” about “smoking weed.”³ Allen contends that this constituted an improper comment on his character, and that the trial court should have granted his motion for a mistrial. See Ryans v. State, 293 Ga. 238, 242(3), 744 S.E.2d 759 (2013). The court denied the motion and instructed the jury that anything in the detective's response represented only an assumption on his part, that there was no proof of Allen committing any marijuana offense, and that “any opinion or assumption of the detective in this regard” was to have no part in the jury's deliberations; the court further asked if any juror would not be able to follow these instructions, and there were no responses indicating that any juror would be so unable.

“Whether to grant a mistrial based on improper character evidence is within the discretion of the trial court. [Cit.] We have held that curative instructions are an adequate remedy when a witness inadvertently refers to a defendant's prior convictions or criminal acts.” Bunnell v. State, 292 Ga. 253, 257(4), 735 S.E.2d 281 (2013). To the extent that the detective's comment suggested a criminal act on Allen's part, there was no error in denying the motion for mistrial based upon the incidental reference to Allen's character. See Moore v. State, 295 Ga. 709, 714(3), 763 S.E.2d 670 (2014) ; Roebuck v. State, 277 Ga. 200, 205(5), 586 S.E.2d 651 (2003).

5. During the playing of the same video recording, Allen objected to a detective's comment to Allen that “you don't know who I've talked to ... you don't know what those people told me,” as well as the remark of a second detective that “somebody gave up your name,” and the admonition that Allen should reveal his fellow actors as “your buddies have already dropped the name on you.” Allen contends that the admission of the detectives' statements constituted a violation of his right to confront his accusers under the Sixth Amendment to the Constitution of the United States, i.e., that the statements of co-conspirators were placed before the jury without him having the opportunity to cross-examine the co-conspirators about the statements. However, the Sixth Amendment Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. [Cit.]” Crawford v. Washington, 541 U.S. 36, 59(IV), n. 9, 124 S.Ct. 1354, 1369, 158 L.Ed.2d 177 (2004). And, the detectives' statements were clearly not meant to establish as true that others had implicated Allen, but were simply a part of an interrogation technique. See Rowe v. State, 276 Ga. 800, 803(2), 582 S.E.2d 119 (2003). See also Jackson v. State, 262 Ga.App. 451, 585 S.E.2d 745 (2003) (overruled on other grounds by Carter v. State, 266 Ga.App. 691, 693(2), 598 S.E.2d 76 (2004) ; Huckeba v. State, 217 Ga.App. 472, 477(5), 458 S.E.2d 131 (1995). The detectives did not identify the “buddies” mentioned, and no substance of any supposed statements was placed before the jury by the detectives' reference. Compare Yancey v. State, 275 Ga. 550, 551–552(2), 570 S.E.2d 269 (2002) ).

Allen also contends that these statements constituted violations of then-effective OCGA § 24–3–52, which provided, in toto, that “[t]he confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself.” Assuming that this argument is preserved for appellate review,⁴ it has no merit.

Again, no confession of a conspirator was admitted against Allen by virtue of the detectives' interrogation technique. Compare O'Neill v. State, 285 Ga. 125, 674 S.E.2d 302 (2009).

6. Outside the presence of the jury, Allen sought to exclude...