Barnes v. State
| Citation | 269 Ga. 345,496 S.E.2d 674 |
| Decision Date | 02 March 1998 |
| Docket Number | No. S97P2069,S97P2069 |
| Parties | , 98 FCDR 724 BARNES v. The STATE. |
| Court | Supreme Court of Georgia |
James E. Millsaps, Horace Jerome Johnson, Jr., Covington, for Joseph Martin Barnes.
Alan A. Cook, Dist. Atty., Covington, Patricia Beth Attaway, Asst. Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Department of Law, Atlanta, W. Kendall Wynne, Jr., Asst. Dist. Atty., Covington, for State.
Stephen C. Bayliss, Atlanta, for other interested parties.
Joseph Martin Barnes was convicted of malice murder, felony murder, and armed robbery. 1 The jury recommended a death sentence for the murder, finding as a statutory aggravating circumstance that the murder was committed during the commission of an armed robbery. 2 On appeal, we find that the trial court improperly restricted the scope of mitigating evidence presented to the jury in the sentencing phase and, therefore, we reverse the death sentence and remand for a new sentencing trial. We affirm Barnes' convictions.
Barnes, 22 years old at the time of the killing, claimed self-defense. The evidence showed that the victim was a 57-year-old man named Prentiss Wells. Mr. Wells was, according to Barnes, "elderly" and "mentally slow," and others testified that he was slightly disabled due to a previous stroke. Wells bought a flea market stall several months before his death, and he often purchased used items that he intended to later sell. He frequently carried a large amount of cash with him. Barnes and his co-defendant, Tim Brown, met Wells about a month before his death, and assisted him with errands on several occasions. Barnes and Brown noticed the cash that Wells often carried, and they talked about robbing him. On February 12, 1992, they went to a pawn shop where Brown bought a shotgun and Barnes bought a Davis Industries .380 pistol.
The next day, Wells went with Barnes and Brown in Brown's pick-up truck. The two men moved a piano for Wells and later took him to look at an old truck that he was thinking about buying. Wells had $5800 in cash on him--Barnes and Brown saw it "hanging out of his pocket." When they were driving on a dirt road, Barnes, who was sitting in the middle of the front seat, told Wells, who was sitting to Barnes' right, that he wanted his money. Wells resisted and a physical altercation erupted. Brown stopped the truck, and Barnes and Wells exited the passenger side and continued fighting. Barnes testified that he was mostly warding off Wells' blows and only hitting back to make Mr. Wells stop. The medical examiner testified, however, that Wells had twelve impact blows on the left side of his head and face, several centered around a star or diamond shaped laceration possibly caused by a ring or a gun barrel. One of the lacerations penetrated all the way through the scalp to Wells' skull. Barnes testified that he was right handed and wore a ring on his right hand that was sharp. Barnes also conceded that after the fight he was not bleeding, had no visible injuries, and had cleaned Wells' blood off of the passenger window of Brown's truck.
Barnes testified that during the fight Wells reached into his pocket and Barnes, fearing that Wells had a gun, grabbed his gun (already loaded and ready to fire), and shot Wells. The medical examiner testified that Wells was shot twice in the left side of the torso. The crime scene analysis showed that Wells turned and staggered about forty feet before collapsing face down. The medical examiner further testified that a third, fatal shot was a contact shot--Barnes had run up behind Wells, either when he was staggering or when he was lying face down, and pressed the barrel of the gun against the back of his head as he fired. It is not disputed that Wells was unarmed.
Barnes took the cash from Wells' body and returned to the pickup truck. He told Brown, who later testified that he had not seen the shots fired because he had "froze up," that "we're both involved in this." The two men drove to Brown's trailer, picked up Brown's wife, Tonya, and fled to North Carolina. Before they left Georgia, they stopped at a Red Lobster for dinner and at a pawn shop where Barnes bought a Bersa .380 pistol. They paid for the dinner and the gun with the cash Barnes had taken from Wells. Tonya Brown rented an apartment in North Carolina and the two men stayed there for almost a week until the police arrived and arrested Tim Brown. The murder weapon, the Davis Industries .380 licensed to Barnes, was found in Brown's truck.
The police arrested Barnes in Young Harris, Georgia, where he had gone to visit a relative. He had the Bersa .380 pistol loaded and ready to fire in his coat pocket. In an interview with police, Barnes volunteered that he had shot Wells in self-defense. At trial he also stated that there was no specific plan to rob Wells, the money having been taken as an afterthought, but conceded that they had talked about robbing him before the day of the killing. Brown pled guilty to felony murder and testified for the state at Barnes' trial.
1. Viewed most favorably to the verdict, we determine that the evidence introduced at trial was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Barnes was guilty of the crimes for which he was convicted. 3
2. Barnes claims that the trial court erred by not transferring venue due to prejudicial pretrial publicity. A trial court must order a change of venue in a death penalty case when a defendant can make a "substantive showing of the likelihood of prejudice by reason of extensive publicity." 4 To justify a change of venue, a defendant must show that the trial setting was inherently prejudicial as a result of pretrial publicity or show actual bias on the part of individual jurors. 5
In order to determine if the trial setting was inherently prejudicial, appellate courts will consider the size of the community, the extent of media coverage, and the nature of the media coverage, especially if the coverage was inaccurate or inflammatory. 6 Newton County, according to Barnes' brief, has a population of 41,080. There were only eight articles published in three separate local newspapers about the murder and the upcoming trial of Barnes. Three of the articles were published in February and March 1992, fifteen months before trial, and dealt with the fact that a murder had taken place, that the victim was a former minister, and that Barnes and Brown had been arrested for the crime. Two later articles were summary articles listing pending murder trials, and the Barnes trial was only one of several cases mentioned. Barnes complains the most about an article that appeared in the Covington News a week before trial where the DA said that the Barnes trial was a "serious case," that his office was seeking the death penalty, and that the co-defendant had pled guilty and would testify. The DA also said that Barnes was the "triggerman," and the article mentioned some previously reported details about the crime, such as the victim being a former minister. The media coverage, eight articles in three different newspapers over a fifteen month period, was not extensive. Nor was it inflammatory or inaccurate--in fact, much of the information, such as Barnes being the "triggerman," was conceded by Barnes at trial as part of his justification defense. 7 Since the publicity was not extensive nor reflective of an atmosphere of hostility, 8 we do not find that the trial setting was inherently prejudicial.
The individual voir dire responses do not show actual bias on the part of the jurors. In order to show actual juror bias, Barnes must demonstrate that a high percentage of jurors had actual knowledge or had formed opinions about the case based on what they had seen or heard, or that there was a relatively high excusal rate. 9 Approximately 2/3 of the venire had heard about the case, but individual voir dire revealed that most of these jurors could not remember details about the crime and that few had formed an opinion about Barnes' guilt. Only 5 out of 74 jurors (about 7%) were excused for cause because they had formed a fixed opinion due to pretrial publicity. 10 The trial court did not err in denying Barnes' motion for a change of venue.
3. Barnes claims that the trial court erroneously denied his motion to suppress $600 in cash and a cartridge box seized from the bedroom that he had been using in Tonya Brown's apartment. The cartridge box and cash were not introduced into evidence at trial so this argument is moot.
4. Barnes complains that the state was unable to produce Tonya Brown's "consent to search" form and that any items seized pursuant to her consent should therefore be suppressed. As discussed in division 3, the state never introduced into evidence the items seized from Barnes' bedroom so any argument with regard to these items is moot. The gun seized from Brown's pick-up truck was introduced at trial, but Barnes had no reasonable expectation of privacy in his accomplice's truck and therefore lacks standing to challenge this search. 11
5. Barnes claims that Judge Sorrells, the trial judge, was biased against him and the rest of the Barnes family. Before trial, Barnes brought a motion to recuse Judge Sorrells. A recusal hearing was held, and the judge presiding over that hearing determined that the evidence would not cause a reasonable person to question the impartiality of Judge Sorrells. 12 We have examined the record, including the transcript of the recusal hearing, and conclude that this ruling was not error.
6. The state used seven of its ten peremptory strikes to remove African-Americans from the jury, Barnes objected under Batson v. Kentucky, 13 and the trial court ruled that the state had not exercised its strikes in a discriminatory manner. There were 16 African-Americans on the 54 juror panel from which the jury and alternate jurors were selected....
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