Berry v. State
| Decision Date | 06 October 1997 |
| Docket Number | No. S97A0598,S97A0598 |
| Citation | 268 Ga. 437,490 S.E.2d 389 |
| Parties | , 97 FCDR 3700 BERRY v. The STATE. |
| Court | Georgia Supreme Court |
Michael R. Hauptman, Cathy Morris Alterman, Alterman & Associates, Atlanta, for appellant.
Paul L. Howard, District Attorney, Carl P. Greenberg, Assistant District Attorney, Thurbert E. Baker, Attorney General, Deborah L. Gale, Assistant Attorney General, for appellee.
Rondelrick Berry was convicted of malice murder in the shooting death of Craig Glover. 1 On appeal, Berry challenges the sufficiency of the evidence, and asserts that the trial court abused its discretion in denying his gender-based challenges to the jury selection process and in allowing the testimony of a State's witness whose name did not appear on the list of witnesses provided to the defense. Finding no error, we affirm.
1. Berry contends that there was no credible evidence to support the verdict because two of the State's witnesses, Michael Clark and William Lowe, who initially identified Berry as the perpetrator, recanted their testimony at trial.
Craig Glover was shot and killed while sitting in the driver's seat of his car, as a result of two gunshot wounds to the abdomen fired from a .9 millimeter pistol.
Prior to trial, eyewitness Michael Clark was interviewed by investigating officers and his six-page statement was transcribed. Clark reviewed and signed the document, attesting to its truthfulness and voluntariness. In that statement, Clark told police that he observed Glover alone in a blue car on Daniel Street at midnight. Berry approached Glover's car, and after a brief exchange, Glover declined Berry's offer to sell drugs, stating, "every time I come up this street I don't have to buy dope." Berry accused Glover of "trying to get smart" with him, and then Berry reached into some nearby bushes, withdrew a .9 millimeter pistol, and fired three or four shots from close range into the driver's side window of Glover's car. Berry ran past Clark, retrieved a packet of drugs from the bushes, and left the scene. Clark told the officers that two of Berry's friends also witnessed the shooting and they called out to Berry, "why did you shoot that man--stop before you kill him." Clark recognized the murder weapon as belonging to Berry. When subpoenaed for trial, Clark advised an agent of the prosecution that everything he had to say was contained in the statement given to police.
At trial, Clark testified that he had fabricated the entire statement. He did admit, however, that gunshots had been fired at him after he gave his statement to police and that he was afraid to be involved in the case. Clark's fears were confirmed by a police officer who testified that Clark informed him prior to trial that he had been shot at and that he feared retaliation for his testimony.
A second eyewitness, William Lowe, had also given a signed statement to police unequivocally identifying Berry as the shooter. He later testified at a hearing in juvenile court where he again identified Berry as the perpetrator. At trial, Lowe described the events leading up to the shooting in a manner consistent with his prior statements, but when asked to identify the perpetrator, he responded, "I'm not sure who he was." This testimony was rebutted by another officer, who likewise stated that Lowe had recanted due to fear of retaliation.
"[A] prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes." Gibbons v. State, 248 Ga. 858, 862, 286 S.E.2d 717 (1982). See also Brown v. State, 175 Ga.App. 246(1), 333 S.E.2d 124 (1985). Thus, the investigative statements given by Clark and Lowe constituted substantive evidence of Berry's guilt by two eyewitnesses, despite their subsequent recantation or equivocation. Watkins v. State, 183 Ga.App. 778(1), 360 S.E.2d 47 (1987). It is within the province of the jury to resolve conflicts in trial testimony and assess the credibility of the witnesses. Willis v. State, 263 Ga. 597, 598, 436 S.E.2d 204 (1993). The jury, which was properly instructed on impeachment and credibility of witnesses, chose to believe the witnesses' pre-trial statements and to reject their testimony at trial. The evidence was sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), to enable a rational trier of fact to find Berry guilty beyond a reasonable doubt of malice murder.
2. Berry asserts that the prosecution improperly exercised five peremptory strikes against male members of the jury pool. See J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (); Tedder v. State, 265 Ga. 900(2), 463 S.E.2d 697 (1995). "[A]ny claim under Batson should be raised prior to the time the jurors selected to try the case are sworn." State v. Sparks, 257 Ga. 97, 98, 355 S.E.2d 658 (1987). This is to "allow the trial court to determine if there has been a violation of the defendant's constitutional rights in the jury selection process and, if so, to remedy that violation before the jurors are sworn." Greene v. State, 260 Ga. 472, 473(1), 396 S.E.2d 901 (1990). The trial court recognized that the challenge, made after the jury was sworn and had exited the courtroom, was untimely. Nevertheless, out of caution, the court required the prosecution to state its reasons for the exclusion of the five male jurors.
The first juror was struck because the prosecution believed he may have too closely identified with the defendant--he had four children in the same age category as the defendant and did volunteer work with young men who were also of the same age. Three jurors emphatically stated that they did not want to be involved in the case--two had difficulty with the fact that it was a murder prosecution and the other stated he had moral and religious convictions which prevented him from sitting in judgment of others and impaired his ability to deliberate with other jurors. The fifth juror stated that he had doubts about whether he could overcome his negative feelings concerning cocaine and cocaine users, and his demeanor indicated that he was agitated about the length of the jury selection process. Each strike was sufficiently...
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