Berry v. State

• Decision Date: 03 February 1997
• Docket Number: No. S96A1422,S96A1422
• Citation: 480 S.E.2d 32,267 Ga. 476
• Parties: , 97 FCDR 372 BERRY v. The STATE.
• Court: Georgia Supreme Court

Page 32

480 S.E.2d 32

267 Ga. 476, 97 FCDR 372

BERRY v. The STATE.

No. S96A1422.

Supreme Court of Georgia.

Feb. 3, 1997.

Jeffery Lyn Ertel, Federal Defenders Program, Inc., Atlanta, for Berry.

Lewis R. Slaton, Dist. Atty., Michael J. Bowers, Atty. Gen., Christopher S. Brasher, Asst. Atty. Gen., Department of Law, Henry M. Newkirk, Asst. Dist. Atty., Fulton County District Attorney's Office, Kirby Clements, Jr., Asst. Dist. Atty., Atlanta, for State.

HINES, Justice.

William Herman Berry engaged in a "shoot-out" with Osceola Kelly on an Atlanta public housing complex playground. It resulted in the fatal shooting of thirteen-year-old Aisha Heard and the wounding of thirteen-year-old Jamina Bolston and co-defendant Kelly. After a joint jury trial with Kelly, Berry was found guilty of the malice murder, felony murder, and aggravated assault of Heard, the aggravated assaults of Bolston and Kelly, and possession of a firearm by a first offender probationer. Following the denial of his motion for new trial, Berry appeals his convictions. He challenges jury strikes and the court's instruction to the jury, and urges prejudice from numerous instances of alleged ineffective assistance of trial counsel. We affirm. ¹

1. The evidence, viewed in favor of the verdicts, established that Berry and Kelly had a history of conflict with each other. Berry claimed that in a prior incident Kelly had stolen money and drugs from him, and the two men had "fighting words" three days before the incident on trial. Both men were armed when they confronted each other on the evening of September 10, 1993, and they exchanged gunfire. Berry shot the children, Heard and Bolston, after Kelly grabbed them and used them as shields during the gunfight.

The evidence was sufficient for a rational trier of fact to find Berry guilty beyond a reasonable doubt of the crimes for which he was charged and convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). ²

2. Berry complains that the trial court erred by allowing the State extra peremptory strikes when selecting the alternate juror in contravention of OCGA § 15-12-165. He claims harm in that the alternate served on the jury and allegedly was "predisposed to convict."

OCGA § 15-12-165, in conjunction with OCGA § 17-8-4, addresses the number of peremptory challenges to be afforded the State and multiple defendants in the selection of the sitting jurors in the trial of an indicted crime. ³ See Henry v. State, 256 Ga. 313, 348 S.E.2d 640 (1986). The selection of alternate jurors is governed by the provisions of OCGA § 15-12-169. Whether or not this statutory provision was contravened is unclear because the record fails to disclose with certainty how many strikes were available in total to the defendants or to the State in selection of the alternate. ⁴ Regardless, Berry fails to demonstrate harm. "The exercise of peremptory strikes has long been recognized as a procedure created to assist litigants in obtaining a fair and impartial jury and not an independent substantive right. The substantive right involved is the right to an impartial jury and peremptory strikes are merely one possible procedure that can be used to obtain such a jury. [Cits.]" Barner v. State, 263 Ga. 365, 367(4), 434 S.E.2d 484 (1993). The record wholly fails to support Berry's claim of denial of an impartial forum, that is, that the alternate had a predisposition for conviction.

3. In five separate enumerations of error, Berry challenges portions of the court's jury charge concerning the defense of accident. ⁵ He claims that the cited statements erroneously equated accident with criminal intent, impermissibly shifted the burden of proof, constituted an impermissible comment on the evidence, were confusing, and effectively precluded consideration of the defense of accident. The challenge fails.

In general, "either accident or self defense will be involved in a case, but not both." Turner v. State, 262 Ga. 359, 360(2)(b), 418 S.E.2d 52 (1992). Berry testified that he fired his weapon to defend himself from Kelly and to scare him off. Such an intentional firing does not invoke the legal defense of accident. See Scott v. State, 261 Ga. 611, 409 S.E.2d 511 (1991); Duke v. State, 256 Ga. 671, 352 S.E.2d 561 (1987). Compare Turner, supra. Nor is it raised by the circumstance that Berry may not have intended to shoot either young girl because the doctrine of transferred intent applies. McMichen v. State, 265 Ga. 598, 610(20), 458 S.E.2d 833 (1995). Inasmuch as the evidence presented on Berry's behalf failed to raise the defense of accident, the court was not required to instruct on it and its doing so at the defendant's request was gratuitous.

Reviewing the substance of the court's instruction on accident does not give merit to Berry's challenge. This Court must assess it in the context of the entire charge and not from isolated excerpts. See Smith v. State, 253 Ga. 476, 477(2), 322 S.E.2d 58 (1984). While it appears that the trial court made slips of the tongue regarding accident in a portion of its instruction on intent, the charge taken as a whole did not equate the defense with criminal intent. Nor was the instruction on accident confusing and burden shifting. The trial court charged the defense in the language of the statute and instructed the jury on the presumption of innocence and the State's burden of proof beyond a reasonable doubt. Williams v. State, 257 Ga. 186, 187(2), 356 S.E.2d 872 (1987); Lofton v. State, 237 Ga. 275, 227 S.E.2d 327 (1976). Finally, the court's informing the jury that the legal defense of accident did not encompass the deliberate aiming and firing of a weapon was not an impermissible comment on the evidence but rather correct statements regarding the boundaries of the defense. See Scott v. State and Duke v. State, supra.

4. Berry alleges numerous instances of trial counsel's ineffective assistance and asserts that the cumulative effect "rendered the trial meaningless and resulted in a complete and total breakdown of the adversarial process."

To be successful with a claim of ineffectiveness of trial counsel, a defendant must demonstrate that his attorney's performance was deficient and that the deficiency prejudiced the defense. To accomplish this, the defendant must overcome the strong presumption that his attorney's performance fell within a wide range of reasonable professional conduct and that the attorney's decisions were made in the exercise of reasonable professional judgment. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case. Roland v. State, 266 Ga. 545, 546(2), 468 S.E.2d 378 (1996), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Smith v. Francis, 253 Ga. 782, 783, 325 S.E.2d 362 (1985). Berry fails to succeed with his claims of ineffectiveness and a breakdown of the trial proceeding.

a) Berry contends that counsel was ineffective for failing to object to the State being afforded extra peremptory strikes and for failing to ensure that Berry was present at an unrecorded bench conference in which he asserts counsel acquiesced to such extra strikes. But as previously discussed, Berry has failed to demonstrate any harm from the procedure employed in selecting the alternate. See Division 2, supra.

b) Over the State's hearsay objection, Berry was allowed to testify on direct that prior to the shooting, he "started hearing the rumors about [a person] said [Kelly] was going to kill me...." Prior to cross-examination of Berry, the court instructed the jury that it had allowed Berry to testify about hearing of the threats because it was part of Berry's defense. Berry maintains that his counsel was ineffective for failing to object to the instruction because it was tantamount to a judicial comment on the sufficiency of the evidence in violation of OCGA § 17-8-57.

The court's statements did not violate the statutory prohibition. The court was not expressing an opinion about the credibility of Berry's defense, but rather was attempting to instruct the jury that any hearsay was not probative evidence of the alleged threats by Kelly.

c) Berry claims that his counsel was ineffective for failing to object to the court's jury charge on impeachment of a witness, ⁶ which charge he contends was error under James v. State, 180 Ga.App. 7, 348 S.E.2d 502 (1986). The claim fails. The problem highlighted in James is language in the charge, which in isolation, appears to usurp the jury's right to determine for itself the credibility of a witness, even if that witness has been successfully impeached. However, as was discussed in James, such an instruction on impeachment must be read in conjunction with the entire jury instruction and provides no cause for reversal if the court's instruction in its entirety makes it plain that the jury is the sole judge of witness credibility. Such was the case here. Both before and after the language at issue, the court clearly apprised the jury of the fact that it was the exclusive judge of the credibility of the witnesses.

d) Berry contends that his counsel was ineffective for failing to object to the court's instruction that should the jury believe from the evidence as a whole that the defendant is guilty beyond a reasonable doubt, "it would be their duty to convict." While it is clearly the better practice to inform the jury that it "would be authorized to find the defendant guilty," the charge as given may fail to provide any basis for reversal. Sutton v. State, 262 Ga. 181(2), 415 S.E.2d 627 (1992). The single objectionable phrase in the context of the whole charge did not misdirect the jury concerning its lawful obligations. Lemay v. State, 264 Ga. 263, 266(4), 443 S.E.2d 274 (1994).

e) Berry claims that his counsel was ineffective for not objecting to the court's joint references to him and co-defendant Kelly throughout its charge...