Berry v. State

• Decision Date: 17 February 1997
• Docket Number: S96A1343,Nos. S96A1340,s. S96A1340
• Citation: 267 Ga. 605,481 S.E.2d 203
• Parties: , 97 FCDR 528 BERRY v. The STATE. MONROE v. The STATE.
• Court: Georgia Supreme Court

Page 203

481 S.E.2d 203

267 Ga. 605, 97 FCDR 528

BERRY v. The STATE.

MONROE v. The STATE.

Nos. S96A1340, S96A1343.

Supreme Court of Georgia.

Feb. 17, 1997.

Reconsideration Denied March 13, 1997.

Mitchell McKinley Shook, Salter & Shook, Vidalia, for Berry.

Thomas Joseph O'Donnell, Jr., Sandersville, for Monroe.

Michael J. Bowers, Atty. Gen., Atlanta, Richard A. Malone, Dist. Atty., Swainsboro, and Beth Attaway, Asst. Atty. Gen., Atlanta, for the State.

HINES, Justice.

Co-defendants Dedrick Berry and Terrell Monroe, along with three others, were charged with malice murder, felony murder while in the commission of armed robbery, and armed robbery in connection with the fatal shooting of store owner John C. Dixon. A jury found Berry and Monroe guilty of Dixon's felony murder and armed robbery and each was sentenced to life in prison. ¹ We affirm the convictions of both men.

1. Berry and Monroe contend entitlement to directed verdicts of acquittal. Each claims that there was no credible evidence that he had knowledge that an armed robbery would occur, and urges that his presence at the scene of the crimes is insufficient to convict. Witness credibility was a matter to be determined by the jury, ² and the evidence viewed in favor of the verdicts shows far more than the mere presence of both men.

The State presented evidence, including the inculpatory statements of the defendants, that prior to the crimes Berry had "cased out" the Dixons' store and believed it would be easy to rob because there were no cameras and few people. During the morning of January 16, 1995, Berry, Monroe, Tierrace Moore, Kiendel Tootle, and Delwin Berry drove around together for 45 minutes to an hour. The men were armed with a shotgun and discussed committing robbery at the store. Shortly thereafter, they arrived at the store and all went inside except for Moore. Everyone knew that the plan was to commit armed robbery. Berry nodded to Tootle to go ahead with the robbery, and Tootle pulled out the shotgun and told Dixon to "give it up." Dixon tried to run and Tootle shot him in the back of the neck. Berry, Monroe and Tootle rushed for the cash register. Dixon bled to death from the gunshot wound.

Berry and Monroe were not entitled to directed verdicts of acquittal as the evidence was sufficient to enable a rational trier of fact to find both men guilty beyond a reasonable doubt of felony murder while in the commission of armed robbery. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Berry and Monroe contend that the trial court erred in refusing to grant their motions for a change of venue. They urge that public outcry and publicity surrounding the case in the context of the "relatively small" community of Vidalia and Toombs County precluded their receiving a fair trial. On the contrary, the evidence supports the trial court's determination that defendants would be able to get a fair trial.

"The inquiry into a request for a change of venue is two pronged. First, the court must consider whether the atmosphere in the community is so inherently prejudicial due to pretrial publicity that the defendant cannot receive a fair trial in the community. Secondly, the court must consider whether the defendant cannot receive a fair trial due to the prejudice of individual jurors. [Cits.] ... Situations which are made inherently prejudicial by pretrial publicity are extremely rare. [Cit.]"

Lemley v. State, 258 Ga. 554, 555(4), 372 S.E.2d 421 (1988).

Berry and Monroe failed to show that the pretrial publicity, which largely occurred right after the murder, resulted in that rare situation of inherent prejudice so as to warrant a change of venue. As to the second part of the inquiry, Berry and Monroe were likewise unable to demonstrate that they could not receive a fair trial due to the prejudice of individual jurors. The record indicates that only one of fifty-one individuals was excused for cause, and that of the remaining members of the venire that indicated they had heard something about the case, few had any opinion or impression about it and all affirmed the ability to be fair and impartial and to render a decision based on the evidence at trial.

3. On September 13, 1995, Berry filed a motion to recuse the trial judge based on the allegations that the judge had manifested personal bias or prejudice against him as evidenced by a September 5, 1995, telephone conversation regarding the plea bargaining of co-defendant Tootle and a courtroom exchange during voir dire in which the judge "dressed down" Berry's counsel. Appended to the motion was an affidavit by Tootle's counsel regarding the alleged plea bargain conversation. ³ There was no supporting affidavit regarding the cited exchange during voir dire. The trial judge denied the motion after concluding that it was untimely and on the merits insufficient for recusal. Berry contends that the judge erred in failing to hold a hearing in the matter and in failing to recuse himself. Berry's complaints are unavailing.

Pretermitting the question of the timeliness of the motion, ⁴ in substance it failed. After being presented with a motion for recusal under USCR 25.1, the trial judge has the duty to determine whether, assuming the truth of the facts alleged, a reasonable person might conclude that the judge harbors bias, stemming from an extrajudicial source, which is of a nature and intensity as would interfere with the exercise of impartial judgment. Wellons v. State, 266 Ga. 77, 88(18), 463 S.E.2d 868 (1995). If the affidavit is found to be sufficient, then the matter is referred to another judge for a hearing. See USCR 25.3; State v. Fleming, 245 Ga. 700, 267 S.E.2d 207 (1980). Here, the trial judge properly considered the legal sufficiency of the facts set forth in the affidavit and correctly determined that even accepted as true, they did not support a charge of his bias sufficient to warrant recusal. Nor was there any showing that any opinion of the judge about Berry stemmed from anything other than the judge's participation in the trial proceedings. See Birt v. State, 256 Ga. 483, 485(4), 350 S.E.2d 241 (1986); Jones v. State, 247 Ga. 268, 271(4), 275 S.E.2d 67 (1981).

4. It was not error to deny Berry's challenge to the array of the traverse jury based on the claim of deficient racial composition in regard to African Americans. The record discloses that Berry completely failed to establish a prima facie case of jury discrimination. See Bowen v. State, 244 Ga. 495, 500(4), 260 S.E.2d 855 (1979). ⁵ Based upon figures from the voter registration office, Berry asserted that the African American population of Toombs County was 23.4 percent. Thus, he maintained that the absolute disparity ⁶ between the jury box and the number of African American jurors in the county was 5.6 percent. However, at the hearing in the matter, there was evidence that the jury pool was selected from the population at large in addition to the voter registration lists and that with African Americans comprising 20.6 percent of the population of Toombs County, the result was an absolute disparity of 2.1 percent. Such a disparity is insufficient to support an inference of purposeful discrimination. Cook v. State, 255 Ga. 565, 573(11), 340 S.E.2d 843 (1986).

5. The trial court did not err in denying Berry's challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The opponent of a strike has the burden to make out a prima facie case of purposeful discrimination by demonstrating that the totality of the relevant facts gave rise to an inference of discriminatory purpose. Once a prima facie case is established, the proponent of the strike must articulate a race neutral explanation for striking the jurors at issue. The explanation need not be persuasive or even plausible, but only one that does not deny equal protection. However, the ultimate burden of persuasion about the racial motivation rests with and never leaves the opponent of the strike. Whatley v. State, 266 Ga. 568, 569(3), 468 S.E.2d 751 (1996); Jackson v. State, 265 Ga. 897, 898(2), 463 S.E.2d 699 (1995), citing Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), rehearing denied, --- U.S. ----, 115 S.Ct. 2635, 132 L.Ed.2d 874 (1995). Here, the burden was not met. The trial court made no express ruling on whether or not Berry had established a prima facie case. Instead, it directly asked the State about its peremptory challenges to three African Americans. The State explained that it struck the first prospective juror because he had recently been the subject of investigation by the District Attorney's Office and probably harbored ill-feeling toward the prosecutor, and that it challenged the others because they were represented in other litigation by defense counsel. Such reasons were correctly found to be legitimate, neutral and non-racial, and in the absence of any further showing by Berry, fatal to his Batson claim. See Davis v. State, 263 Ga. 5, 7(10), 426 S.E.2d 844 (1993).

6. The trial court did not err in refusing to excuse a venireman for cause and in its questioning of the man. The venireman initially indicated that he knew the victim's family and had spoken with the victim's brother and that it would be difficult for him to put aside what he had learned from the brother. However, in order to disqualify a prospective juror on the basis that he has formed an opinion about the guilt or innocence of the defendant, when the prospective juror had formed the opinion based on hearsay rather than his having witnessed the crime or having heard testimony under oath, the opinion must be so fixed and definite that it would not be changed by the evidence or the charge of the court during the trial of the case. Waters v. State, 248 Ga. 355, 362(2), 283 S.E.2d 238 (1981). Therefore, the trial court properly continued to question the prospective juror to determine the strength of his...