Braithwaite v. State

• Decision Date: 12 November 2002
• Docket Number: No. S02A1148.,S02A1148.
• Citation: 572 S.E.2d 612,275 Ga. 884
• Parties: BRAITHWAITE v. The STATE.
• Court: Georgia Supreme Court

572 S.E.2d 612

275 Ga. 884

BRAITHWAITE v. The STATE.

No. S02A1148.

Supreme Court of Georgia.

November 12, 2002.

Reconsideration Denied December 13, 2002.

Charles H. Frier, Atlanta, for appellant.

Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Christopher M. Quinn, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Tammie J. Philbrick, Asst. Atty. Gen., for appellee. FLETCHER, Chief Justice.

A jury convicted Damion Braithwaite for his role in the shooting deaths of Chauncey Fleming, Eddie McMillian, and Nekeba Turner. Although the prosecutor violated the prohibition against making "golden rule" arguments in his closing argument, Braithwaite's trial counsel made the strategic decision not to object and draw attention to this portion of the argument. Because Braithwaite is unable to show that this strategy denied him constitutionally effective legal representation and his other enumerations are without merit, we affirm.¹

Taken in the light most favorable to the jury's verdict, the evidence at trial showed that Braithwaite and his four accomplices— Dukar Watson,² Emmanuel Lord, Anthony Davis, and James Ward—agreed to rob Fleming and kill him with his own gun. Each accomplice was to shoot Fleming so that they would all be culpable and, therefore, less likely to incriminate one another. Once at Fleming's apartment, they smoked marijuana and watched television. Braithwaite found Fleming's gun, and, upon his signal, the five men subdued Fleming and the apartment's two other occupants, McMillian and Turner, who were sleeping in another room. Braithwaite killed Turner by shooting her in the head. Some of the remaining men took turns shooting and killing Fleming and McMillian.

Approximately twenty months later, Braithwaite's wife, Hafitha Miller, informed police that Braithwaite had told her about the murders while holding her hostage. Several months later, Braithwaite was arrested in New York. He gave police a false name, refused to be fingerprinted, and gnawed on his fingertips. After being released in New York, he was arrested in North Carolina. The North Carolina police were able to fingerprint him only after obtaining a court order that allowed them to sedate Braithwaite. He was subsequently extradited to Georgia to stand trial for these crimes.

1. Braithwaite's contention that the testimony of his accomplices and his ex-wife was unreliable was an issue for the jury to decide.³ The accomplice testimony was corroborated, and the evidence at trial was sufficient to enable a rational trier of fact to find Braithwaite guilty beyond a reasonable doubt of the crimes for which he was convicted.⁴

2. (a) Braithwaite asserts that the State violated the "golden rule" prohibition during its closing arguments. However, he failed to object contemporaneously to this portion of the State's closing argument and, therefore, he has waived that enumeration of error.⁵

(b) Braithwaite also contends that his trial counsel was ineffective in failing to object to the State's golden rule argument. To prevail on a claim of ineffective assistance of trial counsel, Braithwaite bears the burden of showing that counsel was deficient and that, but for the deficiency, there was a reasonable probability that the outcome of his trial would have been different.⁶ A failure to make either of these showings is fatal to an ineffectiveness claim.⁷ Furthermore, there is a strong presumption that trial counsel provided effective representation,⁸ and we will not use hindsight to judge counsel's reasonable trial strategy and tactics.⁹

We begin our analysis by examining whether the State violated the proscription against "golden rule" arguments. A "golden rule" argument is one that, regardless of the nomenclature used, asks the jurors to place themselves in a victim's position.¹⁰ We have repeatedly held that a golden rule argument is improper, and we conclude that the State violated this prohibition in its closing argument.¹¹

The next question is whether Braithwaite's trial counsel was deficient in not objecting to this improper argument. As trial counsel testified at the motion for new trial hearing, he recognized the impropriety of the State's argument, but decided that objecting and drawing attention to the argument would be worse for his client than ignoring it and hoping the jury would too. With the benefit of hindsight, one can always argue that trial counsel's failure to object was something that no reasonable trial lawyer would do. Our task, however, is to determine whether, in the throes of closing argument, no reasonable attorney, listening to the inflection of the speaker's voice and judging the jurors' reactions, would choose to remain silent instead of objecting and calling attention to the improper argument. Here, Braithwaite's attorney reasonably chose silence, and we will not use hindsight to second-guess that decision on appeal.¹²

Because the dissent takes issue with our assessment of the reasonableness of the trial attorney's strategic decision, we also will consider the prejudice prong of Braithwaite's ineffective assistance of counsel claim: whether Braithwaite has shown that, but for counsel's failure to object to the State's improper golden rule argument, there was a reasonable probability that Braithwaite would not have been convicted.¹³ Braithwaite's principal defense was that he was not present, but the evidence of his presence at the crime scene was overwhelming. Furthermore, defense counsel, whose closing argument followed the State's argument, acknowledged the tragedy that had occurred and the heinousness of the crimes, but refocused the jury's attention on the specific evidence presented. Therefore, we conclude that Braithwaite has failed to demonstrate that the failure to object prejudiced his defense because trial counsel sought to mitigate the prejudice arising from the argument and the evidence against Braithwaite was overwhelming.

3. The trial court did not err by permitting appellant's ex-wife to testify without first informing her on the record of the marital privilege. OCGA § 24-9-23 states that one spouse is competent to testify against the other, but cannot be compelled to do so. The testifying spouse is the one who may decide whether to rely on the marital privilege, not the non-testifying defendant.¹⁴ Appellant's ex-wife stated at trial that she testified voluntarily, and absent evidence to the contrary, we presume that she did so after waiving the marital privilege.¹⁵ For the same reason, Braithwaite's trial counsel's failure to ask Braithwaite's wife whether she wished to waive the marital privilege did not constitute deficient performance.

4. In addition to the grounds discussed above, Braithwaite claims that his trial counsel was constitutionally ineffective for two other reasons. Neither contention has any merit. First, counsel pursued the reasonable trial strategy of not objecting to the ex-wife's testimony regarding crimes that Braithwaite committed against her and, instead, attempted to show during cross-examination that her testimony was false. Second, we agree with the trial court that trial counsel conducted sufficient pre-trial investigation and adequately cross-examined police investigators regarding other individuals suspected of committing these crimes.

5. Ward testified at trial that his involvement in the crimes was minimal, and Braithwaite's involvement was substantial. Braithwaite contends that the prosecutor suborned perjury from Ward because, during closing arguments, the prosecutor stated that "half the stuff out of [Ward's] mouth—I don't think he could tell the truth if he wanted to." Having reviewed Ward's testimony and closing arguments, we conclude that the prosecutor was not saying that he had offered perjured testimony. Rather, his statement was intended to comment on (1) Ward's testimony that, even though he pled guilty to robbery by intimidation, he did not commit that crime, and (2) the inconsistencies between Ward's various statements to the police and prosecutors, both of which Braithwaite referenced when cross-examining Ward. Accordingly, this enumeration is without merit. 6. The State's argument that Braithwaite had changed his appearance before trial to present a more favorable appearance to the jury was consistent with the evidence. Therefore, it was not improper.¹⁶

7. The trial court erred by instructing the jury that it could presume intent to kill from the use of a deadly weapon.¹⁷ Although intent was not specifically at issue because Braithwaite's defense was that he was not at the crime scene, intent is still one of the elements that the State must prove beyond a reasonable doubt in a malice murder prosecution. Here, the evidence was overwhelming that whoever committed the murders committed them with malice. Once the jury determined that Braithwaite participated in the murders, there was overwhelming evidence that the killings were done with malice. The improper Harris charge was harmless because there is a high probability that the improper charge did not contribute to the jury's verdict.¹⁸

8. Braithwaite contends that he could not be convicted of three counts of possessing a firearm during a crime because the same firearm was used to commit all three murders. Even though OCGA § 16-11-106 must be construed strictly against the State because it is a criminal statute,¹⁹ the plain language of the statute demonstrates that Braithwaite was properly convicted of possessing a firearm during each of the three murders for which he was convicted.

The relevant portion of OCGA § 16-11-106(b) defines the crime of possession of a firearm during a felony as follows:

Any person who shall have on ... his or her person a firearm or knife having a blade of three or more inches ... during the commission of, or the attempt to commit, any crime against or involving the person of another [among other enumerated crimes] ... and which

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