Cade v. the State., S11A1059.

• Decision Date: 03 October 2011
• Docket Number: No. S11A1059.,S11A1059.
• Parties: CADEv.The STATE.
• Court: Georgia Supreme Court

289 Ga. 805

716 S.E.2d 196

11 FCDR 3047

CADE

v.The STATE.

No. S11A1059.

Supreme Court of Georgia.

Oct. 3, 2011.

Herbert Adams, Jr., Jonesboro, for appellant.Robert D. James, Jr., Dist. Atty., Deborah D. Wellborn, Asst. Dist. Atty., Samuel S. Olens, Atty. Gen., Paula Khristian Smith, Senior Asst. Atty. Gen., Sara Kaur Sahni, Asst. Atty. Gen., for appellee.CARLEY, Presiding Justice.

After a jury trial, Appellant Shannon Cade was found guilty of the malice and felony murder of Brittney Wells, aggravated assault, and concealing the death of another. The felony murder verdict was vacated by operation of law, and the trial court merged the aggravated assault count into the malice murder. The trial court sentenced Appellant to life imprisonment for malice murder and to a consecutive ten-year term for concealing the death of another. A motion for new trial was denied, and he appeals.^*

1. Construed most strongly in support of the verdicts, the evidence shows that the 17–year–old victim dated Appellant, who was the same age. On January 14, 2009, the victim was visiting Appellant at his mother's apartment. Appellant's mother was not at home, but Ha Vuong (Ha) was present. He was 14 years old, lived in the same apartment complex, and frequently visited Appellant's apartment. Ha testified that Appellant told him that the victim threatened to charge them with rape. Appellant then choked the victim until she stopped moving. With some aid from Ha, Appellant removed the victim's clothes, wiped her body down with Pine–Sol to remove fingerprints, tied a plastic bag over her head, wrapped her in a blanket, carried her outside, and placed her in the apartment complex's dumpster.

Later that night, Appellant and Ha informed Thaddeus Cade (Cade) about choking the victim to death. Cade, who is Appellant's cousin and also lives in the same apartment complex, checked the dumpster himself and called his sister, who immediately notified the police regarding the body in the dumpster. Appellant claimed that, before the victim's death, she charged at him with a knife. However, he had no defensive knife wounds, and police were unable to find a knife. Ha testified that the victim did not threaten Appellant with a knife, though she had one. The evidence was sufficient to authorize a rational trier of fact to find Appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); White v. State, 287 Ga. 713, 715–717(1)(b, c), 699 S.E.2d 291 (2010).

2. Appellant contends that the State failed to prove venue beyond a reasonable doubt, because, although one witness testified that the killing took place in the apartment at a certain address in DeKalb County, no witness testified that it occurred in Georgia. However, “ ‘[w]itnesses testifying to venue need not state that the county in which the incident occurred is in the State of Georgia. (Cit.)’ [Cit.]” Stevens v. State, 176 Ga.App. 583, 584(2), 336 S.E.2d 846 (1985). Appellant argues that in modern times there should not be a presumption in these circumstances that the crimes took place in this state. As we recently held, however, there is no reason to require explicit testimony that the county where the crime occurred is located in Georgia:

“The Court sat, and the trial was had in the County of [DeKalb], and the proof was that the crime was committed ... in the County of [DeKalb]. That the Court was sitting in the County of [DeKalb] and State of Georgia was a fact known to the Court from its own records and the public law. When therefore it was proven that the crime was committed in the County of [DeKalb], it was proven that it was committed in the County in which the Court entertained jurisdiction over it. Non constat that there is in Georgia any other County called [DeKalb]. There is no use in discussing a question like this. If such an exception were sustainable, it could be done alone by taking leave of common sense, and by yielding the solid virtue of judicial investigation to a distinction too subtle to command the least respect.” [Cits.] (Emphasis in original.)

Gresham v. State, 289 Ga. 103, 104(2), 709 S.E.2d 780 (2011). See also Walker v. State, 30 Ga.App. 275, 117 S.E. 822 (1923). Contrary to Appellant's further contention, there was evidence of the specific address and county where the dumpster was located. Testimony showed that the location of the dumpster was the same DeKalb County apartment complex where the murder took place. Moreover, the concealment of the victim's death began in the apartment. Thus, the State clearly met its burden of proving beyond a reasonable doubt that venue was properly in DeKalb County not only for the murder, but also for the crime of concealing the death of another. See Waldrip v. State, 267 Ga. 739, 749(13), 482 S.E.2d 299 (1997); James v. State, 274 Ga.App. 498, 500–501(2), 618 S.E.2d 133 (2005).

3. Appellant asserts that the trial court erred in failing to strike two prospective jurors for cause. However, defense counsel did not move to strike one of them, Ms. Saxon, for cause, and the trial court did not err by failing to excuse her sua sponte. Phillips v. State, 275 Ga. 595, 596(2), 571 S.E.2d 361 (2002); Whatley v. State, 270 Ga. 296, 297(2), 509 S.E.2d 45 (1998). Appellant's attorney did move to strike the other, Ms. Kriseman, because she appeared “emotional” when she informed the court that her best friend had been killed long ago by the serial killer Ted Bundy. Although she stated that she had struggled a little with the question of impartiality, she also stated that she thought she would be impartial and that she could make a determination of Appellant's guilt or innocence based on the evidence in the case and on the law as given by the trial court.

Whether to strike a juror for cause lies within the sound discretion of the trial court. [Cit.] For a juror to be excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence and the court's charge upon the evidence. [Cit.] A prospective juror's doubt as to his or her own impartiality does not demand as a matter of law that he or she be excused for cause. [Cit.] A conclusion on an issue of juror bias is based on findings of demeanor and credibility which are peculiarly in the trial court's province, and those findings are to be given deference. [Cit.]

Hyde v. State, 275 Ga. 693, 696(4), 572 S.E.2d 562 (2002) (where juror's friend had been killed 24 years earlier). “Nothing in [Ms. Kriseman's] answers indicated that [s]he held an opinion regarding [Appellant's] guilt or innocence....” Chandler v. State, 281 Ga. 712, 715(2), 642 S.E.2d 646 (2007) (where prospective juror's sister and estranged wife had been shot to death). See also Hyde v. State, supra.

After reviewing all of this juror's responses, we conclude that the trial court did not abuse its discretion in finding that she “would remain impartial despite her past experience and her honestly expressed concerns about the possible impact of that experience upon her deliberations. (Cit.)” [Cit.]

Roberts v. State, 276 Ga. 258, 259(2), 577 S.E.2d 580 (2003). See also Raheem v. State, 275 Ga. 87, 91(6), 560 S.E.2d 680 (2002) (where prospective juror's friend had been murdered), disapproved on other grounds, Patel v. State, 282 Ga. 412, 413(2), fn. 2, 651 S.E.2d 55 (2007).

4. Appellant urges that his trial counsel was ineffective during voir dire in failing to examine Ms. Saxon and Ms. Kriseman adequately and move to strike Ms. Saxon for cause.

“In order to prevail on a claim of ineffective assistance of counsel, a convicted defendant must show that counsel performed deficiently and that the deficient performance prejudiced the defendant such that a reasonable probability exists that, but for counsel's errors, the outcome of the trial would have been different.” [Cit.]

Higginbotham v. State, 287 Ga. 187, 190(5), 695 S.E.2d 210 (2010). “[O]n appellate review, ‘ “we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. (Cit.)” (Cit.)’ [Cit.]” Phillips v. State, 277 Ga. 161, 587 S.E.2d 45 (2003).

Ms. Saxon stated that she had certain feelings about domestic violence issues but that she could probably listen and decide the case as a fair and impartial juror. Furthermore, she did not respond when the trial court asked her jury panel whether anyone had formed an opinion regarding Appellant's guilt or innocence. Because the transcript of voir dire does not reveal that Ms. Saxon had a fixed and definite opinion as to the issue of guilt or that she would be unable to decide the case based on the evidence and the trial court's instructions, Appellant neither overcame the strong presumption that counsel's failure to seek Ms. Saxon's removal constituted reasonable professional assistance, nor could Appellant show how he was prejudiced by that failure. Higginbotham v. State, supra at 191(5)(a), 695 S.E.2d 210; Hargett v. State, 285 Ga. 82, 85(3)(b), 674 S.E.2d 261 (2009). “Since an effort to strike the juror would have been unsuccessful, the attorney was not deficient for failing to make the losing motion to do so. [Cits.]” Phillips v. State, supra at 162(a), 587 S.E.2d 45.

“The content of trial counsel's voir dire of the jury venire can be a matter of trial strategy. [Cit.]” Morgan v. State, 276 Ga. 72, 77(9), 575 S.E.2d 468 (2003). At the hearing on the motion for new trial, Appellant's trial counsel, who is an experienced criminal defense attorney, testified that she would listen to the prosecutor's questions before making the strategic decision of whether further questioning was in her client's best interest and that she would not do anything to pollute or taint...