Cain v. State
| Decision Date | 10 November 2003 |
| Docket Number | No. S03A1028.,S03A1028. |
| Citation | 588 S.E.2d 707,277 Ga. 309 |
| Parties | CAIN v. The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
R. Gary Spencer, Atlanta, for appellant.
Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Adam M. Hames, Asst. Atty. Gen., for appellee.
Marvin Cain was indicted for armed robbery, hijacking a motor vehicle, theft by receiving stolen property, malice murder, and possession of a firearm by a convicted felon.1 On Cain's motion, the murder charge was severed from the other charges. Two trials before two different juries were conducted, one for the robbery-related counts of the indictment, the second for the murder count. Convicted of all the charged offenses except theft by receiving stolen property, Cain raises issues on appeal relating to both the murder conviction and the robbery-related convictions.
1. This Court has a duty to consider the question of its jurisdiction in any case in which doubt arises concerning the existence of such jurisdiction. Rowland v. State, 264 Ga. 872(1), 452 S.E.2d 756 (1995). In the present case, the Attorney General has suggested that this Court is without jurisdiction to consider the appeal from the robbery-related convictions because they were tried separately from the murder charge. We agree. Although the charges involved here were brought in a single indictment, the murder charge was severed and separate juries were impaneled and separate trials were held. In Jones v. State, 246 Ga. 109(1), 269 S.E.2d 6 (1980), where charges of murder and aggravated assault were tried separately but appealed together, we held that the appeal from the aggravated assault conviction was not properly before this Court. Because the present case is indistinguishable from Jones with regard to the effect on appellate jurisdiction of trying charges separately, we reach the same conclusion, that this Court lacks jurisdiction over an appeal from the robbery-related offenses. Accordingly, the appeal from those offenses is hereby transferred to the Court of Appeals.
2. The evidence regarding the murder charge showed that the 16-year-old victim, wearing her work uniform, left her job at a restaurant on the morning of September 28, 1996, but never arrived home. Her body was found on October 4, 1996, the day Cain was arrested. Cain's sister's boyfriend, at whose apartment Cain stayed briefly during the time around the victim's death, testified that he came home one night at the end of September and saw a woman lying on the couch with Cain. Starting on the day after the victim disappeared and continuing to the day of his arrest, Cain told various persons that he had killed a young woman and put her body in a closet in an apartment. He showed one person a body in the trunk of the car he was driving and subsequently took two others to an apartment where they saw a dead woman. After one of those persons reported the death to the police, the victim's body was recovered from the apartment where Cain had exhibited the body. The evidence adduced at trial and summarized here was sufficient to authorize a rational trier of fact to find Cain guilty beyond a reasonable doubt of murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
3. After the State rested its case, Cain moved for a continuance until the next morning in order to produce two witnesses. He enumerates as error the trial court's denial of a continuance. Since neither witness had been subpoenaed by the defense and counsel was unable to say where the witnesses were, we see no abuse of discretion in the denial of a continuance. Spencer v. State, 260 Ga. 640(16), 398 S.E.2d 179 (1990).
4. Finally, Cain contends trial counsel was ineffective in failing to subpoena one of the witnesses whose attendance he could not procure. On motion for new trial, the trial court rejected the claim of ineffectiveness, finding that counsel's decision not to subpoena the witness may have been tactical and that there was no prejudice because the evidence so overwhelmingly established Cain's guilt that the missing witness's testimony would not have affected the outcome.
Since an appellant claiming ineffective assistance of counsel must show both deficient performance and actual prejudice...
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