Caldwell v. State
| Decision Date | 20 November 2000 |
| Docket Number | No. A00A1025.,A00A1025. |
| Citation | 542 S.E.2d 564,247 Ga. App. 191 |
| Parties | CALDWELL v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Angela B. Clarke, Steven E. Phillips, Atlanta, for appellant.
Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee. ELDRIDGE, Judge.
Following a bifurcated trial, a Fulton County jury found William Caldwell guilty of armed robbery and possession of a firearm by a convicted felon. Finding no error, we affirm his convictions.
Viewed in a light to support the jury's verdict,1 the record shows that the manager of the Church's Fried Chicken restaurant at 2558 Martin Luther King, Jr. Drive, Rose Abdel-Karim, was locking up the restaurant after closing. The cook, Calvin Fletcher, and his girlfriend were also on the scene; Abdel-Karim had asked them to remain until she had finished closing and had gotten to her car. As she was locking the door, a man with a gun came around the restaurant. He approached manager Abdel-Karim; grabbed her purse with the words, "give me the purse, bitch"; and ran into the woods behind the restaurant. Shortly, after the robbery, Caldwell was apprehended as fitting the description given by the witnesses. On the scene, he was identified by all three witnesses as the armed robber. Caldwell then told the arresting officer that he committed the armed robbery to get money for back child support. He led the officer to the victim's purse, which had been discarded in the woods behind the store; a trail of the victim's credit cards led directly to the weapon, which had been discarded six feet from the purse. Following the jury's verdict on the armed robbery count of the indictment, a certified copy of Caldwell's previous 1983 conviction for armed robbery was put before the jury to support the indicted charge of possession of a firearm by a convicted felon.
1. Caldwell claims the trial court's curative instructions, given after defense counsel questioned a State's witness about his alleged participation in the armed robbery, constituted an improper statement of opinion as proscribed by OCGA § 17-8-57. The resolution of this issue requires consideration of the following factual background:
Caldwell's defense was that "someone else" committed the armed robbery and that he was misidentified by the State's witnesses. However, defense counsel chose to go further and suggest to the jury that the actual perpetrator was a friend of one of the State's witnesses, the cook Fletcher; that Fletcher conspired with this friend to rob the Church's Chicken restaurant; that the friend showed up at Church's too late to accomplish the robbery of the restaurant and thus opted, instead, to rob manager Abdel-Karim; and that, because the robbery of the restaurant did not go as planned, Fletcher was somehow forced to pin the robbery of the manager on Caldwell:
The prosecutor objected to this line of questioning and argued that defense counsel was improperly attempting to cast suspicion on Fletcher based on foundationless questions. By way of foundation, defense counsel asserted that Fletcher had a prior, nine-year-old conviction for armed robbery and that he was reluctant to testify at trial. Counsel argued that such "proof" showed a good faith basis for a conspiracy theory.
A defendant is entitled to introduce relevant and admissible testimony tending to show that another person committed the crime for which the defendant is tried. However, the proffered evidence must raise a reasonable inference of the defendant's innocence, and must show that the other person has recently committed a crime of the same or similar nature. Evidence which can have no other effect than to cast a bare suspicion on another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible.2
Here, not only did Caldwell fail to proffer evidence which raised a reasonable inference of his innocence, especially in light of his confession to the offense, but there was no evidence that Fletcher ever committed the type of crime Caldwell accused him of, i.e., conspiracy to commit armed robbery. In fact, Caldwell introduced no "evidence" on this issue at all; the jury was to draw inferences solely as a result of defense counsel's questions. Without factual basis and through unsupported questions, alone, Caldwell sought to raise a conjectural inference as to the commission of the crime by some unknown third person in conspiracy with Fletcher. Defense counsel's questioning was tantamount to testifying and was not admissible. And that is what the trial court found pursuant to the State's evidentiary objection. The trial court stated:
She [defense counsel] had a wide latitude to cross-examine him; however, when a lawyer asks a question of a witness when that lawyer knows that they have absolutely not one shred of evidence to back up the proposition that is inferred by the question, that's what is known among the profession as a cheap shot. I can't stop it, but I can tell the jury what it is, and that's what I intend to do. Now, if you've got any evidence about conspiracy for a third party, bring it on. I want it in if there's any such evidence. But to ask these questions to try to plant something like that in the mind of the jury when you know you don't have any evidence for it is just a cheap shot, and I'm going to explain it to the jury.
Defense counsel offered no evidence in support of her contentions.
Thereafter, the trial court gave the following curative instruction, which separated the actual evidence adduced from the improper inferences raised by the inadmissible questions:
Ladies and gentlemen of the jury, please give attention to this. Sometime shortly before we recessed yesterday afternoon, defense counsel asked Mr. Fletcher, who was the witness at that time, a question something to the effect Mr. Fletcher, isn't it a fact that you conspired with a friend of yours to commit this robbery; and when it was bungled and he ran away, in order to save your own skin, you decided to identify the defendant in this case. Now, defense counsel has the solemn duty to defend her client. She has wide latitude in asking questions and examination and cross-examination, and she wouldn't be doing her duty if she didn't do that within the ethical balance of the law. You, as jurors, however, are bound by the evidence. You must not base your verdict on inferences or speculation or anything that is not supported by evidence. The evidence in this case was the witness was asked did you conspire with another person, weren't you the one behind all of this. The answer to that question was, no. And until evidence is produced to change your opinion about that, the evidence is no.
Defense counsel objected by claiming the judge's instruction "tried to explain a witness' testimony" while "[t]he jury is supposed to decide the credibility of the witness and each witness that takes the witness stand." Thereafter, although not cited to this Court by Caldwell on appeal, the trial court clarified its instruction and addressed Caldwell's concern by also charging the jury:
There's another matter I want to clear up with you while we're here. Earlier in the trial a question was asked of witness Fletcher to the effect, isn't it true that you conspired with a friend of yours to commit this robbery and that now you're testifying to get yourself off the hook. I remind you that a question is not evidence and that you must base your verdict on evidence that you heard at trial. I would now elaborate that to say this: You're bound by the evidence that you hear during the trial, that you believe. In no way did I intend to tell you that you had to believe what any witness had said was true. So please understand that you are always the sole judges of what evidence you will believe or not believe, and this court cannot tell you what you must believe.
Following this second curative instruction, Caldwell did not object or renew his motion for mistrial.
Caldwell's failure to renew objection following the trial court's second curative instruction would generally be viewed as a waiver of any alleged violation of OCGA § 17-8-57 on the basis upon which Caldwell objected, i.e., an improper expression regarding the credibility of Fletcher's testimony.3 However, in reversing this Court in its recent decision in Paul v. State,4 the Supreme Court of Georgia announced a new rule of law wherein a claim of error alleging a violation of OCGA § 17-8-57 is not waived by an attorney's failure to object, if such violation constitutes "plain error": "[W]e will apply the plain error rule to death penalty cases[ ] and other criminal cases in which the trial court violates OCGA § 17-8-57."5 This, although for 25 years the failure to object to an alleged violation of OCGA § 17-8-57 has resulted in the waiver of such claim on appeal.6 In fact, we have been especially assiduous in applying waiver ever since the Supreme...
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