Chance v. State

• Decision Date: 18 June 2012
• Docket Number: No. S12A0684.,S12A0684.
• Parties: CHANCE v. The STATE.
• Court: Georgia Supreme Court

291 Ga. 241

728 S.E.2d 635

12 FCDR 1902

CHANCE

v.The STATE.

No. S12A0684.

Supreme Court of Georgia.

June 18, 2012.

Katherine Morgan Mason, Office of the Public Defender, for appellant.

Charles R. Sheppard, Asst. Dist. Atty., Office of the District Attorney, Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Jason Charles Fisher, Asst. Atty. Gen., Department of Law, Ashley Wright, Dist. Atty., for appellee.

CARLEY, Chief Justice.

Appellant Christopher D. Chance and his co-indictee Raymond Trey Sapp were separately tried for the malice and felony murder of Simpson Tyrone Cates and for other offenses. Appellant was found guilty of criminal attempt to possess cocaine and possession of a firearm during the commission of a crime, but the jury acquitted him of malice murder and was unable to reach a verdict on felony murder. On retrial, Appellant was found guilty of felony murder during the commission of criminal attempt to possess cocaine. The trial court entered judgments of conviction and sentenced Appellant to life imprisonment for felony murder, a concurrent five-year term for the drug offense, and a consecutive five-year term for the weapons offense. After Sapp's separate trial, he was convicted of the same offenses, the convictions for felony murder and the firearms count were affirmed on appeal, and the conviction on the drug charge was vacated. Sapp v. State, 290 Ga. 247, 719 S.E.2d 434 (2011). Although Appellant filed an untimely motion for new trial, the trial court granted an out-of-time motion for new trial, and Appellant filed an amended motion for new trial within 30 days thereafter. See Fairclough v. State, 276 Ga. 602, 603(1), 581 S.E.2d 3 (2003). Compare Hood v. State, 282 Ga. 462, 463, fn. 1, 651 S.E.2d 88 (2007). That amended motion for new trial was denied, and Appellant filed a timely notice of appeal.^*

1. Appellant contends that the evidence was insufficient and that the trial court therefore should have directed a verdict of acquittal on the felony murder count. Construed most strongly in support of the verdicts, the evidence shows that Appellant regularly purchased illegal drugs from the victim's cousin Carlos Pressley on a particular rural dirt road. After Pressley arranged for the victim to make a sale of cocaine to Appellant at the same location, Appellant and Sapp arrived there in a pickup truck and stopped next to the victim's vehicle. Appellant fatally shot the victim in the head with a shotgun through Appellant's open driver's side window. Although Appellant testified that Sapp shot the victim, Sapp gave the opposite testimony, and the victim's DNA was found in bloodstains on the lower left side of Appellant's shirt. Appellant eventually surrendered to law enforcement after changing his clothes and concealing the murder weapon in a friend's vehicle.

Appellant argues that the inherent dangerousness required for felony murder is not present in the underlying felony of criminal attempt to possess cocaine, because the victim, and not Appellant, was the distributor of the cocaine, and because the shotgun was in Appellant's vehicle during hunting season for hunting purposes.

“[T]he only limitation on the type of felony that may serve as an underlying felony for a felony murder conviction is that the felonymust be inherently dangerous to human life. For a felony to be considered inherently dangerous, it must be ‘ “dangerous per se” ’ or it must ‘by its circumstances create a foreseeable risk of death.’ ‘In determining whether a felony meets that definition, this Court does not consider the elements of the felony in the abstract, but instead considers the circumstances under which the felony was committed.’ ” [Cit.]

Chua v. State, 289 Ga. 220, 228(1)(b), 710 S.E.2d 540 (2011). By participating in a felony drug deal as the purchaser, Appellant was affirmatively choosing “ ‘to engage in a dangerous and potentially violent criminal activity.’ ” Davis v. State, 290 Ga. 757, 759(2), 725 S.E.2d 280 (2012). See also Smith v. State, 290 Ga. 768, 771(2), 723 S.E.2d 915 (2012). Thus, his criminal attempt to possess cocaine “was dangerous and sufficiently connected to the murder so as to also serve as an underlying felony for the felony murder conviction. [Cit.]” Harris v. State, 267 Ga. 435, 437(1), fn. 2, 479 S.E.2d 717 (1997).

The evidence was sufficient for a rational trier of fact to find Appellant guilty beyond a reasonable doubt of all 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); Sapp v. State, supra at 249(1), 719 S.E.2d 434. However, Appellant was erroneously sentenced on both felony murder and the underlying felony. “We therefore must vacate the separate judgment of conviction and sentence for criminal attempt to possess cocaine. [Cit.]” Sapp v. State, supra.

2. In his argument regarding the sufficiency of the evidence, Appellant further asserts that the trial court should have given his requested instructions regarding inherent dangerousness. However,

[t]he trial court was not required to give an instruction regarding foreseeable risk. In fact, “recent precedent from this Court clearly holds that a trial court's refusal to give an ‘inherent dangerousness' instruction, even when it was requested, did not constitute error.” [Cit.] Given our clear precedent that an instruction on inherent dangerousness is not required, we determine that the trial court's [failure to give Appellant's requests could] not constitute [reversible] error. (Emphasis omitted.)

Davis v. State, supra at 762(5)(b), 725 S.E.2d 280. Although Appellant also cursorily complains of the trial court's responses to the jury's questions regarding felony murder, trial “counsel affirmatively approved of the trial court's handling of the issue. Any error was thus induced and any claim of error waived on appeal. [Cit.]” Konecny v. State, 307 Ga.App. 618, 619(1), 705 S.E.2d 714 (2011).

3. Appellant contends that the trial court erred in failing to remove a juror who, after jury selection and before the panel was sworn, was telephoned by assistant district attorney Hank Syms and was asked to be in his wedding.

“When irregular juror conduct is shown, there is a presumption of prejudice to the defendant, and the prosecution carries the burden of establishing beyond a reasonable doubt that no harm occurred.... ‘(W)here the substance of the communication is established without contradiction, the facts themselves may establish the lack of prejudice or harm to the defendant.’ ” [Cit.]

Jones v. State, 289 Ga. 111, 117(2)(d), 709 S.E.2d 773 (2011). “[S]ome irregularities are inconsequential. [Cit.] The decision whether to remove a juror from a panel lies within the sound discretion of the trial court and will not be overturned absent an abuse of that discretion. [Cits.]” Pinkins v. State, 243 Ga.App. 737, 741(3), 534 S.E.2d 192 (2000). An unauthorized contact between a juror and a member of the prosecutor's office “ ‘will not necessarily require a new trial if the two do not discuss the merits of the case.’ [Cit.]” Smith v. State, 261 Ga.App. 781, 783(2), 584 S.E.2d 29 (2003).

Syms was not involved in the trial of this case. During jury selection, the juror stated that Syms was a longtime friend. On voir dire after the telephone call, the juror testified without contradiction that, when Syms found out about the jury duty, he told the juror that he could not really talk, asked the juror to be in his wedding, stated that he could not talk any more that week, and quickly terminated the conversation. Syms promptly informed the prosecutor of the call. The juror further indicated that he could still be fair and impartial and decide the case based on the evidence. The very brief contact was immediately brought to the trial court's attention, and its purpose was wholly unrelated to Appellant's trial. Pinkins v. State, supra at 740–741(3), 534 S.E.2d 192.

Thus, “[t]he record before us discloses no basis upon which to conclude that the trial court's failure to excuse this juror violated [Appellant's] right to an impartial jury or prejudiced his defense.” Pinkins v. State, supra at 741(3), 534 S.E.2d 192. Assuming that the conversation was improper, the prosecutor rebutted any presumption of harm, and Appellant has failed to show that the conduct rendered the verdict inherently without due process or was so prejudicial that it contributed to his conviction and made the trial fundamentally unfair. Smith v. State, supra at 782–783(2), 723 S.E.2d 915. As the contact “was not an attempt to discuss the merits of the case or influence the juror, [A]ppellant was not harmed by the improper communication....” Jones v. State, supra.

Accordingly, “[t]he trial court did not abuse its discretion in refusing to remove the juror.” Pinkins v. State, supra.

4. Appellant also contends that the trial court erroneously granted a motion in limine made by the State to exclude certain demonstrative evidence. Appellant's proffer consisted of a series of photographs showing various possible reenactments of the homicide based on evidence indicating that the victim's driver's side door was open because its window could not easily be and was not lowered.

The “use of a reenactment is a matter for the trial court's discretion, [and] the party seeking to use it must show that it is a fair and accurate representation of the events sought to be depicted. [Cit.]” Pickren v. State, 269 Ga. 453, 455(2), 500 S.E.2d 566 (1998). See also Eiland v. State, 130 Ga.App. 428, 429(1), 203 S.E.2d 619 (1973). In every photograph, each vehicle had been placed in the same position, such that the driver's side doors were quite close. The trial court properly found that the proffer was speculative and assumed facts not in evidence, as testimony regarding the vehicles' relative position was vague and uncertain, and the photographs would have shown something very different if the victim's vehicle...