Cheney v. State

• Decision Date: 23 June 1998
• Docket Number: No. A98A1050.,A98A1050.
• Citation: 503 S.E.2d 327,233 Ga. App. 66
• Parties: CHENEY v. The STATE.
• Court: Georgia Court of Appeals

503 S.E.2d 327

233 Ga. App. 66

CHENEY v. The STATE.

No. A98A1050.

Court of Appeals of Georgia.

June 23, 1998.

Certiorari Denied November 5, 1998.

Lee Sexton & Associates, Lee Sexton, Jonesboro, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Sandra A. Graves, Assistant District Attorneys, for appellee.

McMURRAY, Presiding Judge.

Defendant was charged in an indictment with aggravated assault, by use of a deadly weapon, and also with possession of a firearm during the commission of a felony. The evidence at his jury trial revealed the following: Shortly after 7:00 a.m. on Sunday July 7, 1996, Officer Tony Hajjar of the Locust Grove Police Department responded to a call of a "person shot." As Officer Hajjar arrived, "Defendant ... was in the doorway [of Rusty Blaydes' mobile home] calling to [the officer] by name because [defendant knows him]. And [Officer Hajjar] immediately ... observed the victim lying on the porch on his back and he was bleeding." Officer Hajjar tried "to keep him [the victim] conscious by talking to him and not letting him go into a coma ... until the EMS could arrive. There was a bottle of vodka ... on the porch, near the victim, and [also] a spent round of, it appeared to be a .38 caliber round ... on the porch beside the victim." After the emergency medical technicians arrived, Officer Hajjar "immediately went to the Defendant's [nearby] residence, where Officer Gunter from the Henry County Police Department had him in custody in the front yard. [Officer Hajjar] took custody, ... handcuffed [defendant], and placed him under arrest and... read him his Miranda." After these warnings, defendant "said, `I shot him.'" The weapon was recovered from defendant's residence, "on an ironing board ... between the kitchen and living room." The weapon contained "[f]ive spent cartridges...." Sergeant Keith Nichols with the Henry County Bureau of Police Services identified a half-gallon bottle of vodka and two empty shot glasses recovered from Rusty Blaydes' mobile home.

Scott Ted Strickland, the victim, testified he was at the mobile home of his friend, Rusty Blaydes, "helping him sheetrock and renovate it." They "stay[ed] up all night working on it[.] ... [Around five or six in the morning, the victim ] was asleep on the floor [when he] was awakened by the Defendant. He kicked [the victim], nudged [him] with his foot and told [the victim] to get up." After complimenting the renovation work, defendant "left and he came back a while later." He "had a bottle of vodka in his hand[, and said,] `This is a welcome to the neighborhood bottle.'" After the victim consumed his second shot glass of vodka, the defendant "all of a sudden just changed.... His whole demeanor changed. He just started getting cocky and then just comes up and says, `I'm going to kick your a—.'" The victim "thought he was joking, at first. And then [the victim] looked at him and ... realized, `Hey, he's not joking.' [The victim] said, `Well, I'm going to stomp your a—, you MF....' [But defendant] pulled out [a] pistol and [the victim] jumped back. [The victim] said, `Hey, everything's cool,' ... and as soon as [the victim] jumped back and threw [his] hands up, [defendant] shot [the victim] in the chest." The victim "hollered, `Run,' and ... threw [his] hands up over [his] face and ... arms up over [his] chest ..., and [he] was struck in the elbow." The victim turned and fled towards the door, and "was struck twice [more] in the back. [The victim] fell face first out on the front porch[, and] couldn't move." The victim was "pretty much paralyzed from [the] chest down. [He] couldn't move and [he] heard [defendant] walk up beside [him] and [the victim] looked up.... [Defendant] pulled the hammer back, had the gun pointed ... at [the victim's] head.... [The victim] turned [his] head down, and when [he] did, [defendant] dropped [the gun] down and shot [the victim] in the back...."

Rusty Duke Blaydes confirmed that defendant was "standing in front of the window, drinking ... out of the bottle, and just all of a sudden he goes [to the victim], ... `I want to kick your a—, MF.'" Rusty Blaydes "turned around and Scott [the victim] said, `Do what, MF.?' And [Rusty Blaydes didn't] really remember seeing where the gun come [sic] from, but [defendant] pulled a gun. It was, like, bam, bam, and ... [the victim] put his hands up in front of his head.... [Rusty Blaydes ran] out the door and ... jumped off the porch." Rusty Blaydes further confirmed that, "with no provocation of any nature whatsoever, [defendant] pulled out a pistol and shot [the victim] five times."

Defendant testified he acted in self-defense, only after Rusty Blaydes kicked him in the groin, shooting "without aiming or looking where [he] was shooting, [and that] in panic [he] pulled the gun and emptied it, all five rounds...." Nevertheless, the jury found defendant guilty as charged. This direct appeal followed. Held:

1. Defendant first enumerates the denial of his motion for mistrial predicated upon the State's reference to defendant's initial exercise of his right to remain silent.

In the State's opening statement, the State's Attorney told the jury that, when defendant was asked if he would speak to police without a lawyer, "he told them, `No, I don't think I will,'" to give some context to defendant's subsequently volunteered custodial statement, "I shot him." Defendant's motion for mistrial was denied but the trial court ordered the State's Attorney to "stay off of that." After trial, defendant renewed his motion for mistrial, asking first that the jury be admonished "to totally disregard whatever that comment was...." The trial court noted it excluded evidence of that statement and had already charged the jury that "anything said in the opening statements and closing arguments was not evidence, and that if anything were said in those that were not borne out by the evidence they should disregard it." Thereafter, defendant declined the trial court's offer to "specifically charge them to ignore that particular statement."

(a) The decision whether to grant a mistrial under OCGA § 17-8-75 is committed to the sound discretion of the trial court and its ruling will not be disturbed on appeal except upon an abuse of that discretion such that a new trial is necessary to protect the defendant's right to a fair trial. Cowards v. State, 266 Ga. 191, 193(3), 194 (3, c), 465 S.E.2d 677; Floyd v. State, 227 Ga.App. 873(1), 490 S.E.2d 542. "Evidence as to silence on the part of the defendant at the time of his arrest should be excluded when objected to, for he is then entitled to remain silent, and the prosecution may not use against him the fact that he stood mute or claimed his privilege. Improper reference to a defendant's silence, however, does not automatically require reversal." (Citations and punctuation omitted.) Brewer v. State, 219 Ga.App. 16, 18(4), 19, 463 S.E.2d 906.

"In the case of Dowda v. State, 74 Ga. 12, the Supreme Court commended the practice of an opening statement by the solicitor-general [now district attorney] of what he expected to prove in behalf of the State, on the ground that it gave the accused information of the facts that he was expected to meet. This commendation, however, could properly apply only to a statement of facts which the [district attorney] really expected to prove, and which, under the rules of evidence, he would be allowed to prove. It certainly could not apply to allegations which could not be supported by evidence, or which, even though true, could not, under the rules of...