Cowart v. Adams

• Decision Date: 11 December 2013
• Docket Number: Nos. S13A1295,S13A1296.,s. S13A1295
• Citation: 294 Ga. 333,751 S.E.2d 399
• Parties: COWART v. The STATE. Adams v. The State.
• Court: Georgia Supreme Court

294 Ga. 333

751 S.E.2d 399

COWART

v.The STATE.

Adams

v.The State.

Nos. S13A1295, S13A1296.

Supreme Court of Georgia.

Nov. 18, 2013.

Reconsideration Denied Dec. 11, 2013.

Amy Lee Ihrig, for appellant (case no. S13A1295).

Zipperer, Lorberbaum & Beauvais, Steven Beauvais, Steven H. Sadow, for appellants (case no. S13A1296).

Meg E. Heap, Dist. Atty., Ann M. Elmore, Asst. Dist. Atty., Samuel S. Olens, Atty. Gen., Patricia B. Attaway Burton, Deputy Atty. Gen., Paula K. Smith, Sr. Asst. Atty. Gen., Benjamin H. Pierman, Asst. Atty. Gen., for appellee.

NAHMIAS, Justice.

Alex Cowart and John A. Adams appeal their convictions for felony murder and other crimes related to the armed robbery of Sean Giroir, Michael Levi, John Silcox, and Miles Antle and the subsequent shootings that killed Giroir and injured Levi. For the reasons discussed below, we affirm Cowart's convictions but remand his case for resentencing because he was improperly sentenced for two felony murder convictions based on the death of a single victim. And we reverse Adams's convictions due to the erroneous and harmful admission of evidence bolstering the testimony of the key witness against him.¹

1. Viewed in the light most favorable to the verdict, the evidence presented at trial by victims of the crimes and investigating officers showed the following. Late in the afternoon of October 28, 2010, Giroir, Levi, Silcox, and Antle were inside their house in Savannah when someone knocked at the door. Giroir opened it and was confronted by Cowart and co-indictee Daniel Izzo, who pointed guns at him and forced their way inside. The two intruders demanded money and drugs and told the victims to empty their pockets. Giroir handed over his cell phone and a bag containing unspecified amounts of marijuana and money.

Cowart and Izzo then ran out of the house to a Honda SUV that was waiting around the corner with a driver inside. Giroir chased after them, and Antle followed. Cowart got into the SUV, but Izzo lost a shoe as he fled, and as he reached the vehicle, Giroir caught him and a fight began. Antle arrived moments later and pushed Giroir out of the way, because Antle was bigger and felt he could handle Izzo better. When Antle grabbed Izzo from behind, Cowart got out of the SUV and approached Antle and Giroir with his gun drawn. Antle used Izzo as a shield, while Giroir put his hands in the air and said “don't shoot.” At that point, Levi rounded the corner and neared the SUV. Cowart shot Levi in the arm and hip, turned and shot Giroir twice in the chest, and then turned the gun back on Antle and told him to let Izzo go. Antle continued to use Izzo as a shield, but when Cowart lowered his gun and got back inside the SUV, Antle let Izzo go, and Izzo jumped in the SUV. As the vehicle drove away with Cowart and Izzo inside, Antle got its license plate number. Levi survived, but Giroir died from his two gunshot wounds.

About 6:00 a.m. the next morning, Izzo, Cowart, and Adams were arrested in a hotel room in Atlanta, which Izzo had registered for using a false name, as Izzo attempted to flush marijuana down the toilet. The Honda SUV, which was owned by Adams's girlfriend's mother, was parked outside. The police recovered a shoe from the room that matched the one that fell off Izzo's foot as he fled the victims' house. When arrested, Cowart had $535 in cash; Izzo had $353; and Adams had $161. At trial, Antle and Levi identified Cowart as one of the robbers, and Antle identified him as the shooter.

Before trial, Izzo entered a plea agreement with the State; he was allowed to plead guilty to voluntary manslaughter, armed robbery, burglary, and aggravated assault in exchange for his testimony against Cowart and Adams. According only to Izzo, Adams had suggested to Cowart and Izzo that they rob some people Adams knew who sold marijuana from a house in Savannah. Adams figured that because the drug dealers were breaking the law, they would not report the robbery. The plan was to convince the dealers to turn over money and drugs by threatening them with guns that Cowart would provide. Cowart and Izzo agreed to commit the armed robbery, and Adams drove them to the house in the Honda SUV. When they arrived, Cowart and Izzo went to the door with their guns drawn while Adams stayed in the car because the dealers knew him. Izzo recounted the armed robbery and shootings much as the surviving victims did. He identified himself and Cowart as the two men who invaded the house, Cowart as the shooter, and Adams as the getaway driver. Izzo added that, after the shootings, he, Cowart, and Adams went to Adams's mother's house, changed clothes, and drove from Savannah to Atlanta in the SUV, where Izzo rented the hotel room and they divided the money they had stolen.

Case No. S13A1295 (Cowart v. The State )

2. The evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Cowart guilty beyond a reasonable doubt of the crimes for which it returned guilty verdicts. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).² In particular, the jury, which was instructed on defense of self and others, was entitled to reject Cowart's claim that he shot Giroir and Levi in defense of himself and Izzo. See Sifuentes v. State, 293 Ga. 441, 443, 746 S.E.2d 127 (2013) (“While [the defendant] maintains he acted in defense of himself and his brother, ‘[i]t was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ ” (citation omitted)). See also OCGA § 16–3–21(b)(2) (“A person is not justified in using force [in defense of self and others if he is] ... fleeing after the commission or attempted commission of a felony....”).

However, we must vacate Cowart's sentences and remand his case for resentencing because the trial court erroneously sentenced him on two felony murder convictions involving the same victim. Because both murder counts involved the same victim, one of the guilty verdicts was vacated by operation of law. See McClellan v. State, 274 Ga. 819, 820, 561 S.E.2d 82 (2002). Under our precedent, the decision as to which of the two felony murder verdicts should be deemed vacated—a decision that may affect which other verdicts merge and thus what other sentences may be imposed—is left to the discretion of the trial court on remand. See id. at 820–821 & n. 2, 561 S.E.2d 82.

3. Cowart contends that he is entitled to a new trial because the prosecutor violated OCGA § 17–8–76 during her closing argument.³ Near the end of the State's rebuttal closing argument, the prosecutor suggested that Cowart could be paroled if the jury convicted him.⁴ After the prosecutor completedher argument about a minute later, the jury left the courtroom. Cowart then objected to the prosecutor's argument and asked the court to either bring the jury back for the prosecutor to correct her statement that “life doesn't mean life” or grant a mistrial.⁵ The court summarily denied those requests.

Cowart's objection and motion for mistrial, made after the prosecutor's closing argument ended, were not timely, and he therefore failed to preserve this issue for appeal. See Butler v. State, 273 Ga. 380, 383–84, 541 S.E.2d 653 (2001) (holding that the defendant's objection was untimely when he waited until the end of the prosecutor's closing argument to raise it); Mullins v. Thompson, 274 Ga. 366, 367, 553 S.E.2d 154 (2001) (“[A] motion [for mistrial] must be made at the time the improper argument is uttered.” (emphasis in original)).

Recognizing that we could hold that he waived his complaint about the prosecutor's mention of parole, Cowart alternatively argues that his trial counsel provided ineffective assistance by failing to make a timely objection. This claim is also procedurally barred, however, because Cowart did not raise it in his motion for new trial and did not obtain a ruling on it by the trial court. See Bailey v. State, 264 Ga. 300, 300, 443 S.E.2d 836 (1994). Cowart's new appellate counsel briefly questioned his trial counsel on this issue at the hearing on the motion for new trial; she then discussed the issue in a supplemental brief filed after the hearing, in which she argued that Cowart could amend his motion for new trial at any time before the trial court ruled on it, citing Horne v. State, 231 Ga.App. 864, 501 S.E.2d 47 (1998), and OCGA § 5–5–40(b), which says that “[t]he motion [for new trial] may be amended any time on or before the ruling thereon.” But Cowart never actually amended his motion to add such a claim.⁶

A brief normally does not amend a motion for new trial to add new grounds. See Horne, 231 Ga.App. at 866, 501 S.E.2d 47. In Horne, the Court of Appeals accepted the defendant's brief as an amendment of his new trial motion because “the trial court in its discretion had implicitly allowed the motion to be amended” by treating an enumeration of error raised only in the brief as if it had been raised in the motion. Id. In this case, by contrast, the trial court did not address Cowart's ineffective assistance claim in ruling on his motion for new trial, indicatingthat the court did not treat his supplemental brief as an amendment to the motion and meaning that there is no ruling on the issue for this Court to review.

4. Cowart finally argues that he is entitled to a new trial because the trial court erred in admitting the proffer statement given by Izzo. After being arrested with Cowart and Adams on October 29, 2010, Izzo was interviewed by the police. Among other things, Izzo said that at least one of the men who chased him and Cowart after they left the victims' house had a knife. Izzo also told the police that Adams did not know about the plan to rob the victims—Adams believed they were going to the house to buy marijuana—and that Adams did not participate in the armed robbery. Izzo later began plea negotiations with the State, and on February 22, 2011, h...