Cross v. State

Decision Date13 September 1999
Docket NumberNo. S99A0627.,S99A0627.
Citation271 Ga. 427,520 S.E.2d 457
PartiesCROSS v. The STATE.
CourtGeorgia Supreme Court

OPINION TEXT STARTS HERE

B.W. Crecelius, Sr., Newborn, for appellant.

Fredric D. Bright, District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Daniel G. Ashburn, Assistant Attorney General, for appellee.

HINES, Justice.

Jeffery Cross was convicted of malice murder, armed robbery, and theft by taking a motor vehicle in connection with the fatal bludgeoning of Wallace Marvin Fugate IV. The State sought the death penalty, but the jury returned a sentence of life without parole for the murder. Cross challenges the sufficiency of the evidence of his guilt and the trial court's refusal to strike a potential juror for cause. He also claims that his trial counsel was ineffective, principally during jury voir dire. However, Cross's contentions of error are without merit, and we affirm the convictions. 1 The evidence at trial included Cross's videotaped statement to police, and construed in favor of the verdicts, showed that Cross and his roommate Shawn Whatley planned to beat and rob Fugate. They were especially interested in getting Fugate's car. On November 2, 1993, the two men went to Fugate's home to commit the crimes; however, they were thwarted because Fugate's roommate was home. Around 2:00 p.m. the next day, Cross and Whatley returned to Fugate's residence to carry out their plan. Cross had picked up a metal pipe and hidden it in his clothing. When Cross and Whatley arrived this time, Fugate was home alone, and he did not hear their knocking on the door because music was playing loudly. Finally, Fugate heard the men and let them in. As Fugate sat on the couch with his back to Cross, Cross slid the metal pipe from his clothing and "went straight for" Fugate, striking him over the head with the pipe. Cross wielded the pipe like a baseball bat and struck Fugate in the head at least seven times. Six of the blows crushed Fugate's skull and he died as the result of severe brain injuries.

Whatley removed Fugate's car keys from the body. Cross tried to clean some of Fugate's blood off the couch and floor and he and Whatley wrapped the body in blankets and other items from the home. They then loaded the body into the back of Cross's exgirlfriend's station wagon. They also took items from Fugate's home, including some compact discs and a pool cue, and put them in the trunk of Fugate's car. Whatley drove Fugate's car and Cross followed in the station wagon. They drove to the site of an abandoned house and tried to bury the body there, but the ground was too hard. The men transferred Fugate's body to the trunk of his own car, and headed for their home. On the way, Cross tossed out the murder weapon. They arrived home and explained blood on themselves and the blood-stained station wagon to Cross's ex-wife and ex-girlfriend, who both also lived there, by saying that they hit a deer and that the dead animal was then in the trunk of Fugate's car. Whatley also explained that the new vehicle was his from a former marriage. Then Cross, Whatley, and Cross's ex-wife and baby got into Fugate's car and drove to Atlanta. After dropping off the woman and baby at a friend's home, Cross and Whatley threw Fugate's body into a trash dumpster in Norcross.

A lookout was posted for Fugate and his missing vehicle, and on November 4, 1993, the police stopped the car; Whatley was driving and Cross and his ex-wife and baby were passengers. Whatley was found in possession of Fugate's car keys, driver's license, photographic I.D., and employee tie. After Cross confessed to the crimes, the police were able to recover Fugate's body and the murder weapon and to locate the site where the men had attempted to bury the body.

1. Cross contends that the verdicts and judgments were contrary to the evidence and decidedly against the weight of the evidence because of the medical examiner's trial testimony that the victim may have been unconscious or dead after the first blow. He argues, therefore, that he could not have been convicted of armed robbery inasmuch as that crime requires knowledge or apprehension on the part of the victim, nor could he be convicted of the "felony murder charge" predicated upon armed robbery. But both Cross's premise and conclusion are faulty. Cross was charged with and convicted of malice murder, not felony murder. What is more, "[i]t is well-settled that a defendant commits a robbery if he kills the victim first and then takes the victim's property." Lee v. State, 270 Ga. 798, 801(5), 514 S.E.2d 1 (1999); Francis v. State, 266 Ga. 69, 70-71(1), 463 S.E.2d 859 (1995); Crowe v. State, 265 Ga. 582, 594(21), 458 S.E.2d 799 (1995); Prince v. State, 257 Ga. 84, 85-86(1), 355 S.E.2d 424 (1987).

The evidence was sufficient to enable a rational trier of fact to find Cross guilty beyond a reasonable doubt of malice murder, armed robbery, and theft by taking. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Cross next contends that the trial court erred by refusing to strike prospective juror Moore for cause. During voir dire, defense counsel asked if the jury found Cross guilty of murder and found an aggravating circumstance but the death penalty was rejected, would anyone automatically impose life imprisonment without parole rather than life in prison and Moore responded affirmatively. Citing no authority for the proposition that such response required excusal for cause, Cross urges that the alleged error prevented him from having a fair and impartial venire resulting in his being denied a life sentence. However, the contention is unavailing.

At trial, defense counsel objected that Moore's response was a "life without parole Witherspoon violation," and that Moore should be removed. At that time, the court refused to excuse Moore on that basis, but the court proposed, and defense counsel agreed, that the court would put Moore on its "Witherspoon list," allowing counsel the opportunity for further questioning. Even though other venirepersons were later called for additional questioning, defendant did not recall Moore. Ultimately, the State used its own peremptory strike against Moore and she did not serve on the jury.

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), addresses juror disqualification in regard to the death penalty, and it provides no basis for reversal for a defendant who receives a sentence of life in prison without parole.2 Turner v. State, 268 Ga. 213, 217(5), 486 S.E.2d 839 (1997); see also Beasley v. State, 269 Ga. 620, 625(13), 502 S.E.2d 235 (1998). Moreover, even accepting that Cross raised an objection analogous to a Witherspoon-type violation, Cross cannot now complain about the failure to excuse for cause because he acceded to the trial court's proposal to later allow further questioning of the prospective juror, and thus, implicitly defer a final ruling. See Uniform Superior Court Rule 10.1; Cargill v. State, 255 Ga. 616, 624, n. 7, 340 S.E.2d 891 (1986).

3. Finally, Cross fails in the contention that trial counsel rendered ineffective assistance. In order to prevail on a claim of ineffectiveness of trial counsel, a defendant must show both that counsel's performance was deficient and that the deficiency was prejudicial to his defense. Nhek v. State, 271 Ga. 245, 247(3), 517 S.E.2d 521 (1999), citing Smith v. Francis, 253 Ga. 782, 783, 325 S.E.2d 362 (1985); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first part of the test requires that the defendant "overcome the `strong presumption' that counsel's performance fell within a `wide range of reasonable professional conduct' and that counsel's decisions were `made in the exercise of reasonable professional judgment.'" Nhek at 247(3), 517 S.E.2d 521. In order to satisfy the second part of the test, the defendant must show that there is a reasonable probability that, absent counsel's deficiency, the result of the trial would have been different. Id. Cross does not carry his burden.

(a) Seven panels of potential jurors were examined during voir dire. The court and counsel for both sides kept "hit lists" of names of venirepersons who gave equivocal or troubling responses to Witherspoon questions or inquiries regarding publicity surrounding the case. At the conclusion of voir dire of the panels, the trial court conferred with counsel to determine if either side wanted to question any of the potential jurors further about death penalty qualification or publicity issues. Cross urges that one of his two attorneys, B. Andrew Prince, was illprepared and deficient, and thus ineffective, in selecting the jury because counsel took part in this conference without his "hit list" in hand, and he maintains that venirepersons Hughes, Miller, Lefeaux and Bone should have been requestioned.

Prince testified by deposition for the purpose of Cross's motion for a new trial. Prince, who at the time of Cross's trial had been a member of the bar for 20 years and whose practice was substantially in the area of criminal law, conceded that at the time of the conference in question, he did not...

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  • Rogers v. State
    • United States
    • Georgia Court of Appeals
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    ...is a reasonable probability that, absent counsel's deficiency, the result of the trial would have been different. Cross v. State, 271 Ga. 427, 430(3), 520 S.E.2d 457 (1999). (a) Pursuant to our holding in Division 4, Montalvo was not entitled to a charge on robbery. Hence, counsel's failure......
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1 books & journal articles
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    • United States
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