Ford v. State

• Decision Date: 07 March 2016
• Docket Number: No. S15A1626.,S15A1626.
• Citation: 298 Ga. 560,783 S.E.2d 906
• Parties: FORD v. The STATE.
• Court: Georgia Supreme Court

298 Ga. 560

783 S.E.2d 906

FORD

v.The STATE.

No. S15A1626.

Supreme Court of Georgia.

March 7, 2016.

Dell Jackson, Decatur, for appellant.

Patricia B. Attaway Burton, Sr. Asst. Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Matthew Blackwell Crowder, Asst. Atty. Gen., Department of Law, Paul L. Howard Jr., Dist. Atty., Marc A. Mallon, Sr. Asst. Dist. Atty., Paige Reese Whitaker, Atlanta, Fulton County District Attorney's Office, for appellee.

BENHAM

, Justice.

Appellant Marcus Ford appeals his convictions stemming from the shooting deaths of Paul Gaines ("Paul") and Michael Gaines ("Michael"), as well as the aggravated assaults of Isaac Walker ("Walker") and Antwan Clark ("Clark").¹ We affirm in part and vacate in part.

1. Appellant alleges the evidence was insufficient to convict. The record, viewed in a light most favorable to upholding the verdicts, shows that Paul, Walker and Clark sold crack cocaine from their apartment in East Point, Georgia. Walker testified that Paul taught appellant how to cook powder cocaine so as to turn it into crack cocaine. Paul believed that appellant was using Benjamin Hickey, who was a neighborhood man going by the nickname of "Pee Wee," to intercept and divert Paul's crack customers to appellant.² On the night in question, Paul, Michael, Walker, and Clark drove to appellant's house to confront him about diverting Paul's drug customers.³ Paul exited the vehicle, approached appellant, who was on the porch of his house, and the two began to argue while the other three men looked on from inside the car. Appellant brandished a gun at Paul, causing the other three men to exit the vehicle and to plead with Paul to leave. As Michael reached for Paul's arm to urge him to leave, appellant opened fire. Michael went down immediately, but Paul was able to run. Appellant chased after Paul, continuing to shoot at him until he fell. Upon appellant's further threats of shooting them, Walker and Clark fled on foot. Appellant left the scene in his vehicle and stopped to throw the gun away in a river. Appellant eventually turned himself in to authorities.

At trial, appellant testified that Paul had a gun and shot at him first, at which point he retrieved a gun and shot back. Walker and Clark testified that none in their group, including Paul, was armed with a gun. Clark testified appellant was armed with a black "baby" Glock handgun. Police did not recover any guns from or near the decedents' bodies or from inside the vehicle which had been abandoned during the shooting. All six shell casings found at the scene were in one general location near where witnesses said appellant was standing during the shooting. The ballistics expert testified that the six shell casings were fired from the same gun and were consistent with being fired from a .40 caliber Glock gun. Appellant's wife testified that, three years prior to the shooting, she bought two Glock guns, one of which she kept under a sofa located on a porch outside appellant's house. Although the Glocks she purchased were 9 millimeter weapons, appellant's wife also testified that she purchased .40 caliber ammunition for the gun kept under the sofa. The ballistics expert also testified the two bullets recovered from Paul's body and the single bullet recovered from Michael's body were fired from the same gun and were consistent with being fired from a .40 caliber Glock semiautomatic pistol. The medical examiner testified that Paul suffered six gunshot wounds

and died from a fatal wound to the chest. Michael was shot in the back and the bullet traversed his spine and disrupted a large blood vessel to the heart, mortally wounding him. The parties stipulated that appellant was a convicted felon.

The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt 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)

. The jury was free to reject evidence submitted by appellant that he acted in self-defense. White v. State, 287 Ga. 713(1)(b), 699 S.E.2d 291 (2010). Accordingly, this allegation of error cannot be sustained.

We note, however, that the trial court made a sentencing error when it sentenced appellant for the aggravated assaults of Paul and Michael. Those two aggravated assaults should have merged as a matter of fact into the convictions for malice murder. See Hulett v. State, 296 Ga. 49(2)(a), 766 S.E.2d 1 (2014)

. Accordingly, the concurrent sentences of 20 years for each of the aggravated assaults of Paul and Michael must be vacated.⁴

2. Appellant alleges the prosecutor engaged in misconduct by making misleading comments in his opening statements, by pursuing a theory that appellant was a drug dealer, by making certain comments during closing argument, and by improperly cross-examining Benjamin "Pee Wee" Hickey. Our review of the record shows, however, appellant never made an objection concerning prosecutorial misconduct at any point during the proceedings, including during the State's opening and closing and its cross-examination of Hickey, and never asked the trial court to rebuke the prosecutor for any alleged misconduct. "The contemporaneous objection rule cannot be avoided by characterizing trial occurrences as examples of prosecutorial misconduct." (Citation an internal quotations omitted.) Sanders v. State, 289 Ga. 655(2), 715 S.E.2d 124 (2011)

. In the absence of any objection regarding prosecutorial misconduct, these allegations of error are not properly before this Court for review. See Doyle v. State, 291 Ga. 729(2), 733 S.E.2d 290 (2012) ; Duvall v. State, 290 Ga. 475(2)(a), 722 S.E.2d 62 (2012) ; Shealey v. State, 257 Ga. 437(3), 360 S.E.2d 266 (1987).

3. Appellant alleges that the trial court erred when it did not grant his motion for mistrial at the close of the State's case-in-chief. Whether to grant a mistrial is a matter of the trial court's discretion. Jackson v. State, 292 Ga. 685(4), 740 S.E.2d 609 (2013)

. The trial court's ruling denying a motion for mistrial will not be disturbed unless there is a showing that a mistrial is essential to the preservation of the right to a fair trial. Id. at 689, 740 S.E.2d 609

.

As basis for his motion for mistrial, appellant complained that the State had not called Hickey to testify and therefore failed to establish, as indicated by the prosecutor's opening statement, that appellant was a drug dealer. The State, however, was not required to call Hickey as a witness.⁵ Walker, who was a State witness, testified that Paul taught appellant how to make crack cocaine; and Clark, who was also a State witness, testified that appellant was diverting Paul's drug customers. When authorities searched appellant's home, they found a living room without any furniture, a camera trained directly on the front door which was a common set-up for drug houses, and a large amount of cash. The State also provided evidence that appellant's home was the subject of a previous law enforcement inquiry into alleged drug activity. A jury could reasonably infer based on this evidence that appellant was involved in the drug trade without hearing from Hickey during the State's case-in-chief. We cannot say the trial court abused its discretion when it declined to grant appellant's motion for a mistrial.

4. Appellant complains the trial court erred when it overruled appellant's objection to the prosecutor's calling Hickey a liar during closing argument. During his closing argument, the prosecutor stated that he did not call Hickey to testify because he was not going to suborn perjury.⁶ At that point, appellant objected on the grounds that the comment was improper and was essentially bolstering, but the trial court overruled the objection. "The State has broad latitude to demonstrate, as part of its closing argument, that which is authorized by the evidence." Crawford v. State, 297 Ga. 680(2), 777 S.E.2d 463 (2015)

. The trial court has the discretion to determine the proper scope of closing argument. See Alexander v. State, 285 Ga. 9(2), 673 S.E.2d 208 (2009).

Here the record shows that during the defense's presentation of evidence, Hickey testified on direct-examination that appellant did not sell drugs and he denied telling authorities that appellant sold drugs. On cross-examination, however, he admitted telling authorities that he was "a crack connoisseur." He also admitted that on the night of the shooting, Paul had confronted him and told him, "What you doing, man? Don't come around my area no more." It was also clear from cross-examination that some of Hickey's testimony on direct, in particular testimony about whether appellant sold drugs, was different from the pre-trial statements Hickey allegedly made to the prosecutor and the State's investigator. Thus, although the prosecutor should have avoided personalizing the argument, his comments in closing as to his reasons for not calling Hickey to testify during the State's case in chief or as to the reliability of Hickey's testimony, which were in response to defense counsel's argument, were supported by the evidence. Additionally, the trial court instructed the jurors that statements made by the lawyers did not constitute evidence. The trial court did not commit reversible error when it overruled appellant's objection.

5. When the trial court overruled appellant's objection to the prosecutor's comments described in division 4 herein, it stated as follows: "Well, I overrule your objection. I think this is proper argument based on the evidence and the witnesses." Appellant contends this statement was an improper comment on the evidence in violation of former OCGA § 17–8–57. We disagree. The trial court was merely stating the basis for its ruling which it is permitted to do. See Ridley v. State, 290 Ga. 798(2), 725 S.E.2d 223 (2012)

.

At trial, appellant made an objection that the State was...