Gardner v. State

• Decision Date: 17 May 1993
• Docket Number: No. S93A0296,S93A0296
• Citation: 429 S.E.2d 657,263 Ga. 197
• Parties: GARDNER v. The STATE.
• Court: Georgia Supreme Court

Page 657

429 S.E.2d 657

263 Ga. 197

GARDNER v. The STATE.

No. S93A0296.

Supreme Court of Georgia.

May 17, 1993.

Reconsideration Denied June 18, 1993.

C. Jackson Burch, Savannah, for Gardner.

Spencer Lawton, Dist. Atty., David T. Lock, Asst. Dist. Atty., Savannah, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Dept. of Law, Atlanta, for the State.

Paige M. Reese, Staff Atty., Atlanta.

BENHAM, Justice.

Appellant, 15 years old at the time of the commission of the crimes, ¹ was convicted of malice murder, aggravated assault, armed robbery, and two counts of possession of a firearm during the commission of a felony in connection with the fatal shooting of one man and the armed robbery of another in downtown Savannah at approximately 11 p.m. on July 4, 1991. He was sentenced to life imprisonment for the murder conviction, and various terms of years for the remaining felony convictions. ²

1. The State presented evidence that appellant and a companion robbed one victim of money and jewelry at gunpoint and, minutes later, confronted their second victim, demanding money. That victim was killed by a gunshot to the head. The armed robbery victim, his companion, and the companion of the murder victim all selected appellant's photograph from a display of six photos as one depicting the perpetrator. A witness testified that earlier on the evening of the crimes appellant, who was carrying a .38 caliber gun, and his co-indictee had left their companions in downtown Savannah for the avowed purpose of robbing people. Another witness testified that, after the shooting, appellant and his co-indictee told the witness appellant had shot the murder victim in self-defense. The evidence was sufficient to authorize a rational trier of fact that appellant was guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant contends the trial court erred when it allowed the evidence to be re-opened in response to a question posed by the jury seventeen minutes into their deliberations. "[E]ven after jury deliberations have begun, the trial court, in the sound exercise of discretion, may reopen the evidence and allow the admission of new evidence. State v. Roberts, 247 Ga. 456 (277 S.E.2d 644) (1981)." Childs v. State, 257 Ga. 243, 255, 357 S.E.2d 48 (1987). There is no evidence that the trial court's action was an abuse of discretion.

3. The State presented as a similar transaction evidence that, approximately one year before the events for which he was being tried, appellant was one of two young teenagers who approached a man sitting in a square in downtown Savannah at 10 p.m., and demanded money and jewelry while threatening the use of a gun. The independent crime was similar to the crimes for which appellant was on trial. Immediately preceding the introduction of the evidence, the trial court instructed the jury that they consider the independent crime evidence only for establishing the identity or the state of mind of the perpetrator. The contents of the instruction and the fact that it was given immediately before the introduction of the contested evidence reflect that the trial court ably made the essential preliminary determination as to whether the State was introducing the evidence for an appropriate purpose. See Williams v. State, 261 Ga. 640, 643, 409 S.E.2d 649 (1991). Thus, the State's failure to expressly inform the trial court of the purpose for which the evidence was being offered was harmless error. Compare Williams, supra.

4. Citing Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), appellant contends the trial court committed error of constitutional magnitude when it refused to permit appellant's uncle to testify he had overheard appellant's co-indictee admit that he had shot the murder victim.

It is the long-standing rule in this state that declarations to third persons against the declarant's penal interest, to the effect that the declarant, and not the accused, was the actual perpetrator of the offense, are not admissible in favor of the accused at his trial. [Cits.]. [Timberlake v. State, 246 Ga. 488, 492 (271 SE2d 792) (1980) ].

Since the co-indictee did not testify, the uncle's recitation of the co-indictee's purported confession would fall squarely within Georgia's hearsay rule (OCGA §§ 24-3-1, 24-3-52) and is not admissible pursuant to any hearsay exception. Davis v. State, 255 Ga. 598(8), 340 S.E.2d 869 (1986). Compare Guess v. State, 262 Ga. 487, 422 S.E.2d 178 (1992) (where this court held that the above-stated rule is not applicable where the declarant is present, testifies, and is subject to cross-examination). Chambers is not applicable since the declarant there testified at trial.

5. The State's attempts to impeach a defense witness through the use of contradictory statements were permissible under OCGA § 24-9-83. The State's use of a certified copy of the witness' plea of guilty to a charge of possession of cocaine was also a permissible method of impeachment. See Timberlake, supra, 246 Ga. at 499, 271 S.E.2d 792.

6. Appellant contends the trial court erred when it overruled his objections to the admission of the photo lineup displayed to the witnesses who selected appellant's photo as that of their assailant. Even if we were to agree with appellant that the photospread was unduly suggestive, each witness testified that the in-court identification of appellant was based on the witness' observations the night the crimes were committed, and the evidence supports that testimony. The trial court did not err when it refused to suppress the in-court identification of appellant. Callaway v. State, 257 Ga. 12(3), 354 S.E.2d 118 (1987).

7. (a) Turning to the instructions given the jury by the trial court, appellant contends reversible error was committed because the trial court failed to charge on the presumption of innocence and that the State had the burden of proving guilt beyond a reasonable doubt. The trial court thoroughly covered both principles in a preliminary charge given to the jury after it was sworn and prior to the opening statements. The trial court began its post-evidentiary instructions by reminding the jury of the pertinent portions of the preliminary instructions, reiterating that the defendant was presumed innocent and that the State had to overcome that presumption with evidence sufficient to convince the jury of his guilt beyond a reasonable doubt.

The charge to the jury must be taken as a whole. Hendrix v. State, 239 Ga. 507(3), 238 S.E.2d 56 (1977). When taken as a whole, the charge was correct and complete on the principles of law appellant asserts were overlooked. See Sharp v. State, 192 Ga.App. 353(2a), 385 S.E.2d 23 (1989).

(b) The trial court properly refused to give appellant's requested charges on the included offenses. There was no evidence of provocation to authorize a charge on voluntary manslaughter (see OCGA § 16-5-2(a)); the unrefuted evidence that the shooting victim died precluded a charge on aggravated assault with intent to commit murder (Sanders v. State, 251 Ga. 70(4), 303 S.E.2d 13 (1983)); since the victims were placed in...