Guyton v. State

• Decision Date: 26 February 2007
• Docket Number: No. S06A1532.,No. S06A1535.,No. S06A1534.,No. S06A1533.,No. S06A1537.,S06A1532.,S06A1533.,S06A1534.,S06A1535.,S06A1537.
• Citation: 642 S.E.2d 67,281 Ga. 789
• Parties: GUYTON v. The STATE. Cooper v. The State. Jones v. The State. King v. The State. Preston v. The State.
• Court: Georgia Supreme Court

281 Ga. 789

642 S.E.2d 67

GUYTON v. The STATE.

Cooper v. The State.

Jones v. The State.

King v. The State.

Preston v. The State.

No. S06A1532.

No. S06A1533.

No. S06A1534.

No. S06A1535.

No. S06A1537.

Supreme Court of Georgia.

February 26, 2007.

Reconsideration Denied March 27, 2007.

Newell McAfee Hamilton, Jr., Anthony L. Harrison, Anthony L. Harrison, P.C, Ronald Elridge Harrison II, The Harrison Firm, Grayson P. Lane, Alan David Tucker, Alan David Tucker, Esq. P.C., Kevin Robert Gough, Brunswick, for Appellants.

Thurbert E. Baker, Atty. Gen., Laura D'Ann Dyes, Asst. Atty. Gen., Paula Khristian Smith, Asst. Atty. Gen., Stephen D. Kelley, Dist. Atty., Charles K. Higgins, Asst. Dist. Atty., Leslie Kirby Devooght, Asst. Dist. Atty., for Appellee.

THOMPSON, Justice.

Defendants Lajuan Guyton, Maurice Cooper, Frank Lewis Jones, Stanley King, and Barry Preston were convicted of felony murder and burglary in connection with the shooting death of Frederick Taylor.¹ These appeals followed. Finding no error, we affirm.

1. Viewing the evidence in a light favorable to the verdict, as we are bound to do, we find the following: Defendants Guyton, Cooper, Jones, King and Preston drove from Savannah to Brunswick in a Chevrolet Tahoe. Marti Mincey went with them. Terrence White and Sukille Miller followed the Tahoe in a Chevrolet Malibu owned by Guyton's mother. White drove the Malibu at Guyton's request. The two groups stayed in touch by cell phone as they traveled.

When they arrived in Brunswick, the Malibu pulled past the Tahoe, stopped, and backed up. The trunk was opened revealing rifles, shotguns, pistols, masks, black clothing and bullet-proof vests. Defendants removed these items from the trunk, returned with them to the Tahoe, and followed the Malibu to the home of Frederick Taylor. The Malibu continued down the road and waited; the Tahoe was stopped outside Taylor's house. Defendants exited the Tahoe, broke down Taylor's door, entered the house, and fired their weapons, killing Taylor.

Hours later, Savannah police found the Tahoe and Malibu parked at the home of White's sister. There the police found Guyton and Jones; Jones had a handgun, a cell phone, and $1,600 on his person. In the Tahoe and Malibu, the officers discovered a pistol, a "Franklin" black glove and bullets which were consistent with bullets found at the crime scene. In a storage area adjacent to the house, the police found black clothing, "Franklin" black gloves, armored vests, rifles, and a shotgun. Ballistics tests proved that the rifles were used to fire the bullets in Taylor's house and that one of those rifles, an AK-47, was used to kill Taylor.

At trial the owner of a military surplus store testified that Guyton purchased the AK-47 and a three-holed knit mask. Taylor's girlfriend testified that she hid under the bed with her baby when the intrusion took place; that the intruders wore dark clothing, masks and gloves; and that they carried weapons. However, she was unable to identify any of the intruders.

Terrence White testified that on the night in question, eight men gathered in the front of his sister's house: he, the five defendants, Mincey and Miller. White also averred that the eight men left the house at the same time. In this regard, he stated that he drove the Malibu with Miller and that six men rode in the Tahoe. In addition, White testified that at some point on the journey, Miller and Mincey changed places; that the men who were then in the Tahoe donned black clothing, body armor, gloves and masks; and that they grabbed weapons. White added that he continued driving the Malibu — with Mincey navigating — until they arrived at Taylor's house; that, at that point, Mincey told White to tap the brakes; that White and Mincey then drove up the street and waited until they received a cellular phone call; that they returned to Savannah where they met with the rest of the men at the home of Guyton's father; that he then dropped off Mincey and drove the Malibu to his (White's) sister's house; and that Guyton came to his sister's house to retrieve the Malibu when the police arrived.

Marti Mincey testified that he left Savannah in the Tahoe with defendants Guyton, Cooper, Jones, and Preston, as well as another man with a husky build unknown to him. He also testified that during that trip, he borrowed someone's cellular telephone to call his brother-in-law. Cellular telephone records demonstrated that defendant King's mother's cellular telephone was used to call Mincey's brother-in-law at the approximate time in question.

The evidence is sufficient to enable any rational trier of fact to find defendants guilty beyond a reasonable doubt of felony murder and burglary. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The State introduced both direct and circumstantial evidence to prove that defendants rode in the Tahoe and participated in the invasion of Taylor's house. Although much of the State's case depended on accomplice testimony, the State presented additional corroborating evidence (e.g., black clothing, weapons, cellular telephone records) tending to connect defendants to the crime. See Smith v. State, 238 Ga. 640, 641, 235 S.E.2d 17 (1977) (slight evidence from extraneous source identifying defendant as a participant in the crime is sufficient to corroborate accomplice testimony). Besides, the testimony of White was sufficiently corroborated by the testimony of Mincey, and vice versa. See Pope v. State, 171 Ga. 655, 660, 156 S.E. 599 (1930) (defendant may be convicted on testimony of accomplice even though the only corroboration of the testimony is the testimony of another accomplice).

The mere fact that Mincey was unable to identify King as one of the passengers in the Tahoe is of no consequence. White testified that King was one of the eight men who rendezvoused at White's sister's house; that all of the men left together and that six of them rode in the Tahoe. Mincey identified five of the six men and gave a general description of the sixth; he added that he used a cellular phone during the trip and that that phone belonged to King's mother.

2. The trial court did not err in charging the jury that it should attempt to reconcile conflicting testimony without ascribing false statements to any witness, but that, if it cannot do that, it must determine which witnesses are best entitled to be believed and which are not. Sedlak v. State, 275 Ga. 746, 748, 571 S.E.2d 721 (2002). The charge was not a "presumption of truthfulness" charge. See Noggle v. State, 256 Ga. 383, 349 S.E.2d 175 (1986). It did not require the jury to believe the testimony of Mincey, White, or any other witness, whether impeached or unimpeached. Mallory v. State, 271 Ga. 150, 517 S.E.2d 780 (1999).

3. Our courts have long held that, if it is supported by the evidence, a jury charge may be given on conspiracy even though the defendant was not indicted for that crime. Mangum v. State, 274 Ga. 573, 578(3)(d), 555 S.E.2d 451 (2001); Parnell v. State, 260 Ga.App. 213, 581 S.E.2d 263 (2003). But this is not to say that a court must give an instruction on conspiracy upon the request of the defendant. On the contrary, a defendant is not entitled to an instruction on an offense for which he has not been charged, unless it is a lesser included offense. Belton v. State, 270 Ga. 671, 675, 512 S.E.2d 614 (1999); Hemphill v. State, 242 Ga.App. 751, 531 S.E.2d 150 (2000). Defendants were not indicted for conspiracy, and that offense is not included in felony murder or burglary. See generally OCGA § 16-1-6; Orkin v. State, 236 Ga. 176, 178, 223 S.E.2d 61 (1976) (crime of conspiracy can only be defined in conjunction with a substantive crime involved in the conspiracy). It follows that the trial court did not err in refusing to give a requested charge on conspiracy to commit a crime.

4. Defendant Preston claims the trial court erred in permitting the State to introduce similar transaction evidence against defendant Cooper.² We disagree. Even if it can be said that the similar transaction evidence against Cooper was not sufficiently similar to the other evidence introduced against Cooper at trial, Preston has no grounds to complain because the similar transaction evidence did not implicate Preston. Moreover, when the evidence was admitted the trial court gave a proper limiting instruction concerning the jury's ability to use the similar transaction evidence against Cooper only. See generally Murphy v. State, 270 Ga. 72, 508 S.E.2d 399 (1998).

5. In the same vein, we also find that, contrary to Preston's assertion, the trial court did not abuse its discretion in failing to sever Preston's trial from Cooper's. Short v. State, 256 Ga. 165, 168(4), 345 S.E.2d 340 (1986). Simply put, Preston has not demonstrated that the trial court's refusal to sever harmed him in such a way as to amount to a denial of due process. Moss v. State, 275 Ga. 96, 99(2), 561 S.E.2d 382 (2002).

6. Defendants expressly authorized counsel to waive their right to be present when the court met with and interviewed prospective jurors, including jurors who desired to be excused for reasons of hardship. In addition, after consulting with counsel, each defendant executed a written waiver of his right to be present "during the preliminary selection of available jurors." Thereafter, in the absence of defendants, all counsel agreed to release the jurors who wanted to be excused since enough other jurors remained to facilitate the selection process. Defendant Preston asserts his right to be present during this time was violated because (1) his waiver was not made knowingly and voluntarily and (2) the court and counsel discussed other matters not covered by the waiver. We cannot accept this assertion.

The record shows that before waiving his right to be present, Preston conferred with counsel for at least 14 minutes, during which time counsel fully explained Preston's right to...