Hargett v. State

• Decision Date: 26 January 2009
• Docket Number: No. S08A1591.,No. S08A1589.,No. S08A1590.,S08A1589.,S08A1590.,S08A1591.
• Citation: 285 Ga. 82,674 S.E.2d 261
• Parties: HARGETT v. The STATE. Cox v. The State. Armstrong v. The State.
• Court: Georgia Supreme Court

674 S.E.2d 261

285 Ga. 82

HARGETT v. The STATE.

Cox v. The State.

Armstrong v. The State.

No. S08A1589.

No. S08A1590.

No. S08A1591.

Supreme Court of Georgia.

January 26, 2009.

Reconsideration Denied March 9, 2009.

Bruce S. Harvey, Jennifer S. Hanson, K. Julie Hojnacki, Little & Crumly, Samuel F. Little, Jr., Atlanta, for appellants.

Peter J. Skandalakis, District Attorney, Raymond C. Mayer, Assistant District Attorney, Thurbert E. Baker, Attorney General, Sheila E. Gallow, Assistant Attorney General, for appellee.

HUNSTEIN, Presiding Justice.

Benjamin Hargett, his brother Angelo Armstrong and their cousin Michael Cox were convicted of murder in the shooting death of Tavares Redwine, the aggravated assaults of Adrian "A.J." Wood and Artis McGinty, and burglary arising out of a home invasion in Coweta County. They appeal from the denial of their motions for new trial.¹ We consolidated their appeals and affirm for the reasons that follow.

1. The evidence adduced at trial authorized the jury to find that, in the early hours of May 8, 2006, appellants and at least one other unidentified man forced entrance into a house rented by Redwine and McGinty. Appellants Hargett and Armstrong, with their faces uncovered and armed with handguns and an assault rifle, led the group; appellant Cox, wearing a bandana that covered half of his face, entered later and demanded money and drugs. Wood, who was a guest sleeping on the living room couch, was shot twice as he tried to run away. He survived by pretending to be dead, although his wounds left him permanently unable to use his left arm, and at trial identified appellants as his assailants, testifying that he had known them for years prior to the crimes in issue. McGinty was hit multiple times in the legs and hip by the assault rifle as he left his bedroom and stepped into the lit hallway; appellant Hargett then stood directly over McGinty, demanded he "give it up," and shot McGinty again in the buttocks. McGinty also testified that, as appellant Hargett was taking the money McGinty offered, the murder victim, Redwine, entered the hallway from his separate bedroom in response to the commotion; appellant Hargett shot Redwine in the mid-section, causing him to fall back into the room; appellant Hargett, joined by appellant Armstrong, then went into Redwine's room and stood over him; they demanded that Redwine "give it up" and when he did not, they shot him repeatedly in the body and genitals, urged on by appellant Cox, who was standing near the front of the house. McGinty also testified that, before leaving, appellant Armstrong knelt beside Redwine and fired a final shot into his head while appellant Hargett put a gun to McGinty's head and said "I'll do you in too." Redwine survived long enough to drag himself to the doorway before succumbing to his injuries. McGinty, despite suffering ten to fourteen gunshot wounds, survived and identified appellants as his assailants, testifying at trial that he was previously acquainted with appellant Hargett, was related to appellant Armstrong by marriage and recognized appellant Cox as someone he had previously "seen around" at various parties and football games.

The evidence adduced amply authorized a rational trier of fact to find appellants guilty beyond a reasonable doubt of the charged crimes. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. In a motion not joined by counsel for the other appellants, counsel for appellant Cox moved to strike potential juror Burgess for cause because the juror's father had been a police officer and assistant district attorney in California, she indicated she would believe a police officer over other witnesses at trial and she stated at one point that she had formed an impression about the guilt of appellants. The transcript of voir dire also showed that the juror was rehabilitated by questions posed by the State in which Burgess stated, inter alia, that she would not come in favoring the prosecution and that she both could and would judge the case based on the facts as established by the evidence and the law as given by the trial court. Because Burgess never stated a fixed and definite opinion of appellants' guilt, we conclude that the trial court did not abuse its discretion in failing to strike Burgess for cause. See Lampley v. State, 284 Ga. 37(3), 663 S.E.2d 184 (2008).

3. It is well established that the failure to object in the trial court constitutes a waiver of a party's right to raise a matter on appeal. See, e.g., Rosser v. State, 284 Ga. 335(3), 667 S.E.2d 62 (2008). Appellants have enumerated seven alleged errors on appeal that the record establishes are waived for failure to make a proper objection in the trial court. However, appellants have also raised those same matters in their claim of ineffective assistance of trial counsel. We thus consider the alleged errors asserted by appellants within the analytical framework of an ineffectiveness claim, under which, in order to prevail, each appellant must show both that his trial counsel's performance was deficient and that, but for the deficient performance, there is a reasonable probability the outcome of the trial would have been different. Id. at 337(4), 667 S.E.2d 62. See also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. Francis, 253 Ga. 782(1), 325 S.E.2d 362 (1985).

(a) For the reason set forth in Division 2, supra, appellants Hargett and Armstrong cannot establish an ineffectiveness claim based on their counsel's failure to join in the motion to strike potential juror Burgess for cause.

(b) Appellants contend trial counsel should have objected on the record to the trial court's failure to strike potential juror Green for cause² because she stated she knew victim Redwine, a friend, in that she had attended school and "hung out together sometimes" with him, and initially acknowledged that her friendship would impact her ability to be fair and impartial. But immediately after making these statements, Green affirmatively acknowledged that she could put that relationship aside and decide the case based on the facts from the evidence and the law. Green later stated she also knew the aggravated assault victims and reiterated she could be fair and impartial.

For a juror to be excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court's charge upon the evidence. [Garland v. State, 263 Ga. 495, 496(1), 435 S.E.2d 431 (1993)]; McClain v. State, 267 Ga. 378, 380(1)(a), 477 S.E.2d 814 (1996). A prospective juror's doubt as to his or her own impartiality does not demand as a matter of law that he or she be excused for cause. Waldrip v. State, 267 Ga. 739, 745(8)(c), 482 S.E.2d 299 (1997).... A conclusion on an issue of juror bias is based on findings of demeanor and credibility which are peculiarly in the trial court's province, and those findings are to be given deference. Kirkland v. State, 271 Ga. 217, 219(2), 518 S.E.2d 687 (1999).

Corza v. State, 273 Ga. 164, 166-167(3), 539 S.E.2d 149 (2000). Because our review of the voir dire record does not reveal that Green had formed a "fixed and definite opinion" as to appellants' guilt, appellants cannot show how they were prejudiced by trial counsel's failure to move to strike Green for cause.

(c) After the rule of sequestration was properly invoked, the State failed to request the court's permission to allow Detective Yarborough, the lead investigator of the crimes, to remain in the courtroom. Defense counsel raised no objections to Yarborough's presence beside the prosecutor during the testimony of the first seven State witnesses. Appellants now contend trial counsel was ineffective for failing to object. However, appellants did not show that the trial court would not have allowed Yarborough to remain to assist the prosecutor with the orderly presentation of the State's case, see generally Lewis v. State, 283 Ga. 191(4), 657 S.E.2d 854 (2008), and have established no prejudice to their defense from Yarborough's continued presence in the courtroom. To the contrary, the trial transcript reveals defense counsel on cross-examination used Yarborough's presence favorably to highlight inconsistencies he had heard in the testimony given by the earlier witnesses. This argument is without merit.

(d) Although defense counsel did not object to comments made by the prosecutor in opening statement that the State was "prepared to expose and refute the alibi defense we anticipate from" appellants and was "confident that we have the evidence to prove our case and to disprove the proffered defense," the record reflects that all appellants gave notice pursuant to OCGA § 17-16-5(a) to the State of their intent to present an alibi defense, compare Parker v. State, 277 Ga. 439(2), 588 S.E.2d 683 (2003) (no notice given); counsel for appellants set forth misidentification and alibi defenses in their opening statements; and all appellants presented alibi witnesses at trial. Accordingly, while it is inappropriate for a prosecutor in a criminal case to discuss in opening statement the evidence the State anticipates the defense will present at trial, Parker v. State, supra at 441(2), 588 S.E.2d 683, appellants cannot carry their burden of showing that, had trial counsel objected to the prosecutor's improper comments, there is a reasonable probability the outcome of the trial would have been different. See Jackson v. State, 282 Ga. 494(3), 651 S.E.2d 702 (2007). See also Parker, supra at 442(2), 588 S.E.2d 683 (even where counsel objects, uncorrected argument of prosecutor does not require reversal where it is highly probable the improper argument did not contribute to judgment).

( e) Appellants Hargett and Armstrong contend trial counsel...