Hartry v. State
| Decision Date | 08 February 1999 |
| Docket Number | No. S98A1788.,S98A1788. |
| Citation | 270 Ga. 596,512 S.E.2d 251 |
| Parties | HARTRY v. The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Althea L. Buafo, Buafo & Associates, Macon, for Rodriguez Fayon Hartry.
Fredric Daniel Bright, Dist. Atty., Gray, Thurbert E. Baker, Atty. Gen., Frank Anthony Ilardi, Asst. Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State.
Rodriguez Fayon Hartry appeals his conviction and life sentence for the malice murder of Delma Goddard, Jr.1 Hartry urges that his conviction must be reversed because after the trial court delayed ruling on his pre-trial motion to suppress mention of gang-related activity, the prosecution, in its opening statement, told the jury the evidence would show that the murder was gang-related, and then failed to offer any evidence of gang activity in the presentation of the State's case. We conclude that the prosecution's failure to offer evidence of gang-related activity, as detailed in its opening statement, warranted the granting of Hartry's subsequent motion for mistrial, and that the trial court abused its discretion in ruling otherwise. However, in light of the overwhelming evidence against Hartry, which included eyewitness testimony from no fewer than eight witnesses to the crime, we conclude that any attendant error was harmless. Finding no merit to Hartry's other contentions, we affirm.
The evidence of record shows that in the evening hours of May 26, 1996, Hartry, along with Rondell Durden and Darian Alexander,2 drove to a "Stop the Violence" rally being held at Bonner Park in Milledgeville, Georgia. The three young men traveled in Alexander's pickup truck, with Alexander driving. An argument ensued between the trio and the occupants of a brown van. When police officers approached, the two vehicles drove off in different directions.
Later that same evening, Hartry and the other two, along with Raheen Vasser and David and Danny Renfroe, gathered at an apartment. According to Danny Renfroe and Vasser, Hartry had a nine millimeter handgun with him, and ridiculed the others for their reluctance to retaliate against the occupants of the brown van. According to David Renfroe, Hartry and Durden urged the others to drive to Fifth Street in Milledgeville, because, as Hartry stated, "they're having a party down there." The group first drove to the Renfroes' home, where David Renfroe retrieved Vasser's shotgun and gave it to him. With the Renfroes remaining behind, the four others drove to Fifth Street. Hartry, armed with his nine millimeter handgun, and Vasser, armed with his shotgun, rode in the open back of Alexander's pickup truck. Durden rode in the passenger seat, and Alexander drove.
The quartet drove down Fifth Street, and turned around when the street dead ended. As they drove up the street, the headlights on Alexander's truck turned off, and Vasser fired his shotgun in the air while Hartry fired his nine millimeter pistol at the Fifth Street home of Doris Brown, who was at that time on her front porch with her friends and family. One of the bullets fired at Ms. Brown's home hit and killed her son-in-law, Delma Goddard. Six eyewitnesses, and two of Hartry's co-defendants, testified that the only shots fired at the home came from the back of Alexander's truck, where Hartry and Vasser were seated. Six of these eight eyewitnesses testified that two men were seated in the back of the truck, and that one man fired a shotgun and the other man fired a pistol. Two of these eyewitnesses identified Hartry as the man who fired the pistol at the people gathered on Ms. Brown's front porch. Three of these eyewitnesses identified Vasser as the man who fired a shotgun into the air, while the other man in the truck fired directly at the porch.
A neighbor of Ms. Brown spotted and later identified Hartry as he and the others fled the scene. After fleeing to Vasser's nearby trailer, Hartry removed his striped shirt, and left it in the trailer. He then telephoned his sister and arranged an alibi with her, and telephoned a friend who agreed to drive him home. He was arrested two days later.
Police recovered both Hartry's nine millimeter gun and Vasser's shotgun from a nearby creek. Two nine millimeter shell casings were recovered from the bed of Alexander's pickup truck. One nine millimeter bullet was recovered from Ms. Brown's attic. All were identified as having been fired from Hartry's handgun.
1. The evidence introduced at trial was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Hartry is guilty of malice murder.3
2. Hartry contends that his conviction must be reversed because after the trial court delayed ruling on his motion to suppress statements regarding alleged gang activity, the prosecutor made an opening statement in which he stated that he believed the evidence would show that the shooting of Delma Goddard was gang-related. Thereafter, during the trial, the prosecutor failed to offer any evidence to support that assertion. Hartry claims this improperly placed his character in issue, and unfairly prejudiced his right to a fair trial.
Before trial began, Hartry moved the court to prohibit the State from referencing gang activity during the trial. The trial court denied the motion, based upon the State's representation that it would introduce evidence that the motive for the crime was gang-related. As stated in Alexander, supra, the trial court properly denied Hartry's motion, based upon the prosecution's representation, and the court correctly admonished the prosecution that evidence of gang membership and/or activity would need to be relevant in some way, and that the prosecution must be prepared to explain such relevancy and why any such evidence it sought to introduce was admissible.4
Over objection, the prosecution then stated during opening arguments that it expected the evidence to show that Hartry and his cohorts were members of the Folks gang; that they argued at the rally with members of the Blood gang who were traveling in the brown van; that Fifth Street in Milledgeville is in Blood gang territory; and that Hartry and the others committed a drive-by shooting on Fifth Street in order to retaliate against the Blood gang.
During trial, however, the prosecution did not attempt to identify the occupants of the brown van with whom Hartry and the others argued. Moreover, even though a State's witness claimed to know the identity of the driver of the brown van, the prosecution did not call that individual as a witness in order to determine whether he and the others in the van were members of a gang. Nor did the State attempt to introduce evidence that Fifth Street was in the territory of any specific gang. Furthermore, the prosecutor never sought to identify Hartry as the member of a gang, although he did establish that Vasser, who was not at the rally, did belong to a gang. Accordingly, as we found in Alexander, the record shows that the State failed to offer the evidence of significant gang activity that it detailed in its opening statement.5
As thoroughly explained in Alexander, a prosecutor's opening statement must be confined to what he or she expects the evidence to prove at trial.6 If a prosecutor fails to follow that requirement, a conviction will not be reversed if the opening statement was made in good faith, and the trial court instructs the jury that opening statements are not to be considered as evidence during deliberations.7 When the prosecution fails to offer evidence at trial in support of what was stated during opening statements, it is a prosecutor's burden to show that the opening statement was made in good faith. In this matter, when Hartry moved for a mistrial due to the prosecution's failure to offer evidence of gang activity, the State made no explanation for its failure to make such a proffer. Accordingly, as we found in Alexander, we cannot conclude that the prosecution's opening statement was made in good faith.8
Regarding the trial court's curative instructions, because the prejudicial impact of the prosecution's opening statement was great, the trial court's general charge that opening statements are not evidence, without specific mention of the State's improper references to gang activity, was not sufficient.9 Therefore, as we did in Alexander, we must...
To continue reading
Request your trial
-
Boggs v. The State
...prosecutor lacked a good faith belief that evidence would be presented at trial to corroborate the assertions. See Hartry v. State, 270 Ga. 596, 598(2), 512 S.E.2d 251 (1999) (a prosecutor's opening statement must be restricted to what he or she has a good faith belief will be proven at tri......
-
Jones v. State, S12A1626.
...argument of the prosecuting attorney or that the failure of the trial court to do something more was harmless. Id.;Hartry v. State, 270 Ga. 596, 599(2), 512 S.E.2d 251 (1999); cf. Arrington v. State, 286 Ga. 335, 346(15)(a), 687 S.E.2d 438 (2009) (trial court's failure to respond as require......
-
Ramirez v. State
...of Ramirez's motion for mistrial. See generally Olarte v. State, 273 Ga.App. 96(2)(c), 614 S.E.2d 213 (2005). Compare Hartry v. State, 270 Ga. 596(2), 512 S.E.2d 251 (1999) and Alexander v. State, 270 Ga. 346(2), 509 S.E.2d 56 (1998) (trial court abused its discretion in denying motion for ......
-
Peterson v. State
...court instructs the jury that opening statements are not to be considered as evidence during deliberations. [Cit.] Hartry v. State, 270 Ga. 596, 599(2), 512 S.E.2d 251 (1999). Peterson fails to make any showing that the prosecutor's opening statement was made in bad faith, and the jury was ......
-
Criminal Law - Franklin J. Hogue and Laura D. Hogue
...Hinson v. State, 237 Ga. App. 366, 515 S.E.2d 203 (1999). 160. Alexander v. State, 270 Ga. 346, 509 S.E.2d 56 (1998); Hartry v. State, 270 Ga. 596, 512 S.E.2d 251 (1999). 161. Alexander, 270 Ga. at 351, 509 S.E.2d at 61; Hartry, 270 Ga. at 600, 512 S.E.2d at 255. 162. Alexander, 270 Ga. at ......