Hayes v. State

• Decision Date: 03 July 1991
• Docket Number: Nos. S91A0110,S91A0111,s. S91A0110
• Citation: 261 Ga. 439,405 S.E.2d 660
• Parties: HAYES v. The STATE. TURNER v. The STATE.
• Court: Georgia Supreme Court

Page 660

405 S.E.2d 660

261 Ga. 439

HAYES v. The STATE.

TURNER v. The STATE.

Nos. S91A0110, S91A0111.

Supreme Court of Georgia.

July 3, 1991.

Reconsideration Denied July 24, 1991.

James Robert Sparks, Atlanta, L. Burton Finlayson, Michael Mears & Associates, Decatur, for Hayes.

Paul L. Howard, Thomas, Kennedy, Sampson, Edwards, & Slayton, Atlanta, for Turner.

Lewis R. Slaton, Dist. Atty., Michael J. Bowers, Atty. Gen., Carl P. Greenberg, Asst. Dist. Atty., Mary H. Hines, Staff Atty., C.A. Benjamin Woolf, Atty., State Law Dept., Atlanta, for the State.

CLARKE, Chief Justice.

Bobby Joe Turner and Alfonzo Hayes were tried together for the murder of 15-year-old Cory "Moonbeam" Willis. ¹ There was testimony at trial that on the evening of the murder a neighborhood drug dealer, Bo, threatened Turner and his family. There was testimony at trial that Bo had fired into Turner's car in which Hayes was riding as a passenger. According to both defendants, Turner borrowed a rifle to protect himself and returned to the scene with Hayes to effect a citizen's arrest of the drug dealer. There they encountered the victim, who, according to both defendants, made a sudden move. There was testimony from another witness, Jerry Lee Rogers, that after Turner told the victim to halt he heard the victim say "It's Moonbeam, don't shoot!" Turner testified that believing that the victim was the drug dealer, he told him to halt and then fired a shot aimed at the leg of the victim. Other witnesses testified that Turner fired two shots at the victim. Jerry Lee Rogers testified that he saw Turner shoot the victim two times. He testified that the victim tried to crawl away. He testified that after Turner fired one shot, Hayes went to his apartment to retrieve a Winchester .30/.30 rifle. Turner then fired another shot at Moonbeam. According to Rogers, Hayes returned with the rifle and threatened Rogers, who ran into his aunt's apartment. He testified that he heard another gunshot but did not see Hayes shoot the victim. He did see Hayes point the rifle at the victim. Another witness said that she saw Hayes shoot the victim with the rifle. There was testimony that Hayes turned the victim over and put the rifle on his chest but at Turner's instruction wiped the fingerprints off the rifle and placed the Winchester .30/.30 rifle in the victim's hand before leaving the scene. At trial the medical examiner testified that either of two gunshot wounds could have been the cause of death. He also testified that he removed .30/.30 bullet fragments from the body of the victim. A firearms expert from the Georgia Crime Lab testified to his opinion that the bullet fragments came from the rifle found by the victim. Turner said that he ran away after discovering that he had shot a neighbor instead of the drug dealer, and he insisted that he was not present when Hayes allegedly fired a rifle shot into the victim's back. Turner was convicted of felony murder. Hayes was convicted of malice murder. Both were sentenced to life imprisonment.

Reviewing the evidence in the light most favorable to the jury's verdict, we hold that a rational trier of fact could have found both appellants guilty of the crime for which they were convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

I. Appellant Turner

Appellant Turner enumerates sixteen errors. These enumerations basically break down into complaints concerning the prosecutor's opening and closing statements, complaints concerning jurors, the court's failure to sever Turner's trial from that of Hayes, the testimony of Harold Woods, and complaints concerning the charge.

1. Opening statement: Turner complains that the following statement of the prosecutor placed his character in evidence and warranted a mistrial: "They did a check of Cory Willis' blood and urine, and there was no drugs and no alcohol in his body, and his mother will testify to you that he did not hang out with the defendants and their crowd." The court sustained Appellant Turner's objection but declined to grant a mistrial. We do not agree that the court exceeded its authority.

2. Jurors: Appellant Turner contends two jurors should have been disqualified. Turner characterized the answer of one juror as being that she could not follow the instructions of the court concerning a defendant's right not to testify. She actually said that she understood that the court would instruct the jury that the defendant has a right not to take the stand and that the jury may not consider this against him. The juror said that even if the court gave that instruction, it would bother her that the defendant did not get up and tell his side of the story. Turner did in fact testify. He contends that another juror said that she could not be impartial because of a murder in her family and could not look at pictures of the crime scene. The juror actually said that she would try to be impartial but was not sure if she could. However, when questioned by the court she did say that she would follow the instructions of the court.

Neither juror served on the jury. The state argues that since the selection process was not recorded, Turner cannot show that he was forced to exercise a peremptory strike on either juror. However, as we held in Harris v. State, 255 Ga. 464, 465, 339 S.E.2d 712 (1986), "[t]he defendant's use of his peremptory strikes will ... no longer play a role in our evaluation of the harm caused by the refusal to strike an unqualified juror." These jurors were not disqualified under OCGA §§ 15-12-135(a), 15-12-163, or 15-12-164, and we find no error in the court's not excusing them for cause.

Turner contends that seven jurors were stricken because of race and that the state showed no racially neutral reason for striking the jurors. The state did give a racially neutral reason for striking the jurors, and in each case the court found the reason credible. We find these reasons sufficient. Therefore, we hold that no error was shown under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

3. Severance: Turner contends that his trial should have been severed from that of his co-defendant Hayes because the defense theories of the two co-defendants was totally different. According to Turner, the theory of his defense was that he was attempting to make a lawful arrest. Turner contends that Hayes' defense was simply a denial that he had shot at the victim. Appellant Turner insists that his case was prejudiced because Hayes interjected his (Hayes') character into evidence, allowing the state to bring in evidence of previous convictions. The state responds that Turner has not shown any denial of due process, which is the test for severance under Allen v. State, 255 Ga. 513, 340 S.E.2d 187 (1986). The state says that while the defenses were different, they were not antagonistic. We agree. As we said in Allen v. State, supra, the defendant must show prejudice and consequent denial of due process before a motion to sever will be granted. The denial of a motion to sever is within the discretion of the trial judge and will not be reversed in the absence of abuse of discretion. We find no error.

4. Testimony of Harold Woods: Turner claims that Harold Woods' testimony should not have been allowed because his name was not given to the defendants until four days after trial had begun. OCGA § 17-7-110. According to Turner, Mr. Woods said at trial that he had given a statement to the prosecution six days before trial. The state responds that the prosecutor discovered the witness on the evening prior to the morning she gave notice to defendants that she would call Woods. The state points out that court was recessed to allow defendants' counsel to interview Woods. Finally, the state insists that any error was harmless since Turner has shown no prejudice through the testimony of this witness and since his testimony was cumulative of that of other witnesses. We find no error. OCGA § 17-7-110 provides that a list of witnesses be furnished to defendant ten days prior to trial unless the prosecutor states in his place that the evidence to be presented is newly discovered evidence which was not available at the time the defendant was furnished the witness list. The prosecutor stated in her place that she had discovered new evidence regarding the witness on the evening before she furnished his name to the defendants. The trial judge gave the defendants' attorneys an opportunity to interview the witness. The fact that the witness would not co-operate with the attorney did not justify disallowing his testimony.

5. Denial of directed verdict: Turner says he was indicted for malice murder and the state then set out to prove transferred intent by facts not indicated by the indictment. The state responds that since the facts proven by the state would support a verdict of malice murder, the trial judge did not err in denying the motion for a directed verdict of acquittal. Reviewing the evidence in the light most favorable to the jury's verdict, we hold that a rational trier of fact could have found appellant guilty of the crime for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

6. Jury instructions:

(a) Appellant Turner contends that the court erred in not charging involuntary manslaughter (OCGA § 16-5-3(b)) because he involuntarily shot the victim while attempting to effect an arrest. Also, he argues that the failure to charge was error because this was the sole defense of the defendant. Turner relies upon Griffin v. State, 154 Ga.App. 261, 267 S.E.2d 867 (1980). However, this case makes it clear that a charge on the defendant's sole defense is mandatory if there is some evidence to support the charge. In Jackson v. State, 154 Ga.App. 867, 270 S.E.2d 76 (1980), the Court of Appeals found that there was some evidence from which the...