Hendricks v. State

• Decision Date: 15 September 2003
• Docket Number: No. S03A0943.,S03A0943.
• Citation: 277 Ga. 61,586 S.E.2d 317
• Parties: HENDRICKS v. The STATE.
• Court: Georgia Supreme Court

586 S.E.2d 317

277 Ga. 61

HENDRICKS v. The STATE.

No. S03A0943.

Supreme Court of Georgia.

September 15, 2003.

Lenzer & Lenzer, Robert W. Lenzer, Norcross, for appellant.

Daniel J. Porter, Dist. Atty., George F. Hutchinson, III, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Jason C. Fisher, Asst. Atty. Gen., for appellee. BENHAM, Justice.

Appellant Reginald Ivan Hendricks was convicted of malice murder, possession of a firearm during the commission of a felony, and conspiracy to commit trafficking in cocaine in connection with the homicide of Andres Gomez.¹ He now appeals the judgment entered on those convictions, contending the evidence was insufficient to authorize the convictions, taking issue with several evidentiary rulings and the limitation of his closing argument to one hour, and claiming trial counsel did not provide him with effective assistance of counsel.

1. A motel guest who heard gunshots and saw two men running away from a vehicle in the motel's parking lot found Andres Gomez shot to death in Gomez's Ford Explorer. He had suffered three gunshot wounds, two to the left side of the back of his neck and one to the top of the back of his left shoulder. Based on the entry wounds and the trajectory of the bullets, the forensic pathologist who performed the autopsy of the victim testified the most likely scenario was that the victim had been shot by someone using his left hand and sitting in the vehicle's backseat. A firearms expert also testified the shots were fired from the backseat at close range to the victim. A cellular phone belonging to appellant was found in the backseat of the victim's vehicle. In a videotaped interview with police detectives after his arrest, appellant initially denied any knowledge of the murder and stated his cellular phone had been lost or stolen the night the victim was killed. Eventually, appellant told investigating officers he and others were supposed to be purchasing a kilogram of cocaine from the victim, and that he had been in the backseat of the victim's vehicle from where he had seen the front seat passenger shoot the victim. It was noted that appellant's right hand had significant scarring from having been burned when he was a toddler. The evidence presented by the State was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of malice murder, possession of a firearm in the commission of a crime, and conspiracy to commit trafficking in cocaine. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant contends the State's circumstantial evidence does not exclude the reasonable hypothesis that he had no prior knowledge of a cocaine sale and was merely present at the scene of the murder. However, questions as to the reasonableness of hypotheses are generally to be decided by the jury, and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law. Foster v. State, 273 Ga. 34(1), 537 S.E.2d 659 (2000). The jury being so authorized, and its finding of guilt not being "insupportable as a matter of law," we decline to disturb the judgment entered on the guilty verdict.

Appellant also asserts his conviction for conspiracy to commit trafficking in cocaine cannot stand because there was no evidence of an essential element of trafficking—the quantity or purity of the cocaine allegedly involved. See OCGA § 16-13-31.² Appellant is mistaken in his belief that the crime one is alleged to have conspired to commit must be proved in order to convict the accused of conspiracy. Conspiracy to commit a crime occurs when the accused, "with one or more persons, conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy." OCGA § 16-4-8. The elements of conspiracy to commit a crime are conspiring and the performance of an overt act to effect the crime. In the case at bar, appellant told the investigating detective in a videotaped interview that he and his cohorts were there to buy a kilogram of cocaine from the victim, and there was evidence of acts performed by the alleged co-conspirators to effect that crime. There is no requirement that the underlying crime be committed. Accordingly, appellant's assertion that an essential element of the underlying offense, the quantity and purity of the cocaine allegedly involved, had to be established in order to convict him of conspiracy to commit trafficking in cocaine, is without merit. Gumbs v. State, 258 Ga.App. 230(1), 573 S.E.2d 485 (2002).

3. Appellant next takes issue with the fact that the trial court limited his closing argument to one hour. The trial transcript reflects that the trial court stated each side had one hour to argue, interrupted trial counsel during the closing argument to announce that counsel's hour was up, refused to honor counsel's request for "two to five" more minutes, and then interrupted counsel again "to ask you to stop at this point."³

OCGA § 17-8-73 provides that counsel in cases involving capital felonies "shall be limited to two hours for each side" for closing argument. In Hayes v. State, 268 Ga. 809(7), 493 S.E.2d 169 (1997), we pointed out that, for purposes of OCGA § 17-8-73, murder is a capital felony regardless of whether the death penalty is sought. "The trial court has no discretion to impose any further limit on the time for closing argument, and failure to afford the parties the full time is, as a matter of law, error." Chapman v. State, 273 Ga. 865, 869(3), 548 S.E.2d 278 (2001). See also Laster v. State, 276 Ga. 645(4), 581 S.E.2d 522 (2003); Ricketts v. State, 276 Ga. 466(4), 579 S.E.2d 205 (2003); Monroe v. State, 272 Ga. 201(2), 528 S.E.2d 504 (2000); Massey v. State, 270 Ga. 76(3), 508 S.E.2d 149 (1998).⁴ A presumption of harm requiring the grant of a new trial accompanies the abridgement of the right to make a closing argument, and that presumption is overcome "when the denial of the right is not complete and only in those extreme cases in which the evidence of a defendant's guilt is so overwhelming that it renders any other version of events virtually without belief." Hayes v. State, supra, 268 Ga. at 813, 493 S.E.2d 169. Appellant's right to make a closing argument was not completely abridged since his attorney was given an hour and a few minutes to persuade the jury. Ricketts, supra, 276 Ga. at 471,579 S.E.2d 205; Monroe, supra, 272 Ga. at 202,528 S.E.2d 504. However, in a case so dependent upon...