Holcomb v. State
| Decision Date | 12 May 1997 |
| Docket Number | S97A0440,Nos. S97A0438,s. S97A0438 |
| Citation | 268 Ga. 100,485 S.E.2d 192 |
| Parties | , 97 FCDR 1630, 97 FCDR 2939 HOLCOMB v. The STATE. LOPEZ v. The STATE. |
| Court | Georgia Supreme Court |
Frank G. Smith, Smyrna, for Holcomb.
Joseph M. Todd, Jonesboro, for Lopez.
Thomas Joseph Campbell, District Attorney, Cartersville, Christopher S. Brasher, Assistant Attorney General, Paula K. Smith, Senior Assistant Attorney General, Atlanta, for State.
Appellants Eddie Holcomb and Vincent Lopez were jointly tried and convicted of felony murder, aggravated assault, conspiracy to commit armed robbery, and possession of a firearm during the commission of a felony. 1 On appeal, both appellants claim that alleged juror misconduct warranted the declaration of a mistrial. We find, however, that the alleged misconduct, if it in fact occurred, was harmless beyond any reasonable doubt. Appellant Holcomb also claims that his trial counsel was ineffective due to certain statements apparently made during closing arguments. Pretermitting whether this issue was properly preserved for appeal, we find that the statements did not prejudice Holcomb's defense. Appellant Lopez also claims that certain testimony by a State's witness amounted to improper bad character evidence. We find, however, that the evidence was permissible as it established a motive for the crimes of which Lopez was convicted. Finding no merit to the other enumerations raised, we affirm the convictions.
The evidence introduced at trial, construed most favorably to the verdict, authorized the jury to conclude that early one morning in February 1995, Matthew Gann flagged down a deputy sheriff and told him that he had been shot and that his friend, more seriously injured, was laying in a nearby parking lot. The deputy then drove to the parking lot, where he found Peter Beaupre laying face down on the pavement, a gunshot wound to the head. Beaupre died soon thereafter. A subsequent autopsy revealed that he had been shot in his head with a .380 caliber-type firearm.
Earlier that evening, Gann and Beaupre had received a phone call from a woman, Brownlow, inviting them to a party. During the phone conversation, Brownlow asked Gann and Beaupre if they had any drugs to sell. Both replied that they did not. During the same phone conversation, appellant Holcomb got on the line and arranged to meet Gann and Beaupre at a restaurant.
When Gann and Beaupre arrived at the restaurant, they encountered a car with appellant Holcomb as passenger, William Matthew Sumner as driver, and, although they could not see him, appellant Lopez laying in the back seat. Appellant Holcomb motioned from the car for Gann and Beaupre to follow him. Gann and Beaupre followed him to the parking lot, where the two cars parked parallel to one other. Holcomb then motioned for Gann to get out of the car. When Gann did so, Holcomb approached him and struck him in the head with an unidentified object. Lopez then emerged from his hiding place in the backseat of the car, carrying a gun. A struggled ensued between Gann and Lopez, during which Gann was shot in the stomach. Gann then ran to his car, where he saw Beaupre seriously injured and lying on the ground just outside the passenger door. As Gann attempted to pull Beaupre inside the car, a gunshot shattered the driver's side window. Gann then drove off, and soon encountered the deputy sheriff.
The subsequent police investigation revealed that Holcomb and Lopez believed that Gann possessed drugs, which they planned to steal from him. After the phone conversation in which the restaurant rendezvous was arranged, Holcomb and Lopez, along with Sumner, armed themselves in preparation for the robbery; Holcomb with a .380 caliber semi-automatic handgun, Lopez with a sawed-off .22 caliber semi-automatic rifle, and Sumner with a crowbar.
Sumner and Brownlow were indicted along with appellants Holcomb and Lopez. Sumner and Brownlow opted to enter guilty pleas, and testified on behalf of the State at appellants' trial.
1. The evidence, construed favorably to the verdict, authorized a reasonable finder to fact to find Holcomb and Lopez guilty of the crimes of which they were convicted. 2
2. Holcomb and Lopez both argue that the trial court committed reversible error by failing to interrogate jurors about their alleged exposure to a newspaper account of the trial. During the testimony of Sumner, the jury was excused for a short recess, and some of the jurors retired to the courthouse lobby. When the proceedings resumed, Holcomb's stepfather testified that during the recess, he had observed some of the jurors standing near a vending machine that contained newspapers depicting photographs of co-defendants Sumner and Brownlow, and carrying an article about their guilty pleas. Holcomb's stepfather also testified that he had overheard one of the jurors state that the jury was "out here because of Matt Sumner." Other than this one statement, Holcomb's stepfather conceded that he did not know what the jurors had discussed during the recess.
Holcomb's counsel asked the court to inquire of the jurors the extent to which they had discussed the case and formed an opinion prior to the admission of all evidence. When the trial court asked counsel what course of action it should take in response to the alleged juror misconduct, Holcomb's counsel volunteered that nothing in the testimony of Holcomb's stepfather showed anything prejudicial or detrimental to Holcomb's defense, and even if the allegations of juror misconduct were true, Holcomb had suffered no harm. A party may not complain on appeal of a ruling that he contributed to or acquiesced in by his own action, trial strategy, or conduct. 3 Because Holcomb conceded before the trial court that the alleged juror misconduct, even if it occurred, did not harm his right to a fair and impartial jury, he may not complain on appeal about the trial court's refusal to interrogate the jury in response to the allegations of misconduct.
As for Lopez, he claims that the trial court erred in refusing to grant his motion for a mistrial due to the alleged juror misconduct. We disagree. When irregular juror conduct is shown, there is a presumption of prejudice to the defendant, and the prosecution carries the burden of establishing beyond a reasonable doubt that no harm occurred. 4 However, in order for juror misconduct to upset a jury verdict, it must have been so prejudicial that the verdict is deemed " 'inherently lacking in due process.' " 5 Furthermore, "when the substance of the communication is established without contradiction, the facts themselves may establish the lack of prejudice or harm to the defendant." 6 In this case, there is no contradiction in the alleged statement made by a juror. That alleged statement, while in violation of the trial court's instruction not to discuss the case or view media accounts thereof, did not involve deliberation of the case before the close of evidence, or a situation where one juror attempted to persuade another on any issue in the case. 7 Therefore, we are satisfied that the juror's actions, while improper, were not so prejudicial as to have contributed to the conviction, and were harmless beyond a reasonable doubt. 8
3. During closing arguments, Holcomb's trial counsel apparently suggested that the jury should consider awarding a medal to Holcomb for the killing of Beaupree. On appeal, Holcomb claims that this alleged statement establishes that his counsel was ineffective, and "deserves something from the Court to lessen its impact." The closing arguments are not part of the record on appeal, however, and therefore this enumeration is not preserved for our consideration. 9
Even if Holcomb's claim of ineffective assistance was not waived, we note that Holcomb does not suggest on appeal that his defense was at all prejudiced by the alleged instance of ineffective assistance. It is well established that a claim of ineffective assistance of counsel is evaluated under a two-prong test: (1) counsel's performance must have been deficient, and (2) the deficient performance must have prejudiced the defense. 10 Failure to establish either of these two components results in the rejection of an ineffective assistance claim. 11 Thus, assuming arguendo that this enumeration was preserved, Holcomb has failed to set forth a claim of ineffective assistance. Moreover, as stated by the trial court during its rebuke of trial counsel, the statement at issue apparently resulted from counsel's zealous and emotionally-charged representation of Holcomb. Thus, we would be disinclined to find that this is an example of a deficient performance by counsel, and therefore this enumeration is rejected.
4. During direct examination, Sumner testified that before the crimes occurred, Lopez stated that he, among others, had been "ripped off" by Gann in previous drug dealings. Lopez claims that by eliciting this information from Sumner, the State improperly introduced evidence of bad character without Lopez first having placed his character in issue, in violation of OCGA § 24-9-20(b).
"Evidence which is relevant to an issue in a case is not rendered inadmissable by the fact that it incidentally puts the defendant's character at issue." 12 As argued by the State before the trial court, the testimony complained of by Lopez, indicating that while trafficking in narcotics, Gann stole drugs from Lopez and thus owed Lopez money, is evidence of motive for the...
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