Holmes v. State
| Decision Date | 08 May 2000 |
| Docket Number | No. S00A0103.,S00A0103. |
| Citation | 272 Ga. 517,529 S.E.2d 879 |
| Parties | HOLMES v. The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
William J. Sussman, Augusta, for appellant.
Daniel J. Craig, District Attorney, Thurbert E. Baker, Attorney General, for appellee. HUNSTEIN, Justice.
Appellant Terry Dewayne Holmes was convicted of malice murder, felony murder, and aggravated assault arising from the shooting death of Rosa Barnes and wounding of Walter Thomas.1 Holmes appeals from his convictions and we affirm.
1. The evidence presented at trial authorized the jury to find that throughout the night of the crimes, appellant and his codefendants, Lorenzo Lindsey and Theodore Allen, were driving in a white Toronado loaned to appellant by a friend. They decided to commit a drive-by shooting and chose to make the residence of Rosa Barnes their target. Multiple gunshots were fired into the home, striking Barnes in the chest and killing her. Walter Thomas, who was outside the house, was wounded. After the shooting, appellant attempted to dispose of the white car but got it stuck on railroad tracks where he abandoned it. Crime scene technicians found a cartridge casing in the car which appeared to be the same type as used to shoot Barnes and Thomas. Viewed in the light most favorable to the verdict, we find the evidence was sufficient to convict appellant of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Appellant contends the trial court erred in denying his motion to sever his trial from that of his codefendants because their defenses were antagonistic. The mere fact that codefendants' defenses are antagonistic is not sufficient in itself to warrant the grant of a separate trial absent a showing of harm. Cain v. State, 235 Ga. 128, 129, 218 S.E.2d 856 (1975). In this case, even assuming, arguendo, the existence of antagonistic defenses, there has been no showing of harm. Contrary to appellant's contention, he was not harmed by the improper admission into evidence of testimony that an unidentified person at the crime scene stated that Lindsey was the shooter. See Lindsey v. State, 271 Ga. 657(2), 522 S.E.2d 459 (1999). Accordingly, the trial court did not abuse its discretion by denying appellant's motion to sever. See Chapman v. State, 263 Ga. 393(2), 435 S.E.2d 202 (1993).
3. Appellant argues the trial court erred in denying his motion for mistrial after a State's witness improperly placed his character in issue. The witness, a police investigator, testified he learned from the woman who owned the vehicle used in the shooting that she gave the vehicle to someone named Terry; the investigation then led police to appellant because another investigator recalled appellant's name from a previous investigation in that neighborhood. The witness' statement appears to have been inadvertent and conveyed to the jury only that appellant had been involved in some capacity in a previous case. It was not clear from the challenged testimony whether appellant was a suspect or witness in the previous investigation and there was nothing in the statement indicating that appellant had been convicted of a crime. Considering the nature of the statement, the evidence of appellant's guilt, and the trial court's instruction to the witness and the State to avoid further reference to the matter, we find no abuse of the trial court's discretion. See White v. State, 268 Ga. 28(4), 486 S.E.2d 338 (1997); Guess v. State, 264 Ga. 335(4), 443 S.E.2d 477 (1994).
4. Appellant raises two arguments regarding the testimony of Marcus Taylor.
(a) The State learned of Taylor's identity after the start of trial, alerted the court and defense counsel to his possible use as a rebuttal witness and informed them when the State decided to call Taylor as a witness. The trial court ordered a recess to allow defense counsel time to interview Taylor. The trial court overruled appellant's objection, raised for the first time when the State called Taylor and denied his subsequent motion for a mistrial.
We find no error in the trial court's ruling allowing Taylor to testify though he was not included on the State's pretrial witness lists. A trial court may allow a witness to testify even though not listed as a witness if the defense is provided a reasonable opportunity to interview the witness before testimony is given. Thrasher v. State, 265 Ga. 401(3), 456 S.E.2d 578 (1995).
(b) We find no error in the trial court's denial of appellant's motion to preclude Taylor from testifying based on his presence during part of the trial. A violation of the rule of sequestration effects not the admissibility of the witness' testimony but the weight and credit to be given such testimony. Johnson v. State, 258 Ga. 856(4), 376 S.E.2d 356 (1989). The jury was properly instructed in this regard.
5. We find no merit to appellant's assertion that his convictions for felony murder and aggravated assault must be reversed because they are inconsistent with his acquittal on the charges of possession of a firearm and criminal damage to property. The inconsistent verdict rule has been abolished in Georgia. Milam v. State, 255 Ga. 560(2), 341 S.E.2d 216 (1986). With regard to his conviction of felony murder, the argument is moot because that conviction was vacated by operation of law. See OCGA § 16-1-7.
6. The trial court did not err in charging the jury on the law of conspiracy. It is not error to charge on the subject of conspiracy when the evidence tends to show a conspiracy, even if a conspiracy is not alleged in the indictment. Agnew v. State, 267 Ga. 589, 591(2), 481 S.E.2d 516 (1997). Id. The evidence in this case supported the inference that appellant and his codefendants planned to commit a drive-by shooting and afterwards dispose of the vehicle. A charge on the law of conspiracy was authorized by this evidence.
7. The trial court properly charged the jury on the definition of criminal negligence as part of its general charge on the definition of a crime. The trial court specifically instructed the jury on the required elements of the offense of aggravated assault, including the instruction that in order to convict it must find either "an intention to commit injury on another person" or "that the other person was intentionally placed in reasonable apprehension of immediately receiving a violent injury." Unlike the charge in Dunagan v. State, 269 Ga. 590, 591, ...
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