Horne v. State

• Decision Date: 19 March 2007
• Docket Number: No. S06A1791.,S06A1791.
• Citation: 642 S.E.2d 659,281 Ga. 799
• Parties: HORNE v. The STATE.
• Court: Georgia Supreme Court

281 Ga. 799

642 S.E.2d 659

HORNE v. The STATE.

No. S06A1791.

Supreme Court of Georgia.

March 19, 2007.

Brian Lawrence Daly, Daly, Bowen & Calhoun, Savannah, for Appellant.

Spencer Lawton, Jr., Dist. Atty., Thurbert E. Baker, Atty. Gen., Edwina M. Watkins, Asst. Atty. Gen., Ann McNellis Elmore, Asst. Dist. Atty., for Appellee.

THOMPSON, Justice.

Following a jury trial, Derek Horne was convicted of malice murder and various other crimes arising from an armed robbery at a Church's Fried Chicken store, and the fatal shooting of one of its employees.¹ We agree with Horne's contention on appeal that the trial court erred in allowing the prosecution, in the presence of the jury, to propound a lengthy series of leading questions to Horne's co-indictee who refused to testify under a grant of immunity, but we conclude that, under the circumstances, the error is harmless. The remaining enumerations of error are without merit.

Viewed in a light most favorable to the verdict, the evidence established that Sean Abraham and Ammon Crawford, two managers of the Church's store, were preparing to close the store at about 5:30 a.m. on the day in question. As they set the burglar alarm and exited the building, they were forced back inside by Horne and co-indictee, Charles Hill, both of whom were carrying guns, wearing bandanas over their faces, and hoods over their heads.² Horne and Hill held the employees at gunpoint and demanded money from them. At that point, the burglar alarm sounded and all the men fled into the street. Crawford was able to get into his vehicle and drive away from the scene. Abraham attempted to escape on foot, but Horne gave chase.

Moments later, Abraham ran up to a woman seated in a parked vehicle and frantically shouted, "He's trying to kill me. Can you please help?" The woman then saw a tall, slender man round a corner and approach her car with a gun in his hand.³ He was wearing what appeared to be an army fatigue jacket with a hooded top pulled around his face, revealing his eyes. She positively identified Horne in court as the assailant. The witness saw Horne hold the gun to Abraham's head and order him away from the vehicle and into the street. As she drove away to summon help, she observed through her rear view mirror that Horne had forced Abraham onto his knees and she heard Abraham pleading for his life; a gunshot followed.

At the same time, another eyewitness in a parked vehicle heard angry conversation, and then observed a tall, dark complected, African-American man holding a gun to the head of the victim. She described the assailant as wearing a hooded garment pulled tightly around his face revealing only his eyes, nose and lips.

Horne killed Abraham with a single gunshot to the head. The only item of value in Abraham's possession was a Nokia cellular phone, which Horne appropriated.

Anthony Grant, a close friend of co-indictee Hill, was awakened later that morning by Horne and Hill at his door. Both co-defendants appeared agitated and nervous and Grant perceived that they had been in some trouble. Later Grant learned of the armed robbery/murder and he contacted the police.

Another Church's employee was familiar with Horne and Hill because they lived in the same neighborhood and attended high school together. This employee testified that Horne and Hill were regular customers at the Church's store and were usually "trouble," and that they visited the store on the two days prior to the armed robbery.

While serving a search warrant at Horne's residence, police seized an army fatigue jacket, a hooded sweatshirt, bandanas consistent with those worn during the crimes, a plastic bag containing cocaine, as well as items which had been taken in an armed robbery of Tony's Market one month earlier. Telephone records established that calls were made between Abraham's cellular phone and Horne's mother's home subsequent to the shooting.

1. Horne asserts that the trial court erred in denying his motion for a directed verdict of acquittal, claiming that the evidence was wholly circumstantial and did not eliminate every reasonable hypothesis other than his guilt. See OCGA § 24-4-6.

While the evidence was in part circumstantial, "[q]uestions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence 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." (Punctuation omitted.) Smith v. State, 280 Ga. 161, 162(1), 625 S.E.2d 766 (2006).

In addition to circumstantial evidence, there was direct evidence of Horne's guilt from an eyewitness in the parked vehicle who positively identified him as the perpetrator based upon her observations when he approached her vehicle. Although Crawford could not make a positive identification because Horne was wearing a mask in the Church's store, his description of Horne's height and build was generally similar to that of the other eyewitnesses. Following the crimes, cellular phone calls were made from Abraham's phone to Horne's mother and police seized clothing from Horne's residence that was consistent with clothing worn by the perpetrators.

We hold that the evidence was sufficient to enable a rational trier of fact to find Horne guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Horne asserts that he was denied effective assistance of trial counsel because: (a) counsel did not move to sever the theft by receiving and drug charges (both resulting from evidence seized during the search of Horne's residence) from the remaining charges on the basis that they were unrelated to the Church's murder/robbery; (b) although counsel filed a notice of alibi, he failed to offer any alibi evidence; and (c) counsel failed to file a motion to suppress evidence seized from Horne's home.

"To prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel's performance was deficient and that the deficiency so prejudiced defendant that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. Francis, 253 Ga. 782(1), 325 S.E.2d 362 (1985). The criminal defendant must overcome the strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct. [Cit.] The trial court's findings with respect to effective assistance of counsel will be affirmed unless clearly erroneous. [Cit.]" Domingues v. State, 277 Ga. 373, 374(2), 589 S.E.2d 102 (2003).

At the hearing on the motion for new trial, trial counsel testified that he made the election not to seek severance of the charges in the hope that the jury would opt to convict on the drug and theft offenses and refuse to convict on the more serious charges. The potential alibi witness was Horne's mother; however, trial counsel was concerned that she was subject to impeachment with a prior inconsistent statement which could harm the defense; and Horne ultimately instructed counsel not to call his mother to testify. Both were reasonable tactical decisions that any competent attorney would make under similar circumstances. See Walker v. State, 281 Ga. 521, 640 S.E.2d 274 (2007).

Counsel considered filing motions to challenge the search but then decided they would be frivolous. Horne has not carried his burden of showing "that the damaging evidence would have been suppressed had counsel made the motion." Parker v. State, 281 Ga. 490, 640 S.E.2d 44 (2007). Accordingly, Horne has not established that he was denied constitutionally effective assistance of trial counsel for any of the reasons asserted. Strickland, supra.

3. Horne claims that the trial court erred in admitting evidence of his gang affiliation because he was not charged with a gang-related offense or criminal gang activity.

The evidence in question consisted of writings which were taken from Horne's jail cell during a routine search, as well as papers seized during execution of the search warrant at Horne's residence. These consisted of numerous handwritten pages, some of which referenced robbery and killing using a nine millimeter weapon and receiving proceeds of the crimes. After a pretrial hearing, the court determined that the writings were relevant and admissible to show intent and that any prejudicial effect of the evidence was outweighed by its probative value.⁴ The court, however, refused the State's request to allow an expert witness to identify the material as gang-related. In addition, the court admonished the prosecutor to refrain from any reference to gang activity, and none was presented to the jury.

We agree that the evidence was properly admitted as relevant to the use of the weapon and the manner of shooting and to show Horne's intent and state of mind. Any connection to gang activity was at best collateral and could only result from speculation on the part of the jury. See Ramirez v. State, 279 Ga. 569(9), 619 S.E.2d 668 (2005). Furthermore, there is no requirement that the State charge a defendant with a gang-related offense "in order to admit otherwise relevant evidence of gang activity." Wolfe v. State, 273 Ga. 670, 674(4)(c), 544 S.E.2d 148 (2001). Accordingly, we find no abuse of discretion in admitting the writings into evidence. Id.

4. Horne submits that the trial court erred in allowing the State to offer evidence of an independent act for the purpose of showing course of conduct and bent of mind.

In accordance with Uniform Superior Court Rule ("USCR") 31.3, the State gave pretrial notice of its intent to offer evidence that Horne had committed an armed robbery of a...