Howard v. State

• Decision Date: 28 March 2005
• Docket Number: No. S05A0269.,No. S05A0268.,S05A0268.,S05A0269.
• Citation: 279 Ga. 166,611 S.E.2d 3
• Parties: HOWARD v. The STATE. Durham v. The State.
• Court: Georgia Supreme Court

611 S.E.2d 3

279 Ga. 166

HOWARD v. The STATE.

Durham v. The State.

No. S05A0268.

No. S05A0269.

Supreme Court of Georgia.

March 28, 2005.

COPYRIGHT MATERIAL OMITTED

James Madison Allison, Jr., Douglasville, for Appellant (case no. S05A0268).

Frank C. Winn, for appellant (case no. S05A0269).

James David McDade, Dist. Atty., Hon. Thurbert E. Baker, Atty. Gen., Frank Murray Gaither Jr., Asst. Atty. Gen., Christopher Robert Johnson, Asst. Dist. Atty., for Appellee.

THOMPSON, Justice.

Appellants Michael DeAnthony Howard and Frederick Maurice Durham were jointly indicted, tried, and convicted for the murder of Darnele Smith, the kidnapping of Tomika Godwin and Calvin Fisher, as well as armed robbery, and burglary.¹ Because appellants raise similar issues on appeal, their cases have been consolidated. We affirm the judgments of conviction in both cases.

Believing that Smith was selling large quantities of marijuana from his Douglas County apartment, Durham and others devised a plan to rob the premises to obtain money and marijuana.² On the way there, they picked up Howard, who went along with the scheme. Howard and Durham entered Smith's apartment, brandishing pistols and yelling, "Where's the money, where's the weed?" The other accomplices remained in their car. At gunpoint, Howard and Durham forced Smith's roommate Fisher, and Godwin, a guest in the apartment, to lie on the floor face down. Howard searched the apartment and went into Smith's bedroom, warning him, "Don't do anything stupid." A gunshot rang out from Smith's room, and Howard walked back into the living room demanding money and marijuana of the other occupants.

Both perpetrators then forced Fisher into Smith's room where Smith lay fatally injured on the bed. Again they demanded to know where they could find the money and marijuana, and Fisher pointed to a safe in the bedroom closet. The perpetrators left the apartment a few minutes later, carrying the safe with them.

At about the same time, a neighbor, Sara Bryan, observed a white Mustang convertible with four male occupants park near Smith's apartment. She saw two of the men leave the vehicle and return several minutes later, carrying a large container which they attempted to place in the trunk. Bryan heard one of them proclaim that he "shot the motherfucker." Smith died as the result of a bullet wound from a .38 caliber handgun.

Later that day, Howard, Durham, and their accomplices drove the white Mustang to the home of a friend. They took Smith's safe into the house, broke it open, and divided its contents of marijuana and jewelry. Howard told the friend that he had taken the safe during the robbery of a home in Douglasville, in the course of which he shot a man in a bedroom.

The next day, police stopped a Mustang which matched the description that Bryan had provided. The car was occupied by the defendants' accomplices. Smith's jewelry and personal documents were found in the car, along with marijuana. Multiple fingerprints belonging to Howard and Durham were recovered from the vehicle, and the two were arrested for the crimes.

After receiving Miranda warnings, Durham gave conflicting custodial statements, finally admitting that he went to Smith's apartment for the purpose of robbing him, but denying that he was the shooter. Howard invoked his Miranda rights and refused to make a statement.

At trial, victim Godwin, as well as multiple accomplices identified Durham and Howard as the intruders. Durham testified that he entered Smith's apartment armed with the murder weapon, that Howard entered after him, that he (Durham) held Fisher and Godwin at gunpoint, and that Smith was shot in a back bedroom.

1. Appellants submit that their convictions were insufficient as a matter of law because they were based solely on the uncorroborated testimony of accomplices.

"OCGA § 24-4-8 provides that in felony cases the testimony of an accomplice is insufficient unless corroborated.... Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. [Cit.]" Wisenbaker v. State, 259 Ga. 416, 417, 383 S.E.2d 132 (1989). In the present case, victim Godwin testified that Howard and Durham were the two men she observed when they entered Smith's apartment. Her in-court identification was subjected to thorough cross-examination by counsel for both defendants, and the issue of her credibility was properly resolved by the finder of fact. See Kelley v. State, 248 Ga. 133(2), 281 S.E.2d 589 (1981). In addition there was substantial forensic evidence linking defendants to the crimes, as well as Durham's admitted participation. Accordingly, the evidence was sufficient to authorize a rational trier of fact to find Howard and Durham guilty beyond a reasonable doubt of the crimes for which they were convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Freeman v. State, 268 Ga. 181(5), 486 S.E.2d 161 (1997).

2. Defendants assert that the trial court erred in allowing the in-court identification by victim Godwin.

On cross-examination, Godwin was asked whether she was able to remember anything better today than she was able to remember at the time of the crime. She replied that her observation of defendants in court improved her memory as to their physical characteristics at the time of the shooting. She was also asked on cross-examination whether she could see their faces on the day in question; she replied that she observed them when they first entered Smith's apartment. On redirect, Godwin testified without "doubt" that the two defendants were the men who committed the crimes in Smith's apartment. No objection was made at that time. Counsel for both defendants each conducted recross-examination. After the witness was excused, defense counsel objected to Godwin's in-court identification of defendants and moved that it be stricken. In the absence of a contemporaneous objection, defendants have waived the opportunity to raise this issue on appeal. Aiken v. State, 226 Ga. 840(3), 178 S.E.2d 202 (1970); Luke v. State, 126 Ga.App. 111(1), 190 S.E.2d 85 (1972). See generally Culler v. State, 277 Ga. 717(6), 594 S.E.2d 631 (2004).

3. It is asserted that the trial court erred in denying motions by both defendants to quash or dismiss the indictment due to alleged misconduct by the State.

At a pretrial motions hearing it was established that while defendants were all housed in pretrial detention in the Douglas County Jail, co-indictee Clifton communicated to his attorney that he was being threatened and intimidated by other defendants in the case. For his protection, Clifton was briefly placed in isolation but then was returned to the general population. Thereafter, Clifton complained to the jail staff and to lead investigator Detective Wynn, that the other defendants were continuing to threaten him and demanding that he sign false affidavits exonerating them in the crimes. Defendants also warned Clifton not to disclose their demands to his counsel. In response to that information, and as a precautionary measure to ensure the safety of the jail, Detective Wynn, along with jail personnel, conducted a warrantless search of the cells of the defendants looking for the materials that Clifton had described. They confiscated some documents which corroborated Clifton's claim. Detective Wynn testified at the motions hearing that he deliberately avoided taking any documents relating to attorney-client communications; he was interested only in "coercion or threats that may be going on between [the defendants] and Clifton."

The next morning Detective Wynn took the documents to the prosecuting attorney, who did not review them, but advised Wynn to deliver them to the trial court for review. The trial court reviewed the documents and conducted an evidentiary hearing, after which it found that no privileged information had been seized. Although defendants make the unspecified claim that the confiscated documents include attorney-client privileged material, the trial court observed that the materials consisted of three affidavits (one signed before a notary public, and two in blank) along with some legal research.³ Finding no harm to the defendants, the trial court denied the motion to quash, and returned the documents to the defendants.

(a) The thrust of defendants' argument is that the State's agents intentionally deprived them of a fair trial by undermining the attorney-client relationship. To that extent, the claim is couched on Sixth Amendment grounds. In support of this argument, Durham posits that the State's actions caused him to lose confidence in his attorney, caused him to testify against the strong advice of counsel, and required his counsel to offer the testimony of co-defendant Mills, which was detrimental to his defense. Howard, similarly, makes a general claim that his confidence in his attorney has been eroded by the State's conduct, but offers no concrete support.

It is well-settled in Georgia that "`communications made [by a client] to an attorney for the purpose of being conveyed by him to others'" do not fall within the protections of the attorney-client privilege. Fowler v. Sheridan, 157 Ga. 271, 121 S.E. 308 (1924). See also Riley v. State, 180 Ga. 869, 870(2), 181 S.E. 154 (1935); Richards v. Smith, 173 Ga. 424(1), 160 S.E. 608 (1931).

In a case with similar facts, the Court of Appeals concluded that the attorney-client privilege did not apply to a document prepared by a defendant and signed by the victim prior to trial that purported to explain the crime. Osborn v. State, 233 Ga.App. 257(2)(b), 504 S.E.2d 74 (1998). Similarly, the affidavits in question in this case were prepared by the defendants and were disseminated to others; thus, they were not subject to the attorney-client privilege. The fact that these documents are not afforded privileged status negates...