Isaac v. State

• Decision Date: 05 October 1998
• Docket Number: No. S98A0862.,S98A0862.
• Citation: 269 Ga. 875,505 S.E.2d 480
• Parties: ISAAC v. The STATE.
• Court: Georgia Supreme Court

505 S.E.2d 480

269 Ga. 875

ISAAC v. The STATE.

No. S98A0862.

Supreme Court of Georgia.

October 5, 1998.

Elizabeth L. Markowitz, Fulton County Public Defender, Atlanta, for Anterian Isaac.

Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Elizabeth A. Baker, Henry M. Newkirk, Asst. Dist. Attys., Hon. Thurbert E. Baker, Atty. Gen., Elizabeth Lewis Jaeger, Asst. Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Mary Beth Westmoreland, Deputy Atty. Gen., Department of Law, Atlanta, for the State.

THOMPSON, Justice.

Anterian Isaac was convicted of felony murder, aggravated assault, and possession of a firearm during the commission of a felony, in connection with the shooting death of Michael Wilson.¹ He was tried with his co-defendants, Antonio Render² and Christie Blackburn.³ On appeal, he asserts, inter alia, that the trial court erred in (1) refusing to permit him to cross-examine a state's witness concerning an arrest for shoplifting and (2) failing to sever defendants.

1. Viewing the evidence in a light favorable to the State, as we are bound to do, Willis v. State, 263 Ga. 597, 598, 436 S.E.2d 204 (1993), we find the following: Blackburn and her sisters, Stacey and Brandi, lived in an apartment with Dianna Freeman. On the night in question, Isaac, Render and Blackburn were partying in Freeman's apartment when they decided to rob someone. Blackburn retrieved Freeman's gun and she left the apartment with Isaac and Render. As they left, they told Stacey that they were going for a "walk."

The trio encountered Wilson as he was walking along a path near the complex. They made a demand for money. When Wilson, who was homeless, said he had no money, he was shot in the shoulder. Wilson attempted to run, but he fell to the ground and was fatally shot in the head.⁴

Thirty or forty-five minutes after they left the apartment, the trio returned. Render entered the apartment while Isaac and Blackburn stayed outside. Pointing to his blood-stained shirt, Render told Stacey that he "just killed somebody."

The evidence was sufficient to enable any rational trier of fact to find Isaac guilty beyond a reasonable doubt of felony murder and possession of a firearm during the commission of a felony. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Dianna Freeman was arrested for shoplifting on the eve of trial and the State made a motion in limine to prohibit defendants from cross-examining Freeman about that arrest. In so doing, the prosecutor pointed out that he had not entered into any agreement with Freeman in exchange for her testimony. The trial court granted the motion, stating that the proper way to impeach a witness is to show a conviction for a crime of moral turpitude, not an arrest. See generally Harrison v. State, 259 Ga. 486, 489, 384 S.E.2d 643 (1989). When counsel for one of Isaac's co-defendants argued that it was "premature" for the court categorically to forbid all questions about Freeman's arrest, the court told counsel to "let the court know about it before you do it." Thereafter, Isaac made no attempt to question Freeman about her arrest.

Isaac claims the trial court erred in granting the State's motion in limine. In this regard, Isaac asserts that the fact that a separate criminal charge was pending against Freeman was relevant because it reflected on Freeman's motives for testifying.

We recognize that the motives of a State's witness for testifying are always relevant in an attack upon the credibility of the witness. See Owens v. State, 251 Ga. 313, 316, 305 S.E.2d 102 (1983). What matters is whether the witness believes she would get favorable treatment if she shades her testimony. Id. Thus, it would appear that Isaac should have been permitted to cross-examine Freeman about her arrest despite the fact that no agreement was reached between the State and Freeman concerning her testimony. Id. However, any error in this regard was not preserved for two reasons. First, Isaac did not suggest below that it was important to cross-examine Freeman about her arrest to determine if she believed she had a substantial reason to please the prosecution. Second, Isaac made no effort to cross-examine Freeman about her arrest even though the trial court left the door open to do so.

3. Christie Blackburn gave a statement to the police in which she named Isaac as the shooter. The statement was redacted to eliminate any Bruton⁵ problems and the redacted statement was admitted into evidence. During closing argument, Isaac's counsel argued that Blackburn's statement did not point to Isaac as the shooter. The State objected and offered to make Blackburn's full statement available to the jury. The objection was overruled. Thereafter, the State moved to reopen its case, stating that Isaac's counsel deliberately lied when she argued that Blackburn did not finger Isaac as the shooter. Thereupon, Isaac's counsel moved for a mistrial, arguing that the State improperly implied "that there was other evidence out there and that I was lying." The trial court overruled both the State's motion to reopen its case, and Isaac's motion for a mistrial. Later, during the State's closing argument, Isaac again objected and moved for a mistrial when the assistant district attorney said: "[Counsel for Isaac] said nowhere in [Blackburn's] statement does she finger Isaac as being the gunman. I submit to you she knows that's a lie." Although the trial court sustained Isaac's objection, it again overruled his motion for a mistrial.

Isaac asserts the overruling of his motion for a mistrial was error. We disagree. "The decision of whether to grant a motion for mistrial lies within the sound discretion of the trial judge, and his judgment will not be disturbed on appeal absent a showing of abuse of discretion. [Cits.]" Dick v. State, 246 Ga. 697, 706, 273 S.E.2d 124 (1980). See also Ladson v. State, 248 Ga. 470, 475(6), 285 S.E.2d 508 (1981). We find no abuse of discretion under the circumstances of this case.

4. It is asserted that the trial court violated OCGA § 17-8-57 when it ruled that Isaac's attempt to impeach a police officer was improper. This contention is without merit. The comments about which Isaac complains were made during the course of colloquy regarding evidentiary issues. Thus, OCGA § 17-8-57 is inapposite. Bryant v. State, 268 Ga. 664, 667(8), 492 S.E.2d 868 (1997).

5. Render testified on direct examination that both he and Blackburn spoke to Isaac on the telephone while Isaac was being held in jail. He added that, following that conversation, Blackburn telephoned Isaac's probation officer. Isaac objected and moved for a mistrial, asserting Render's testimony placed his character in issue. The trial court denied the motion but offered to give a curative instruction. Isaac declined the offer and renewed his motion for a mistrial. The renewed motion was denied and Isaac enumerates error upon that ruling. We find no error. "[A] passing reference to a defendant's record does not place his character in evidence. [Cits.]" Johnson v. State, 256 Ga. 604, 605(2), 351 S.E.2d 623 (1987). Likewise, a passing reference to "probation" does not create reversible error. Burton v. State, 263 Ga. 725, 726(2), 438 S.E.2d 83 (1994).

6. Isaac asserts that statements which Christie Blackburn made to Dianna Freeman were admitted erroneously against Isaac as the declaration of a co-conspirator. See OCGA § 24-3-5.⁶ In this regard, Isaac asserts that the fact of conspiracy was not proved before Blackburn's statements were admitted.

While it may generally be the better practice to require a prima facie case of conspiracy first to be made, before admitting evidence of the acts and declarations of one of the alleged conspirators, there is no inflexible rule to that effect. The trial court has some discretion as to the order in which testimony may be introduced; and if a prima facie case of conspiracy is shown from the whole evidence, the admitting of such testimony is not error.... If sufficient prima facie evidence of a conspiracy is introduced to authorize the admitting of evidence of acts and declarations of one of the alleged conspirators, ultimately it is for the jury to determine whether, from the whole evidence, a conspiracy has been shown; and if they find that none has been established, it is then their duty not to consider the acts and declarations of the supposed co-conspirator which has been admitted, except so far as they may affect him, if he is on trial. [Cit.]

Coleman v. State, 141 Ga. 731, 733-734, 82 S.E. 228 (1914).

The evidence adduced at trial, independent of the statement of Christie Blackburn, was sufficient to prove a conspiracy. The trial court did not err in allowing Blackburn's statement into evidence. See Fallings v. State, 232 Ga. 798(1), 209 S.E.2d 151 (1974); Gilstrap v. State, 162 Ga.App. 841(10), 292 S.E.2d 495 (1982).

7. Isaac asserts the trial court erred in denying his motion to sever. In this regard, Isaac argues that the number of defendants created confusion of the evidence and the law; that co-defendant Blackburn's statement would not have been admissible against him if he had been tried by himself; and that co-defendant Render's defense was highly antagonistic to his case.

"In a capital felony trial where the state waives the death penalty, the trial court has the discretion to grant a severance motion. The trial court should consider the likelihood of confusion of evidence and the law, the possibility that evidence against one defendant may be considered against another defendant, and the presence of antagonistic defenses. On appeal, the defendant must show clear prejudice." Linares v. State, 266 Ga. 812, 815, 471 S.E.2d 208 (1996).

We find no abuse of discretion in the trial court's denial of Isaac's motion to sever. First, the number of defendants who were tried together was not so great as to create confusion of evidence and the law....