Jackson v. State

• Decision Date: 28 June 2004
• Docket Number: No. S04A0553, No. S04A0733.
• Citation: 599 S.E.2d 129,278 Ga. 235
• Parties: JACKSON v. The STATE. Lamar v. The State.
• Court: Georgia Supreme Court

599 S.E.2d 129

278 Ga. 235

JACKSON v. The STATE.

Lamar v. The State.

Nos. S04A0553, S04A0733.

Supreme Court of Georgia.

June 28, 2004.

Reconsideration Denied July 29, 2004.

Martin G. Hilliard, for appellant (case no. S04A0553).

Jackson & Schiavone, Steven L. Sparger, Savannah, for appellant (case no. S04A0733).

Spencer Lawton, Jr., Dist. Atty., Margaret E. Heap, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Andrette Watson, Asst. Atty. Gen., for appellee.

HUNSTEIN, Justice.

Lavoris Jackson and his cousin Octavious Lamar were jointly tried and convicted of malice murder, felony murder, aggravated assault, possession of a firearm during the commission of a felony and giving a false name, arising out of the shooting death of Jeffrey Robinson. Jackson and Lamar filed separate motions for new trial and separate notices of appeal.¹ This opinion consolidates these appeals.

1. The jury was authorized to find from the evidence adduced at trial that while Robinson and his cousin Theria Outen were playing cards with two other men at a table located in the stairwell of Outen's apartment, Lamar approached and insisted on changing the game. Lamar and Robinson argued and the confrontation ended with Lamar telling Robinson he would "f* * * him up," and threatening that he would "... be back. I'm going to call my people and we are going to straighten this." Lamar and Jackson were seen together after Lamar's confrontation with Robinson and prior to the shooting. Soon thereafter, Jackson walked into the apartment complex, spoke with Outen and then disappeared. Lamar arrived just a few minutes later and called out to Robinson. Lamar then threw a beer bottle at Robinson and Robinson hit Lamar inflicting a cut on Lamar's head. While Robinson and Lamar were standing "face to face," Jackson snuck up behind Robinson, placed a gun to the back of Robinson's head and pulled the trigger several times. The gun malfunctioned and Robinson ran away. Jackson followed and shot Robinson five times hitting him in the arms and legs. Outen witnessed Lamar run "around the other side [of the building] like to cut [Robinson] off" as Jackson pursued Robinson from the other direction. According to the medical examiner, Robinson died that evening as a result of "massive blood loss which arose from a total of five gunshot wounds to the body." Jackson and Lamar fled immediately after the shooting. They were arrested several weeks later after giving false names to the police. Jackson told the police that he was at a wedding at the time of the shooting. Lamar testified that he was involved in a "bottle throwing" incident but denied being aware of any gunfire or having an earlier altercation with Robinson.

We find the evidence adduced against Jackson sufficient to enable a rational trier of fact to find him guilty 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). Likewise, construing the evidence in the light most favorable to uphold the jury's verdict, the evidence adduced against Lamar was sufficient to enable a rational trier of fact to find him guilty beyond a reasonable doubt as a party to the murder, aggravated assault and firearm possession charges. See OCGA § 16-2-20(b). We have repeatedly held that

A person need not directly commit a crime to be charged and convicted of that crime, for every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. A person is concerned in the commission of a crime only if he: ... (3) intentionally aids or abets in the commission of the crime; or (4) intentionally advises, encourages, hires, counsels, or procures another to commit the crime.

(Citation and punctuation omitted.) Jordan v. State, 272 Ga. 395, 396(1), 530 S.E.2d 192 (2000). Mere presence at the scene of a crime and mere approval of the criminal act are not sufficient evidence to establish that the defendant was a party to the crime. Id. Proof that the defendant shares a common criminal intent with the actual perpetrator is necessary and "may be inferred from conduct before, during, and after the commission of the crime.[Cit.]" Sands v. State, 262 Ga. 367, 368(2), 418 S.E.2d 55 (1992). Moreover, evidence of the defendant's conduct before, during, and after the commission of the criminal act will authorize the defendant's conviction for commission of the criminal act if a jury could infer from the conduct that the defendant intentionally encouraged the commission of the criminal act. Jordan v. State, supra.

Evidence that Lamar initiated the altercation with Robinson, threatened to bring back "his people," met up with Jackson, returned to the scene only minutes after Jackson, participated in distracting Robinson before the shooting, chased after Robinson after the gun misfired, and subsequently fled, provided sufficient evidence to enable a rational trier of fact to find him guilty beyond a reasonable doubt as a party to the murder, aggravated assault, and firearm possession charges. Jackson v. Virginia, supra; Eckman v. State, 274 Ga. 63(1), 548 S.E.2d 310 (2001).

2. Appellants' convictions for the malice murder of Jeffrey Robinson and possession of a firearm during the commission of Robinson's murder and giving a false name to police after his murder are affirmed. However, the sentences for aggravated assault must be vacated. Baines v. State, 276 Ga. 117(4), 575 S.E.2d 495 (2003); Fitzpatrick v. State, 268 Ga. 423(1), 489 S.E.2d 840 (1997).

3. Appellants contend that they are entitled to a new trial because a portion of the trial was conducted outside of their presence. The record reveals that appellants were not present at an in-chambers conference when the court, the prosecutor, and both trial counsel participated in a discussion about entering a nolle prosequi of the aggravated assault with a beer bottle charge pending against Lamar. Although it is undisputed that appellants were not present at the in-chambers conference where the issue was first discussed, the record reflects that they were present during a conversation that took place immediately afterwards where the issue was raised and discussed by counsel and the court. "It is well-established that a defendant has a constitutional right to be present at every stage of the proceedings materially affecting his case, Ga. Const. Art. I, Sec. I, Par. XII, and that the right to be present may be waived if the defendant later acquiesces in the proceedings occurring in his absence. [Cits.]" Wilson v. State, 274 Ga. 637, 639(3), 555 S.E.2d 725 (2001). Pretermitting whether Jackson had a right to be present at the conference involving an issue directed only to Lamar, we find that appellants acquiesced in the proceedings when their counsel made no objection and appellants thereafter remained silent after the subject was brought to their attention. See id.; Holsey v. State, 271 Ga. 856(5), 524 S.E.2d 473 (1999).

4. Appellants contend that the trial court erred in denying their motion to excuse the jury array when Juror Brands commented in the presence of the other prospective jurors "while these gentlemen may have allegedly killed somebody, they've definitely ruined my day, so I do believe there's an attitude. If it's not a death penalty case, there's taxpayers' money in jail." The court excused Juror Brands but refused to excuse the other prospective jurors. Relying on Moore v. State, 156 Ga.App. 92(1), 274 S.E.2d 107 (1980), appellants contend that Juror Brands's comments required the disqualification of the entire panel, not just Juror Brands. A defendant has a right to a jury that is free from prejudgment or fixed opinion, Sharpe v. State, 272 Ga. 684(5), 531 S.E.2d 84 (2000), but where a prospective juror's comments do not link a defendant with criminal activity, or characterize the defendant as a criminal, the entire jury panel does not have to be excused. Roberts v. State, 259 Ga. 441(2), 383 S.E.2d 872 (1989). Furthermore, appellants cannot complain about the failure of the trial court to make inquiry of the remaining prospective jurors about the influence of Juror Brands's remark where they failed to request this undertaking by the court. Id.

5. Appellants assert they were denied effective assistance of counsel based on counsel's decision to request conflicting jury instructions and for failing to object to prejudicial statements made by the prosecutor during closing argument. Jackson complains of his trial counsel's failure to seek to have his trial severed and his failure to request a charge on false swearing by a witness. Lamar contends that his trial counsel was deficient in failing to make an adequate investigation, failing to show the victim had cocaine in his system, failing to object to the introduction of a photograph of the victim in a military uniform, and failing to inform the jury that Lamar was not initially indicted for Robinson's murder. In considering appellants' claims that their counsel's assistance at trial was so defective as to require reversal of their convictions, they must show...