Kennebrew v. State

Decision Date12 November 1996
Docket NumberNo. S96A1557,S96A1557
Citation267 Ga. 400,480 S.E.2d 1
Parties, 96 FCDR 3994, 97 FCDR 10 KENNEBREW v. The STATE.
CourtGeorgia Supreme Court

Paul J. McCord, Asst. Public Defender, Atlanta, for Edgurado Kennebrew.

John Tom Morgan, III, District Attorney, Decatur, Michael J. Bowers, Attorney General, Christopher S. Brasher, Assistant Attorney General, Department of Law, Atlanta, Thomas S. Clegg, Desiree Sutton Peagler, Assistant District Attorneys, Decatur, for State.

ORDER

The Honorable Supreme Court met pursuant to adjournment. The following order was passed:

It is ordered that this Court's judgment of November 12, 1996, be amended to show Carley and Hines, JJ., dissenting in part and concurring in part rather than Carley, J., concurring in the judgment only as to Div. 4, and Hines, J., concurring.

HUNSTEIN, Justice.

Appellant, Edgurado Kennebrew, was convicted of malice murder and felony murder in the death of Eric Snowden. 1 He was sentenced to life in prison for the malice murder conviction and he appeals from the court's denial of his motion for new trial. We affirm in part and reverse and remand in part.

1. The evidence shows that the victim, Snowden, was using a pay telephone outside a DeKalb County convenience store when a loud vehicle containing two females pulled up. Snowden asked the occupants of the vehicle to turn off their engine so he could hear the person with whom he was talking. When the occupants did not turn off the engine, Snowden cursed and again told them to turn off the car's engine. The two women then left and went to a motel room where Kennebrew was living. There, they told Kennebrew and codefendants Keith Ryals and Sean Phillips about the incident at the convenience store. Kennebrew stated he would "handle it" and all five returned to the convenience store. After passing the convenience store and identifying Snowden, Kennebrew and Ryals approached Snowden. Kennebrew picked up the receiver of an adjoining pay telephone, turned, and shot Snowden five times with an automatic weapon, striking Snowden's cheek, chest, mid-abdomen and right calf. Snowden died as a result of the gunshot wounds. Based on the evidence, the jury was authorized to find Kennebrew 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).

2. Kennebrew contends the trial court violated his right to counsel under the Sixth Amendment to the United States Constitution. At trial, Kennebrew was represented by a public defender from the DeKalb County Public Defender's Office. A motion for new trial was filed by privately retained counsel who later withdrew from representation of Kennebrew. Thereafter, Paul McCord, a second attorney from the DeKalb County Public Defender's Office, was appointed to represent Kennebrew on his previously filed motion for new trial and on appeal if necessary. Soon after the appointment of McCord, Kennebrew informed the trial court that he wished to pursue a claim of ineffective assistance of counsel against his trial counsel (the first public defender appointed) and requested that the court appoint new counsel.

Instead of granting the motion and appointing new counsel to represent Kennebrew on all grounds of his motion for new trial, the trial court denied Kennebrew's request for new counsel and required Kennebrew to proceed pro se on his claim of ineffective assistance of trial counsel. McCord argued all other asserted grounds for new trial. After hearing argument from both parties and the testimony of Kennebrew's trial counsel, the court denied the motion for new trial on all grounds.

In Johnson v. State, 266 Ga. 775(9), 470 S.E.2d 637 (1996), we held that the trial court erred in addressing the merits of the defendant's pro se motion for new trial on the issue of ineffectiveness of trial counsel while he was still represented by trial counsel and remanded the case to the trial court "to consider the allegation of ineffective assistance under the representation of new counsel." Id. at 779, 470 S.E.2d 637. Our holding there was based on the long standing rules that a defendant does not have the right to be represented by counsel and also to represent himself and that counsel cannot be expected to assert a claim of ineffective assistance against himself. Id. See White v. Kelso, 261 Ga. 32, 401 S.E.2d 733 (1991).

The only significant distinction between Johnson and this case is that Kennebrew was represented on his motion for new trial not by his trial counsel but by another member of the same public defender's office that represented Kennebrew at trial. The result is the same, however, because counsel, whether retained or appointed, cannot reasonably be expected to assert a claim of ineffective assistance of counsel against himself or any member of his firm or office where one member represents the defendant at trial and the other represents the same defendant on a motion for new trial or on appeal. Ryan v. Thomas, 261 Ga. 661, 662, 409 S.E.2d 507 (1991). Accordingly, we hold the trial court erred in addressing the merits of Kennebrew's motion for new trial on the issue of ineffective assistance of trial counsel without first appointing new counsel. That portion of the judgment is stricken, and the case is remanded for the trial court to consider the allegation of ineffective assistance under the representation of new counsel. A direct appeal from such ruling may be filed in accordance with Johnson, supra.

3. Prior to Kennebrew's trial, a key witness for the State, Vernon Lightburn, was arrested and charged in an unrelated murder. The trial judge held that the facts surrounding the unrelated murder were not to be discussed although Lightburn could be examined about the murder charge to the extent such questioning demonstrated bias or partiality. At trial, the State asked one of its law enforcement witnesses whether Lightburn was alleged to be the "shooter" in the murder with which he was charged. Kennebrew did not object to the question, but later argued to the court that he should be allowed to inquire into the specific facts of the murder to correct the impression that because one is not the shooter, they did not commit murder. The court denied Kennebrew's request but allowed a broad range of questions pertaining to the murder charge and the circumstances of Lightburn's arrest, Lightburn's status as a middle-level drug dealer, and whether Lightburn had made any deals with the State in return for his testimony. Kennebrew contends the court impermissibly restricted his cross-examination of Lightburn.

A criminal defendant has the right to cross-examine a witness concerning pending criminal charges against the witness for purposes of exposing a witness' motivation in testifying, e.g. bias, partiality, or agreement between the government and the witness. Davis v. Alaska, 415 U.S. 308, 316-17(2), 94 S.Ct. 1105, 1110-11, 39 L.Ed.2d 347 (1974); Hines v. State, 249 Ga. 257(2), 290 S.E.2d 911 (1982). At the same time, the extent of cross-examination is within the sound discretion of the trial court. Hines, supra at 260(2), 290 S.E.2d 911. Under these facts, we find the trial court properly limited Kennebrew's cross-examination of Lightburn to relevant issues tending to show potential bias or partiality.

4. During trial, Kennebrew sought permission to impeach a co-indictee by playing for the jury an entire tape recorded statement given by the co-indictee. The trial court warned Kennebrew that if he played the entire tape recording rather than specific portions of the recording for purposes of impeachment he would be introducing evidence, thereby forfeiting his right to open and close final arguments. See OCGA § 17-8-71. Kennebrew played the entire recording and the trial court held that Kennebrew forfeited his right under section 17-8-71. Kennebrew contends the trial court erred because the tape recorded statement was not "introduced" as it was not marked for identification or formally tendered into evidence. We disagree and hold that by playing the entire recorded statement Kennebrew introduced evidence for purposes of section 17-8-71.

Where an accused offers no testimony or evidence into the trial of the case, other than his own testimony, he has the right to open and close final arguments. OCGA § 17-8-71; Scott v. State, 243 Ga. 233, 234(2), 253 S.E.2d 698 (1979). This Court has not before addressed the issue of when the presentation of oral evidence constitutes the introduction of evidence for purposes of section 17-8-71. In deciding the parameters of section 17-8-71, however, we have held that a defendant may not formally introduce evidence then later withdraw the evidence and retain the right to open and close final arguments. Freeney v. State, 129 Ga. 759, 59 S.E. 788 (1907). Similarly, we have upheld a defendant's right to open and close final arguments where the defendant merely held up documents referred to in his testimony but did not present such documents to the jury for its consideration. Park v. State, 224 Ga. 467(4), 162 S.E.2d 359 (1968).

In this action, Kennebrew played the entire tape recorded statement for the jury's consideration. Accordingly, all oral testimony contained on the tape was presented to the jury just as any other oral evidence when it was played and the jury considered the recorded testimony as any other item of evidence. Although the tape itself was not formally tendered by Kennebrew, the presentation of the tape's recorded contents to the jury was the equivalent of a formal tender of evidence divesting Kennebrew of the right to open and close final arguments. See Carter v. State, 107 Ga.App. 571(3), 130 S.E.2d 806 (1963) (paper defendant wrote on and showed jury was evidence although not introduced in the usual and regular way); Savannah Electric Co. v. Lowe, 27 Ga.App. 350(5)(a), 108 S.E. 313 (1921) (evidence not formally tendered but...

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