Kinsman v. State

• Decision Date: 15 February 1989
• Docket Number: No. 45812,45812
• Citation: 376 S.E.2d 845,259 Ga. 89
• Parties: KINSMAN v. The STATE.
• Court: Georgia Supreme Court

Page 845

376 S.E.2d 845

259 Ga. 89

KINSMAN v. The STATE.

No. 45812.

Supreme Court of Georgia.

Feb. 15, 1989.

Reconsideration Denied March 29, 1989.

H. Haywood Turner III, Columbus, for Ronald Leroy Kinsman.

William J. Smith, Dist. Atty., Consolidated Municipal Government Center, Columbus, J. Gray Conger, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Paula K. Smith, Asst. Atty. Gen., for the State.

BELL, Justice.

Ronald Leroy Kinsman was convicted by a jury in Muscogee County of malice murder, armed robbery and theft by taking. He was sentenced to death. ¹

Bruce Keeter was an assistant manager of a Hardee's fast-food restaurant in Columbus. He was last seen alive at 1:20 a.m. on September 14, 1986, at the restaurant, where he remained by himself to prepare the cash registers for the next business day. He was reported missing by his mother when he failed to return home, and his body was discovered inside the restaurant shortly after 6:00 a.m. Almost $400 was missing from the safe. The victim's car was found abandoned next to an interstate highway, with its passenger-side window broken out.

On December 4, 1986, Columbus police talked to Randy Hubbard, a friend of Kinsman. Hubbard stated to the police that Kinsman had admitted killing a man at a Hardee's restaurant that Kinsman and two others had robbed of $400. At the request of the police, Hubbard telephoned Kinsman. This conversation was recorded. As the two discussed committing another robbery, Kinsman made incriminating references to the robbery of the Hardee's and the murder of Keeter.

Kinsman and the other two--Patterson and Morgan--were arrested. Kinsman was interrogated, and, after learning that Morgan had confessed, admitted being a party to the murder and armed robbery. However, he now claimed that Patterson had killed the victim. He admitted driving the victim's car to where it was abandoned, explaining that he had broken the window to retrieve the keys he had left in the car, because he remembered his fingerprints were on them.

1. The evidence supports the conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. "Death qualification" of prospective jurors is not improper, and the trial court's death-qualification rulings were "within the deference due the trial judge's determination." Jefferson v. State, 256 Ga. 821, 824, 353 S.E.2d 468 (1987). Kinsman's voir dire examination was not improperly restricted. Curry v. State, 255 Ga. 215(2)(b), 336 S.E.2d 762 (1985).

3. The trial court's reference to "guilt or innocence" (see Childs v. State, 257 Ga. 243(8), 357 S.E.2d 48 (1987)) could not have misled the jury where clear instructions were given that the defendant was presumed innocent and that unless satisfied of the defendant's guilt beyond a reasonable doubt, the jury should find the defendant "not guilty."

4. The court did not err by admitting photographs of the murder victim. Hicks v. State, 256 Ga. 715(13), 352 S.E.2d 762 (1987).

5. A paperweight recovered from the apartment shared by Kinsman and co-defendant Morgan was identified by its owner as one stolen from his residence along with a .38 caliber pistol that was the likely murder weapon in this case. Contrary to the defendant's contention, the identification of the paperweight was not conjectural, and the court did not err by admitting it in evidence.

6. Kinsman testified on direct examination that Patterson forced him to accompany him. Kinsman said he was afraid of him because Patterson had "killed before" and was "capable of doing anything." He testified that Patterson killed the victim. Kinsman stated that, as for himself, he did not "have the heart to do nothing like that.... I don't even shoot deer, and that's supposed to be a game."

In rebuttal, the state proved that ten years previously Kinsman had voluntarily accompanied Patterson in the commission of murder and armed robbery, and that Kinsman had admitted shooting "at" the victim. There, as here, Kinsman shared in the proceeds of the robbery.

Evidence concerning the previous crime was properly admitted. Frazier v. State, 257 Ga. 690(16), 362 S.E.2d 351 (1987).

7. Kinsman contends his cross-examination of state's witness Randy Hubbard was impermissibly restricted in two respects.

(a) Hubbard testified on direct examination that he had talked to "my attorney" before trial. On cross-examination, Kinsman asked if this attorney was "the former district attorney that used to put you in jail?" The state objected on the ground that the defendant's question was "an improper impeachment, if that's what that's supposed to be." The defendant made no attempt to explain the purpose or the relevance of the question, and the court did not err by sustaining the state's objection.

(b) Hubbard had several criminal charges pending against him. The trial court allowed Kinsman to question Hubbard about these charges, but when Hubbard denied that one of the charges was pending, the court refused to allow the defendant to offer in evidence a document allegedly proving the pendency of the charge. The court reasoned that a witness may be impeached only by proof of a conviction for a crime involving moral turpitude, and not by proof merely that he has been arrested. See, e.g., Strickland v. State, 166 Ga.App. 702, 305 S.E.2d 434 (1983).

It is true that an attempt to impeach a witness on the ground that he is a criminal must be supported by a conviction; that he merely has been charged with a crime is no proof that he is a criminal. But that is not to say that pending criminal charges are not relevant. On the contrary, the partiality of a witness may be exposed by proof that he hopes to benefit in related cases from his cooperation with the prosecution in this case. Such partiality "is subject to exploration at trial, and is 'always relevant as discrediting the witness and affecting the weight of his testimony' [Cit.]" Hines v. State, 249 Ga. 257, 260, 290 S.E.2d 911 (1982) (quoting Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974)).

Here, the trial court allowed the defendant to cross-examine Hubbard about his pending criminal charges, but, applying the rule discussed in Strickland, supra, in the wrong context, the court refused to allow the defendant to prove that Hubbard incorrectly denied one of the charges. ² Cf. Jones v. State, 257 Ga. 753(1)(a), 363 S.E.2d 529 (1988). However, Kinsman was not otherwise limited in his cross-examination about pending charges. Hubbard admitted that charges were pending against him and admitted that he had lied in the past and that he was "quite capable" of telling a lie. Moreover, Hubbard did not deny the existence of the disputed charge. He claimed it had been disposed of and he had "paid" his "debt" on that charge. The jury's evaluation of Hubbard's credibility would not have been altered significantly if the defendant had been allowed to show the disputed charge was still pending.

In view of the foregoing, conjoined with the overall strength of the prosecution's case, we conclude that any error was harmless beyond a reasonable doubt. See Delaware v. Van Arsdall, 475 U.S. 673, 681-684, 106 S.Ct. 1431, 1436-1438, 89 L.Ed.2d 674 (1986).

8. The trial court did not err by admitting over a hearsay objection out-of-court statements made by co-conspirator Morgan during the pendency of the conspiracy. Castell v. State, 250 Ga. 776(1), 301 S.E.2d 234 (1983). We find no other instance in the trial where inadmissible hearsay was admitted over the defendant's objection, and, hence, find no denial of his right to confrontation of witnesses.

9. The trial court did not err by allowing a state's witness to testify, even though the witness was not on the list furnished the defendant pursuant to OCGA § 17-7-110. The defendant made no motion to exclude the witness, and the court granted the defendant's request to interview the witness before his testimony. The testimony of the witness was very brief. Simmons v. State, 249 Ga. 860(4), 295 S.E.2d 84 (1982). There is no merit to the defendant's present contention that he was denied effective assistance of counsel by the court's ruling.

10. That Kinsman killed an innocent victim for money was relevant to the issue of malice. See OCGA § 16-5-1. The prosecutor was not guilty of misconduct by arguing to the jury that the victim was just "doing his job" and "trying to earn a living" and was "killed for no other reason than money ... and not all that much money at that." Cf. Holiday v. State, 258 Ga. 393(11)(f), 369 S.E.2d 241 (1988).

11. The defendant did not object at trial to the prosecutor's closing argument and, having reviewed the complaints he now makes on appeal, we conclude the prosecutor's arguments "did not result in the sentence of death being imposed under the influence of passion, prejudice, or any other arbitrary factor." Davis v. State, 255 Ga. 598, 611(17), 340 S.E.2d 869 (1986). See also, Hicks v. State, 256 Ga. 715(23), 352 S.E.2d 762 (1987).

No reversible error occurred during the prosecutor's opening statement. Referring to "applicable law" does not, as the defendant contends, violate the proscription against "reading law" not covered by the court's charge. Conklin v. State, 254 Ga. 558, 570-71, 331 S.E.2d 532 (1985).

There is no merit to Kinsman's contention that certain portions of the state's cross-examination of him amounted to prosecutorial misconduct. See Skipper v. State, 257 Ga. 802(3), 364 S.E.2d 835 (1988).

12. The tape-recorded conversation between the defendant and Hubbard corroborated Hubbard's testimony, and its relevance justified its admission in evidence despite a brief reference by Hubbard to cocaine. References by both persons to their homosexuality merely informed the jury of something it had already been made aware of.

13. The rule which prohibits an expression or intimation of opinion by the trial court "as to what has or has not been proved," OCGA §...