Lawton v. State, S06A1541.

• Decision Date: 08 January 2007
• Docket Number: No. S06A1541.,S06A1541.
• Citation: 640 S.E.2d 14,281 Ga. 459
• Parties: LAWTON v. The STATE.
• Court: Georgia Supreme Court

281 Ga. 459

640 S.E.2d 14

LAWTON v. The STATE.

No. S06A1541.

Supreme Court of Georgia.

January 8, 2007.

Michael C. Garrett, Garrett & Gilliard, P.C., Augusta, for Appellant.

Daniel J. Craig, Dist. Atty., Thurbert E. Baker, Atty. Gen., Robin Joy Leigh, Asst. Atty. Gen., Madonna Marie Little, Asst. Dist. Atty., for Appellant.

HINES, Justice.

Following the denial of a motion for new trial, John Vincson Lawton, Jr. appeals his convictions for malice murder and possession of a firearm by a convicted felon during the commission of a crime¹ in connection with the fatal shooting of Marcus Taylor. He challenges the limitation of cross-examination of a witness, an in-court identification, the failure to grant a mistrial following alleged juror misconduct and the sufficiency of the evidence. Finding the challenges to be without merit, we affirm.²

The evidence construed in favor of the verdicts showed that Marcus Taylor was shot and killed in a well-lit Citgo store parking lot on August 11, 2002. Ronnie Andrews saw Lawton peeking around the corner of the store before Lawton bumped into Andrews on his way to where Taylor was standing. Lawton shot Taylor once in the back of the head, then stood over Taylor's body and shot him three more times. Other witnesses testified as to the shooter's appearance and clothing.

Taylor had testified against Lawton's co-defendant Lindsey in two trials for a drive-by shooting in which 83-year-old Rosa Barnes was killed. Lindsey was eventually acquitted of the shooting, but Taylor thought that Lindsey was determined to harm him. Co-defendant Hankerson testified that efforts to arrange Taylor's death began in 1997 while Lindsey was incarcerated pending the outcome of the Barnes prosecution. Although he was a friend of Taylor's, Hankerson became involved in the plot. He confirmed that Lindsey had paid Lawton $500 plus one ounce of crack cocaine to shoot Taylor. Investigators found Lawton's Dodge Intrepid parked at Hankerson's house the day after the murder. Inside the car was a jogging suit similar to that which several witnesses described as having been worn by the shooter. Hankerson identified the jacket as Lawton's. Lawton admitted that he had been at Hankerson's house the night of the murder.

Corey Bailey was incarcerated in the Richmond County Jail when he contacted investigators on August 15, 2002. Bailey reported that he had overheard Lawton telling another inmate that Lindsey had hired Lawton to kill Taylor.

1. Lawton contends that the trial court erred when it limited his cross-examination of Bailey by refusing to let him question Bailey about Bailey receiving a benefit after informing police that he overheard a jailhouse conversation in an unrelated murder case in order to show that Bailey knew that he could profit by relating to police alleged inculpatory statements by Lawton, i.e., that such evidence would call into question Bailey's veracity by revealing a self-serving motive. But the contention is wholly unavailing.

A defendant has the right to a thorough and sifting cross-examination, but the trial court has broad discretion to determine its scope and whether the sought testimony is relevant, and such discretion will not be disturbed on appeal unless it has been abused. OCGA § 24-9-64; Buttram v. State, 280 Ga. 595, 598(10), 631 S.E.2d 642 (2006); Rowe v. State, 276 Ga. 800, 804(3), 582 S.E.2d 119 (2003). And certainly the defense is entitled to a reasonable cross-examination on the question of whether the witness held a belief that he would receive a personal benefit from testifying favorably for the prosecution. State v. Vogleson, 275 Ga. 637, 639(1), 571 S.E.2d 752 (2002). That is not to say, however, that there are no limits on the cross-examiner's inquiry into the potential bias of an adverse witness; on the contrary, a trial court retains wide latitude to impose reasonable limits on such cross-examination, especially in the situation in which the interrogation may be only marginally relevant. Brown v. State, 276 Ga. 192, 194(3), 576 S.E.2d 870 (2003).

The record suggests that Bailey's relating to police of jailhouse admissions in an unrelated murder case occurred at the same time that he reported Lawton's inculpatory statements. Therefore, the timing itself belies the argument that Bailey was motivated to lie about Lawton's admissions based on past benefit from relating such statements. But more significantly, even though the trial court expressed reservation on the basis of relevance about the defense exploring any statement by Bailey regarding the unrelated murder prosecution, the record reveals that, Lawton did, in fact, cross-examine Bailey about such statement, that Bailey acknowledged it, and that Lawton questioned Bailey in great detail about any benefit he might have received. ³

2. Lawton next contends that the trial court erred when it allowed Andrews to take the witness stand a second time and make an in-court identification of him as the shooter after Andrews had already been dismissed as a witness because, by that time, Andrews's testimony was tainted by his having seen Lawton in the courtroom.

Andrews first testified and described the shooter, inter alia, as "dark-skinned";⁴ he was not asked to identify Lawton. After leaving the stand and during a break in the trial, Andrews told an investigator with the District Attorney's Office that while on the stand, he had mistakenly testified that the shooter had a dark rather than light complexion, and Lawton was indeed the man that did the shooting. During a proffer to the trial court, Andrews explained that he had made mistakes in his testimony by answering questions too quickly. He realized his mistakes because he thought about them afterwards and not because he had seen Lawton at the defense table. The State was permitted to recall Andrews and he positively identified Lawton.

A trial court has broad discretion to allow the State to recall its witness for further direct testimony, and no abuse of that discretion has been shown in this case. Ivey v. State, 277 Ga. 875, 877(4)(a), 596 S.E.2d 612 (2004).

As to the claim that Andrews's in-court identification of Lawton was tainted by his viewing of Lawton during his initial testimony, the identification is subject to the same rules of evidence, witness credibility determination, and cross-examination as affects all testimony in the trial. Id. at 877(4)(b), 596 S.E.2d 612. The defense conducted a thorough cross-examination of Andrews in an attempt to discredit his identification of Lawton. Moreover, the jury was aware that Andrews had the opportunity to see Lawton in the courtroom and could consider this fact when determining how much credibility to give Andrews's testimony. Id.

3. Lawton also contends that the trial court erred in not granting a mistrial sua sponte because of the misconduct of a juror. But the circumstances of this case did not warrant a mistrial.

During deliberations, juror Lewallen informed a bailiff that he had seen Lawton prior to the start of the trial (apparently while Lawton was in jail), had viewed Lawton's tattoo, and had made inquiries about it; Lawton told him it was an "assassin tattoo" and how many times he had been hired as an assassin. Lewallen expressed fear and concern for his safety to the bailiff. Lewallen was placed in a room by himself while the trial court, in the presence of counsel, questioned the bailiff about what had transpired. Lawton's attorney requested that...