Lewis v. State

• Decision Date: 07 February 2005
• Docket Number: No. S04A2006.,S04A2006.
• Citation: 608 S.E.2d 602,279 Ga. 69
• Parties: LEWIS v. The STATE.
• Court: Georgia Supreme Court

608 S.E.2d 602

279 Ga. 69

LEWIS v. The STATE.

No. S04A2006.

Supreme Court of Georgia.

February 7, 2005.

Reconsideration Denied March 7, 2005.

Thomas M. West, Atlanta, Amy G. Donnella, St. Davids, PA, for Appellant.

Paul L. Howard, Jr., Dist. Atty., Marc A. Mallon, Asst. Dist. Atty., Hon. Thurbert E. Baker, Atty. Gen., Vonnetta Leatrice Benjamin, Asst. Atty. Gen., for Appellee.

Nicholas A. Lotito, Brenda Joy Bernstein, Celeste Sauls Jenks, Atlanta, for Amicus.

SEARS, Justice.

Appellant Michael Lewis appeals his conviction for malice murder,¹ resulting in a life sentence. Having reviewed the record, we conclude that the trial court erred by: (1) allowing the prosecutor to make statements of prejudicial matters that were not in evidence; (2) allowing certain hearsay testimony concerning police officers' investigation of the victim's murder; and (3) giving a jury charge that was subsequently disapproved by this Court. In light of the overwhelming evidence of appellant's guilt (which included testimony by six witnesses to the crime), we conclude it is highly unlikely that these errors contributed to the jury's verdict. Therefore, we conclude that the errors were harmless. Having found appellant's remaining enumerations to be without merit, we affirm.

In January 1997, the victim, Darrell Woods, was riding in a car driven by his wife, with his two young sons in the back seat. The family stopped at an Atlanta convenience store, and Woods's wife went into the store while he waited in the car with his children. Appellant Lewis, who was then 13 years old, approached the car and exchanged words with Woods. Appellant then produced a rifle and shot Woods two times at point-blank range, killing him as his children watched. The murder weapon and identifying clothes were later discovered at appellant's mother's residence. Appellant (then age 14) was tried as an adult under OCGA § 15-11-28(b)(2)(B), which vests the superior court with jurisdiction over children between the ages of 13 and 17 who are charged with certain crimes, including murder.

1. Having reviewed the record, we conclude the evidence was sufficient for rational triers of fact to find appellant guilty of murder.²

2. Appellant claims that OCGA § 15-11-28(b)(2)(B), which permitted the State to try him in superior court, is (1) unconstitutional on its face and as applied; (2) constitutes cruel and unusual punishment; and (3) violated due process and equal protection. The transcript reveals, however, that appellant failed to raise these constitutional challenges during trial, although his new trial motion did include the first and second of these claims. All challenges to the constitutionality of a statute must be raised at the first available opportunity, and it is "too late to raise such questions after a guilty verdict has been returned by the jury."³ Accordingly, these three enumerations are waived on appeal.

3. Appellant argues that the trial court erred by failing to sua sponte order a hearing to determine his competency to stand trial. Even where (as here) counsel does not pursue a claim of incompetency, if the evidence "indicat[es] incompetency during the trial, there [is] a duty on the trial judge to inquire into the issue of competency and hold a hearing []."⁴ In this case, appellant does not point to (nor have we found in the transcript) any instances during trial that should have signaled to the trial court that a competency hearing was necessary. Rather, appellant urges that due to his age at the time of proceedings (fourteen), it is likely that he was legally incompetent.

A defendant bears the burden of establishing incompetency to stand trial by a preponderance of the evidence, and this burden is consistent with principles of due process.⁵ The threshold for competency is easily met in most cases; it exists so long as a defendant "is capable at the time of the trial of understanding the nature and object of the proceedings going on against him and rightly comprehends his own condition in reference to such proceedings, and is capable of rendering his attorneys such assistance as a proper defense to the indictment preferred against him demands."⁶ A trial court has a sua sponte duty to inquire into a defendant's competence only when the evidence raises "a bona fide doubt" as to the defendant's competence. ⁷

In this case, nothing before us indicates that appellant was incompetent to stand trial; certainly nothing that should have signaled to the trial court that a sua sponte inquiry into competency was required. The record demonstrates that appellant understood the nature and object of the proceedings, participated in them and assisted counsel with his defense.⁸ Appellant exhibited no unusual behavior during the proceedings and has not demonstrated that his age, standing alone, rendered him incapable of understanding and participating therein. Because nothing in the record rebuts the presumption that appellant was competent, we reject his claim that the trial court erred by failing to hold a competency hearing.⁹

Similarly, we decline appellant's request that we adopt a rule mandating competency hearings for children under seventeen who face trial in superior court under OCGA § 15-11-28(b)(2)(B). As a cautionary matter, it may be prudent for trial courts to hold competency evaluations for such juveniles. However, while the majority of states require comprehensive hearings to determine the suitability of transferring a youthful offender out of juvenile court, we are aware of only two states that require competency determinations before such a transfer is allowed.¹⁰ Both those states have statutory schemes that are markedly different from that of Georgia. Any changes to Georgia's current statutory provisions for trying certain juvenile offenders as adults must come from the General Assembly, as this Court is not authorized to rewrite or revise provisions of the Code.¹¹

4. Appellant's witness Pope testified that after the murder and before his arrest, appellant came to Pope's office and used a telephone to call his mother. Pope overheard the conversation, and testified that he did not hear appellant state that he had killed the victim. On cross-examination, the prosecutor asked Pope whether he was aware that, during the time between the shooting and appellant's arrest, appellant had told his mother that: "I didn't shoot that man, mama, three times, I only shot him twice." Appellant objected, and after an untranscribed bench conference, the prosecutor's question was allowed.

Appellant claims this question was improper under OCGA § 17-8-75, which provides that:

Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in [its] discretion, [the court] may order a mistrial if the prosecuting attorney is the offender.

This proscription applies both to counsel's arguments and to comments made by counsel during trial.¹²

In response, the State argues that its question was proper because counsel is permitted to explore specific acts of bad conduct when cross-examining a character witnesses in order to test that witness's knowledge of the defendant's reputation.¹³ When doing so, counsel "must be able to show that the questions posed ... were asked in good faith and based on reliable information that can be supported by admissible evidence.... [T]here is no requirement that the evidence available be actually admitted into evidence."¹⁴ The State urges that its cross-examination of Pope was based upon a statement given by appellant's mother, in which she told police that during the phone conversation, appellant "[said] he think[s] he shot that man, but he said he only shot twice." Appellant's mother also stated that: "they say that man was shot three times. My son only shot twice. That's what he told me." These statements by appellant's mother were not admitted into evidence, but the State argues that they was admissible and thus provided a basis for its cross-examination of appellant's character witness, Pope.

The State's argument fails, however, because Pope clearly was not a character witness.¹⁵ To the contrary, Pope was a fact witness, as his testimony was limited exclusively to his name, job position, and the facts surrounding his encounter with appellant at the time of the telephone call. Accordingly, the prosecutor's question (whether Pope knew that appellant had said he shot the victim two, not three, times), which was not supported by any evidence of record, was improper under OCGA § 17-8-75, and the trial court abused its discretion by allowing it.

A violation of section 17-8-75 results in a miscarriage of justice unless a reviewing court determines that it is highly probable the improperly admitted statement did not contribute to the verdict.¹⁶ In this case, the transcript includes testimony from three eyewitnesses who told the jury that on the evening of the murder, they saw appellant aim a rifle into the victim's car and fire several shots. Two different witnesses testified that they heard the shots being fired, and then saw appellant running away from the scene; one of these witnesses testified that appellant carried a rifle as he ran. Another witness testified that immediately before the shooting, appellant said he was going to shoot the victim. After that, the witness took cover and heard several gunshots before running to the victim's car, where he discovered the victim's body.

There is no doubt that the prosecutor's comment regarding appellant's statement to his mother was both improper and prejudicial, and warranted a rebuke from the trial court. However, in light of the extraordinarily compelling evidence of appe...