Manley v. The State.Allen, S10A0136

• Decision Date: 28 June 2010
• Docket Number: S10A0137.,No. S10A0136,S10A0136
• Citation: 698 S.E.2d 301,287 Ga. 338
• Parties: MANLEYv.The STATE.Allenv.The State.
• Court: Georgia Supreme Court

287 Ga. 338

698 S.E.2d 301

MANLEY

v.The STATE.

Allen

v.The State.

Nos. S10A0136, S10A0137.

Supreme Court of Georgia.

April 9, 2010.

Reconsideration Denied June 28, 2010.

Gerard B. Kleinrock, for appellants.

Gwendolyn Keyes Fleming, District Attorney, Leonora Grant, Assistant District Attorney, Thurbert E. Baker, Attorney General, Christopher R. Johnson, Assistant Attorney General, for appellee.

MELTON, Justice.

Following a jury trial, co-defendants Steve Manley and Robert Allen appeal their convictions for the murder of Emmett Whatley.¹ For the reasons set forth below, we reverse in Case No. S10A0136 and affirm in Case No. S10A0137.

1. In the light most favorable to the verdict, the record shows that, in or around January 2007, Alexandria Phillips became friends with Whatley and visited his home. A few weeks before Whatley was murdered, Phillips had conversations with Allen, Manley, and Allen-Brown,² another co-defendant, about Whatley. She told Allen, Manley, and Allen-Brown that Whatley had a recording studio at his house and that Whatley kept cash in his home. At this point, Allen, Manley, and Allen-Brown planned to rob Whatley. On the night of February 8, 2007, Phillips saw Allen-Brown enter Allen's Lincoln Navigator SUV around midnight (Allen and Manley were already in the car), and Allen called her to get directions to Whatley's home. In a series of subsequent calls, Allen and Phillips discussed that: (1) Whatley was not home; (2) Whatley returned home with a woman; (3) Whatley and the woman left; and (4) Whatley had returned again by himself.³ Cell phone records prove that calls were made from Phillips' phone to the phones of Manley, Allen, and Whatley near the time of the murder. Other testimony showed that Whatley did have a date that night, and he returned his date to her mother's house around 2:00 a.m.

Some time after 2:00 a.m., Whatley's neighbors heard a gunshot, and one neighbor witnessed three people running from the scene to an SUV parked down the street. The next morning, Whatley was found dead in his front yard from a gunshot wound to the chest. On February 9, 2007, Phillips met with the co-defendants, and, during this meeting, Phillips received a text message from a friend that Whatley was dead. When Phillips asked the three co-defendants about this, Allen-Brown admitted to the shooting, though he said he did not mean to do it. Allen told Phillips to keep quiet about the crime, and Allen and Manley explained to her that they were going to make up a cover story that they were just trying to buy drugs from Whatley on the night in question. In March of 2007, an informant contacted police to tell them that Allen-Brown had recently admitted to him that he had shot someone. Later, during questioning by police, both Allen and Manley admitted that they went to Whatley's home to buy drugs on the night of the murder but fled when they heard gunshots. In his statement, Manley indicated that he saw a man lying on the ground after the gunshot. Both Manley and Allen implicated Allen-Brown as the shooter in their written statements.

This evidence was sufficient to enable the jury to find Manley and Allen guilty of the crimes for which they were convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Both Allen and Manley maintain that the trial court erred by narrowly restricting their cross-examination of Phillips regarding the changes in her eligibility for parole resulting from the plea and sentencing deal she entered into with the State in return for her testimony and cooperation. Based on the facts of this case, we agree, but we nonetheless find the error to be harmless in this case.

The record shows that, pursuant to her plea and sentencing agreement, Phillips pled guilty to aggravated assault and received a sentence of six years in prison for her role in the crimes against Whatley. This sentence, however, requires Phillips to serve two years in prison before being eligible for parole. See OCGA § 42-9-45(b). On the other hand, if Phillips had been convicted of Whatley's murder like the co-defendants, she would have received a mandatory life sentence, OCGA § 16-5-1(d), and she would not become eligible for parole until she had served at least 30 years in prison. OCGA § 17-10-6.1(c)(1). At trial, Allen and Manley were allowed to ask Phillips about the length of her sentence as a result of the deal, but they were not allowed to question her about any parole differential. Allen and Manley now contend that this restriction violated their confrontation rights and impermissibly prevented them from cross-examining Phillips with regard to any bias in favor of the State or motivation to help make its case.

This issue was recently considered in Mikell v. State, 286 Ga. 434, 439, 689 S.E.2d 286 (2010). In his special concurrence, Justice Nahmias carefully set forth the law in this area as follows:

In accordance with the decisions of the United States Supreme Court, this Court has explained that: “The Sixth Amendment to the [U.S.] Constitution guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’ ... The main and essential purpose of [the right of] confrontation is to secure for the opponent the opportunity of cross-examination.... The partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’ [Cit.]” State v. Vogleson, 275 Ga. 637, 638, 571 S.E.2d 752 (2002) (quoting Davis v. Alaska, 415 U.S. 308, 315-317, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)).

This principle is particularly important with witnesses who have substantial incentives to cooperate with the government. “ ‘What counts is whether the witness may be shading his testimony in an effort to please the prosecution. “A desire to cooperate may be formed beneath the conscious level, in a manner not apparent even to the witness, but such a subtle desire to assist the state nevertheless may cloud perception.” [Cit.] [Cit.]’ ” Hines v. State, 249 Ga. 257, 260, 290 S.E.2d 911 (1982) (quoting Greene v. Wainwright, 634 F.2d 272, 276 (5th Cir.1981)). Accordingly, “[d]efense counsel is entitled to a reasonable cross-examination on the relevant issue of whether [a] witness entertained any belief of personal benefit from testifying favorably for the prosecution.” Vogleson, 275 Ga. at 639 .

We have also repeatedly held, however, that trial courts: “retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.” Vogleson, 275 Ga. at 639 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)).

In seeking to reconcile the broad right to cross-examine cooperating witnesses and the trial court's broad discretion to regulate cross-examination, we have considered the extent of cross-examination allowed on other subjects and have also focused on whether the defendant was seeking to elicit “objective evidence” of the disparity between the sentence the witness will get as a result of his cooperation and the sentence he faced had he not cooperated, as opposed to the witness's mere hope for or speculation about the possibility of a lower sentence. See, e.g. Vogleson, 275 Ga. at 638 (objective evidence allows the jury to “determine whether the witness is biased to a degree that affects credibility and is an appropriate subject of inquiry”); Howard v. State, 286 Ga. 222, 225(2), 686 S.E.2d 764 (2009) (question is whether the witness “obtained a concrete benefit for her testimony by which an objective comparison could be made to her potential sentences”); Hodo v. State, 272 Ga. 272, 273, 528 S.E.2d 250 (2000) (cross-examination regarding possible sentence if witness were ever charged for criminal conduct admitted in his testimony properly excluded as “conjecture”).

Our cases have mostly involved such disparities in the maximum sentences the witness faced, where the analysis is usually straightforward: compare the total maximum statutory sentence for the charge(s) the witness originally faced with the total maximum sentence for the charge(s) the witness faces after his agreement with the State. See, e.g. Vogleson, 275 Ga. at 637 (witness's guilty plea reduced his maximum sentence exposure from 25 years to 10 years).

The same reasoning applies, however, to a concrete disparity between the witness's minimum sentences resulting from the charging decisions made by the district attorney in exchange for the witness's cooperation and testimony for the State. The question then is not a change in the last date that the witness would get out of prison, based upon the maximum sentence the trial court did or could have imposed on the relevant charges, but rather a change in the first date when the witness would be eligible to leave prison, based upon parole eligibility pursuant to the relevant charges. The analysis of such disparities may be more complicated, both because determining parole eligibility often requires looking beyond the terms of the charged offenses to consider the statutes, rules, and practices relating to parole, see, e.g., OCGA §§ 17-10-6.1, 17-10-7, 42-9-39, 42-9-40, and because the Board of Pardons and Paroles is independent of the district attorneys and generally has broad discretion to grant or deny parole, as is correctly noted in Hewitt [ v. State, 277 Ga. 327, 588 S.E.2d 722 (2003) ]. See also Daker v. Ray, 275 Ga. 205, 206, 563 S.E.2d 429 (2002) (parole guidelines established and used by the Parole Board “simply establish an initial date of eligibility for parole, and the ultimate grant or denial of parole to a

prisoner who is eligible for parole remains a discretionary matter for the

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