Marshall v. State, S95A1766

• Decision Date: 29 January 1996
• Docket Number: No. S95A1766,S95A1766
• Citation: 266 Ga. 304,466 S.E.2d 567
• Parties: MARSHALL v. The STATE.
• Court: Georgia Supreme Court

Page 567

466 S.E.2d 567

266 Ga. 304

MARSHALL v. The STATE.

No. S95A1766.

Supreme Court of Georgia.

Jan. 29, 1996.

Reconsideration Denied March 1, 1996.

Murder. Seminole County Superior Court. Before Judge Stone.

Ronnie Joe Lane, Donalsonville, for Marshall.

Charles M. Ferguson, Dist. Atty., Cuthbert, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, for State.

THOMPSON, Justice.

Shone Marshall was convicted by a jury of felony murder with the underlying felony being aggravated assault; possession of a firearm by a convicted felon; and carrying a concealed weapon. He appeals from the judgment of conviction and sentences entered thereon, and from the denial of his motion for new trial. ¹

Marshall was playing cards for money with a group of men, including Gregory Wilson and Reginald Shepherd, in the parking area of a "juke joint." Although Shepherd won the game, Marshall grabbed the cash. Others in the group admonished Marshall to give the money to Shepherd. According to the testimony of an eyewitness, Marshall stepped back from the group and left the area, stating that "he will be back." When he returned fifteen minutes later, one of the men accused him of having gone home to get a gun. Marshall denied that he had a gun. The card game continued, and an argument ensued between Marshall and Shepherd, during which Marshall threatened to shoot Shepherd. Marshall then produced a gun, and stated, "Yeah, I've got a gun and I'll use it," whereupon he shot at Shepherd. The bullet grazed Shepherd's head and lodged in Wilson's head, killing him. Marshall placed the gun to Shepherd's head and again attempted to shoot him, but the weapon failed to discharge. Three eyewitnesses testified to the events.

1. Having reviewed the evidence in a light most favorable to the verdict, we conclude that a rational trier of fact could have found Marshall guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Marshall asserts that the trial court erroneously denied his Batson objection to the prosecutor's use of four of its five peremptory strikes to exclude African-American jurors. The State proffered the following reasons for rejecting these jurors: (1) A female juror was related by marriage to the defendant. (2) A male juror was struck at the request of the victim's family because he had engaged in business with the defendant and his family. (3) According to the victim's family, a male juror who denied knowing the defendant, was in fact acquainted with him, and the juror's failure to acknowledge this acquaintance was troublesome to the victim's family and to the prosecutor. (4) A female juror's grandmother was related to the defendant's grandfather.

While the prosecutor relied in part upon information provided by the victim's family he also articulated racially-neutral, case-related reasons for the exercise of his peremptory challenges. The trial court correctly determined that the State had rebutted defendant's prima facie showing of discriminatory intent. See Lewis v. State, 264 Ga. 101, 440 S.E.2d 664 (1994).

3. Marshall challenges the use of his custodial statements at trial. At a Jackson v. Denno hearing conducted prior to trial, the State established through the testimony of the investigating officers that Marshall was taken into custody on the day of the shooting, Miranda warnings were administered, and after executing a written waiver of rights, Marshall agreed to give a tape-recorded statement. On the following day, he was again advised of his Miranda rights, signed another written waiver, and agreed to talk to the officers. About an hour later, he was asked to give a second taped statement; he agreed and Miranda warnings were again administered. The officers were in agreement that Marshall was promised no benefit nor was he threatened with injury to induce his statements, and at no time did he request the assistance of counsel.

Marshall acknowledged at the Jackson v. Denno hearing that Miranda warnings had been administered, that he understood his rights, and that he agreed to sign the waiver and speak with the officers. There is no contention that he invoked his right to counsel. He submits, however, that he was "badgered" by the officers into giving the second statement, and that his responses were based on the officers' suggestions.

Crediting the officer's testimony, the trial court ruled that Marshall's statements were freely and voluntarily made. ² See Gober v. State, 264 Ga. 226(2)(b), 443 S.E.2d 616 (1994). " 'Unless clearly erroneous, a trial court's findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.' [Cit.]" Brown v. State, 259 Ga. 453(2)(b), 383 S.E.2d 882 (1989). The trial court's ruling was not clearly erroneous.

4. Any error in the trial court's failure to limit cross-examination during the Jackson v. Denno hearing to issues of voluntariness was harmless because Marshall was not cross-examined during trial concerning any testimony improperly elicited during the Jackson v. Denno hearing.

5. Marshall contends the trial court committed reversible error in failing to administer the jury oath as required under OCGA § 15-12-139. The record reveals that the appropriate oath was given during the prosecutor's opening statement, but before the introduction of any evidence, and that no objection to the procedure was interposed. Absent a showing of actual prejudice we will not reverse the conviction because opening statements were commenced prior to administering the oath, where no objection was made below. See generally Gober v. State, 247 Ga. 652(2), 278 S.E.2d 386 (1981) (failure to administer the jury oath as required by OCGA § 15-12-132 does not amount to reversible error absent a showing of actual prejudice and where no objection was made below). Compare Slaughter v. State, 100 Ga. 323, 28 S.E. 159 (1897) (total failure to administer any oath cannot be waived).

6. The court did not violate the proscriptions of OCGA § 17-8-57, when it ruled that the medical examiner and a GBI micro-analyst were experts in their respective fields. Both witnesses were questioned by the prosecutor concerning their extensive education, training and experience, and both were shown to be long-term employees of the State crime lab. Defendant declined the opportunity to voir dire the witnesses concerning their qualifications, and voiced no objection concerning the court's ruling. The court properly exercised its discretion in qualifying both witnesses as experts. See OCGA § 24-9-67; Redd v. State, 240 Ga. 753(2), 243 S.E.2d 16 (1978).

7. Marshall asserts that it was error to admit into evidence for lack of foundation a 9 millimeter shell jacket and lead core, which had been removed from the victim during autopsy, because the autopsy report referred to a .38 caliber projectile. The exhibit was identified by the crime lab micro-analyst as the bullet recovered from the victim, and the chain of custody was properly established. Any disparity in the autopsy report was explained by the medical examiner who testified that upon retrieving a projectile during autopsy, he would routinely include in his report the "generic"...