Marshall v. State
| Decision Date | 28 October 2002 |
| Docket Number | No. S02A1053.,S02A1053. |
| Parties | MARSHALL v. The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Thomas J. Gustinella, Savannah, for appellant.
Spencer Lawton, Jr., Dist. Atty., Benjamin B. Reed, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Jennifer S. Gill, Asst. Atty. Gen., for appellee. SEARS, Presiding Justice.
Appellant Quincy Marshall was convicted of murder and related crimes,1 resulting in a life sentence. He appeals, alleging numerous trial court errors. Having reviewed the record, we find that the trial court abused its discretion by excluding relevant testimony concerning a witness's incarceration at the time of trial. Because the excluded testimony was cumulative of other admitted evidence, however, the trial court's error was harmless. The trial court also erred by charging the jury that it could presume intent to kill from the use of a deadly weapon. Because appellant was convicted of felony murder and not malice murder, however, the State was not required to establish an intention to kill, and therefore the improper charge was harmless error. Finding appellant's other allegations of error to be without merit, we affirm.
The evidence of record shows that appellant was shot and injured, and his friend killed, during a drive-by shooting. Appellant suspected Keo Morris of involvement in the shooting and drove to Morris's neighborhood with an accomplice. A witness observed appellant approach Morris and ask about drugs. Morris went into his house, apparently to retrieve drugs, then exited the house and entered the back seat of appellant's car. Appellant rode in the front passenger seat, and his accomplice drove. After the car traveled up the street and paused, witnesses heard a gunshot and observed appellant push Morris out of the car. Two more shots were fired from the front passenger window (where appellant sat), killing Morris as he lay beside the roadway. The car then sped away. Approximately two hours after the shooting, police knocked on the doors and windows of appellant's home and received no answer. Two hours later, a second attempt to find appellant at his home also was unsuccessful. At trial, appellant presented an alibi defense, claiming that he was at his home at the time of the shooting.
1. The evidence at trial, construed most favorably to the jury's verdicts, was sufficient to enable rational triers of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted.2 Appellant's claim that certain eyewitness testimony was not reliable is unavailing, as witness credibility is an issue for the jury to determine.3
2. The trial court erred by charging the jury that it could presume intent to kill from the use of a deadly weapon.4 However, appellant was convicted of felony murder, which, unlike malice murder, does not require the State to show an intention to kill, but only an intention to commit the underlying felony.5 Accordingly, any error associated with the giving of the improper charge was harmless.6
3. The trial court did not err in charging the jury with regard to its consideration of appellant's custodial statement. The trial court charged the jury that it should "consider with great care and caution the evidence of any statement made by the [appellant]."7 Appellant's attempt to characterize this charge as relating to his in-court testimony rather than to his custodial statement is meritless. The charge never referenced appellant's testimony, and it immediately followed the court's explanation of how the jury was to determine whether appellant's custodial statement was voluntary. Viewing the charge in context, it obviously referred to the jury's consideration of appellant's custodial statement rather than his testimony.
4. The evidence of record supports the trial court's jury charge on parties to a crime. Whether a person is a party to a crime may be inferred from that person's presence, companionship, and conduct before, during and after the crime.8 In this matter, the evidence shows that appellant and his accomplice traveled to the victim's neighborhood; that appellant helped lure the victim into a car; that appellant rode in the passenger seat of the car in which the victim was shot; that appellant shoved the victim out of the car; that the victim was shot and killed by a gun fired from the area within the car where appellant sat; and that appellant and his accomplice then fled the scene.
5. At trial, a State's witness, the victim's cousin Harris, testified on direct examination that he was initially reluctant to come forward with his knowledge of the crime because he feared retaliation from appellant and his cohorts. Harris also testified on direct examination that when he was jailed on unrelated charges after the victim's murder, he was mistakenly put in a dormitory with appellant, and appellant tried to assault him. On cross-examination, appellant's counsel asked whether, when he eventually did come forward with information about his cousin's murder, Harris was still afraid. Harris responded that because he was in jail at that time, he was less concerned about being harmed by appellant. Counsel then asked if Harris was still in jail at the time of testifying, and he responded affirmatively. The State objected to this last question and its response on relevancy grounds. The trial court sustained the objection, and the question and response were stricken from the record.
We believe that the trial court abused its discretion by striking this testimony as irrelevant. Evidence is relevant if it logically tends to prove, disprove, or shed light upon any material fact at issue in a case.9 Here, the stricken testimony was relevant in two respects. First, the stricken testimony was relevant to show witness Harris's feelings toward appellant.10 On direct examination, Harris stated that he initially did not come forward with his knowledge of the crime because he feared appellant, but explained that his fear was mitigated while he was incarcerated before trial. Harris also testified that after the victim's murder, appellant tried to assault him when the two were placed together in jail. It was a relevant inquiry on cross-examination, then, whether Harris was still incarcerated, and, hence, still fearful of appellant at the time of appellant's trial. This line of questioning would have further illuminated Harris's feelings toward appellant, which "may always be proved for the consideration of the jury."11
Moreover, this line of questioning was relevant because it logically may have shed light upon whether Harris, an incarcerated witness, received favorable treatment from the State in exchange for his testimony. This, too, is a relevant consideration for the jury in a criminal prosecution.12
Accordingly, the trial court abused its discretion by striking as irrelevant appellant's questioning about whether Harris was incarcerated at the time of trial. We conclude, however, that this discretionary abuse does not require reversal. While appellant should have been allowed this area of inquiry, the transcript shows that Harris's feelings regarding appellant were clearly established in testimony that preceded the stricken question and its response. The transcript also shows that the issue of whether Harris received favorable treatment from the State in exchange for his testimony was well explored in testimony that both preceded and followed the stricken question and response. Thus, the improperly stricken evidence was cumulative of other testimony that was admitted at trial, and its exclusion from evidence was therefore harmless.13
6. A State's witness testified that after appellant was attacked in the drive-by shooting, the home of the victim's aunt was shot at with guns. On appeal, appellant claims that the trial court erred by admitting this testimony as evidence of a prior similar transaction. However, appellant failed to raise this objection at trial and it is therefore waived on appeal.14
7. At trial, appellant testified on direct examination that he had never "owned a gun." On cross-examination, the State was allowed over objection to impeach this testimony with a certified copy of appellant's prior conviction for theft by receiving stolen property—specifically, a gun. Before allowing this evidence, the trial court considered the fact that appellant's prior conviction stemmed from an incident in which he had attempted to sell a stolen gun to an undercover DEA agent. The trial court reasoned that in so doing, appellant had willfully withheld and retained a stolen handgun with the intention of making others believe that he owned the gun and therefore could sell it. In light of these particular facts, the trial court admitted appellant's prior conviction to rebut his claim that he had never "owned a gun."
On appeal, appellant argues that because the receipt or possession of stolen property does not show ownership of that property,15 evidence that he possessed a stolen gun should not have been allowed to rebut his testimony that he had never "owned a gun." On its face, appellant's argument is not without merit, as there is a distinction between ownership and mere possession. Our review of appellant's direct testimony, however, convinces us that the prior conviction was properly allowed as rebuttal evidence. In his testimony, appellant sought to explain that even though police discovered a bulletproof "flak jacket," two bullets and an empty shell casing in his bedroom, he was not personally involved with guns. In short succession, appellant testified that he had been given the flak jacket after being shot at in an earlier incident, that he was merely holding the bullets for a friend, and that he had never personally "owned a gun," although he had fired a gun previously. Viewed in this context, it becomes clear that appellant's direct testimony was not...
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