McKenzie v. State

• Decision Date: 22 September 2008
• Docket Number: No. S08A1178.,S08A1178.
• Citation: 667 S.E.2d 43,284 Ga. 342
• Parties: McKENZIE v. The STATE.
• Court: Georgia Supreme Court

667 S.E.2d 43

284 Ga. 342

McKENZIE v. The STATE.

No. S08A1178.

Supreme Court of Georgia.

September 22, 2008.

Charles H. Frier, Atlanta, for appellant.

Paul L. Howard, Jr., Dist. Atty., Marc A. Mallon, Bettieanne C. Hart, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Benjamin H. Pierman, Asst. Atty. Gen., for appellee.

HINES, Justice.

A jury found Ricky Darrell McKenzie guilty of felony murder, aggravated assault with a deadly weapon, aggravated assault, and possession of a firearm during the commission of a felony in connection with the fatal shooting of Jessie Williams and the aggravated assault of Eric Smith. McKenzie appeals his convictions, challenging the sufficiency of the evidence, a preliminary remark to the venire, portions of the charge to the jury, and the effectiveness of his trial counsel. Finding the challenges to be without merit, we affirm.¹

The evidence construed in favor of the verdicts showed that on July 15, 2002, Jessie Williams, known on the street as "Ghost," and Ricky McKenzie, known on the street as "Slick Rick," returned to a rooming house in Fulton County, thought to be a "crack house," where they, Eric Smith, and other men were staying. Williams and McKenzie had cases of beer that they had stolen from a delivery truck. An unidentified young man purchased some of the beer from Williams, but was unable to take immediate possession and indicated he would return for it later. After the man left, McKenzie and Williams re-sold the beer. Upon returning and discovering his beer gone, the young man threatened to "shoot the whole house up" if the beer was not returned. The young man later spoke with Williams, and shortly thereafter, turned on McKenzie, pointing a handgun at him and firing one shot, which ricocheted off the wall.

Following the incident, a fight broke out between McKenzie and Williams stemming from the sale of the beer and Williams's conversation with the young man. McKenzie and Williams fought with each other using bricks and glass bottles and Williams was "roughed up or bruised." McKenzie walked away threatening Williams, "I ain't through with you, I'm still going to get you." As McKenzie ran past Smith, McKenzie muttered, "I'm going to kill that n____r."

Smith and Williams attempted to get back into the rooming house, but the door had been locked by fellow resident Ernest Carson. As they were banging on the door, Smith saw McKenzie returning, "coming through the cut with a rifle." McKenzie walked up the walkway stating, "What I tell y'all f____k n____rs." He then aimed his rifle at Smith and Williams, saying, "didn't I tell you I'm going to kill you?" Smith ran from the porch, but Williams panicked and stood frozen in place. McKenzie fired a single shot at Williams, who fell to the ground. Carson, who was still inside the rooming house, immediately went to the window after hearing the gunshot. McKenzie aimed the rifle at Smith, who was in the driveway, but lowered the weapon and fled from the scene. Williams died on the scene from a single gunshot wound to the back. McKenzie evaded police for several weeks before finally being apprehended. Both Smith and Carson testified at trial for the State and identified McKenzie as the shooter.

1. McKenzie complains that his convictions were "obtained using tainted evidence" in that State's witnesses were "either guessing, mistaken, or lying."

Specifically, McKenzie posits that Smith is a "homeless crack addict," and therefore, he must have a criminal history, and the absence of such establishes that he lied about his identity. However, McKenzie fails to provide any support for such speculation. He further urges that Smith's testimony regarding McKenzie's possession of an assault rifle and his motive to kill Williams was unreliable. But, Smith was cross-examined by the defense, and his credibility, like that of any witness, was a matter exclusively within the province of the jury. OCGA § 24-9-80; Gibson v. State, 283 Ga. 377, 379(3), 659 S.E.2d 372 (2008).

McKenzie further complains that the testimony of a detective, Balkcom, regarding the ballistics results from the State crime lab was not reliable as the detective had no first-hand knowledge about the tests, no expert from the crime lab testified about the recovered bullet, and no ballistics report was provided to defense counsel during discovery. However, such testimony was elicited by McKenzie on cross-examination, and he did not object to the detective's response; therefore, he cannot now complain about it.² Phillips v. State, 275 Ga. 595, 599(6), 571 S.E.2d 361 (2002). Here again, the credibility of the witness was a matter for the jury. Gibson v. State, supra at 379(3), 659 S.E.2d 372.

The evidence was sufficient to enable a rational trier of fact to find McKenzie 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. McKenzie contends that the trial court's preliminary remark to the members of the venire that reasonable doubt "is just basic common sense and fairness" was error because it lowered the standard of proof or misled or confused the jury with regard to the State's burden. However, as McKenzie concedes, he failed to object at trial. The failure to object to the substance of a pre-voir dire charge waives any such issue for appellate review. Bridges v. State, 279 Ga. 351, 356(9), 613 S.E.2d 621 (2005). Moreover, contrary to McKenzie's urging, OCGA § 5-5-24(c)³ is of no aid because it "concerns the charge to the jury at the end of the case. . . . This statute does not relieve the criminal defendant of the obligation to make timely objection throughout the trial." Foshee v. State, 256 Ga. 555, 557(2), 350 S.E.2d 416 (1986). In any event, at the conclusion of the trial, the trial court gave the jury thorough and correct instructions on the presumption of innocence, the State's burden of proof, and the definition of reasonable doubt.

3. McKenzie next contends that the trial court erred in its instructions to the jury on witness identification and felony murder.

(a) Citing Brodes v. State, 279 Ga. 435, 614 S.E.2d 766 (2005), McKenzie argues that the trial court erred by using the "level of certainty" charge in instructing the jury on assessing the reliability of eyewitness identification. But, "the giving of such an instruction does not require reversal when there is other significant evidence corroborating the eyewitness identification." Swanson v. State, 282 Ga. 39, 44(5), 644 S.E.2d 845 (2007). In this case, both eyewitnesses, one of whom was not a victim, identified McKenzie as the shooter, and the version of events related by each eyewitness corroborated that of the other; in addition, the forensic pathology corroborated the circumstances related by the eyewitnesses. Id. Moreover, McKenzie's flight and attempt to elude authorities support the other evidence of his culpability for the crimes. See Johnson v. State, 275 Ga.App. 161, 620 S.E.2d 433 (2005). Furthermore, the jury was instructed about the State's burden of proof regarding McKenzie's identity as the perpetrator beyond a reasonable doubt as well as other relevant considerations. Swanson v. State, supra at 44(5), 644 S.E.2d 845. Consequently, it is highly probable that the trial court's charge to the jury on level of certainty did not contribute to the verdicts, and was therefore, harmless. Id.; see also Woodruff v. State, 281 Ga. 235, 236(2), 637 S.E.2d 391 (2006).

(b) The trial court gave the jury the pattern charge on felony murder, which encompasses the elements of the felony murder statute, OCGA § 16-5-1(c).⁴ The pattern charge, in a case such as this which also involves malice murder, states:

A person also commits the crime of murder when, in the commission of a felony, that person causes the death of another human being with or without malice.

See Council of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, Sec. 2.10.20, p. 3 (4th ed. 2007). McKenzie complains that the legislative intent was to exclude "malice" from felony murder and that the inclusion of the phrase "with or without malice" in the jury instruction caused "unnecessary confusion for the jury" as demonstrated by a question asked by the jury during deliberations. But, the question cited by McKenzie concerned "legal definitions of aforethought, premeditated, [and] deliberate" in regard to the offense of malice murder, and in no manner demonstrates that the jury was confused about what constituted felony murder. See Mezick v. State, 291 Ga.App. 257, 263(3), 661 S.E.2d 635 (2008). Also, contrary to McKenzie's assertion, this Court did not in Edge v. State, 261 Ga. 865, 414 S.E.2d 463 (1992), impliedly reject the language at issue. In fact, this Court stated, "We are aware that OCGA § 16-5-1(c) authorizes a felony murder conviction `irrespective of malice.'" Edge at 866, n. 2, 414 S.E.2d 463. Indeed, the presence or absence of "malice" is irrelevant to the commission of the crime of felony murder. Knight v. State, 271 Ga. 557, 559(2), 521 S.E.2d 819 (1999). The trial court did not err in giving the pattern charge on felony murder.

4. Lastly, McKenzie contends that his trial counsel provided ineffective assistance in several respects. But, in order for him to prevail on his claim of ineffectiveness, McKenzie must show that his attorney's performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel's errors, the outcome of his trial would have been different; moreover, the strong presumption exists that counsel's conduct falls within the broad range of professional conduct. Browning v. State, 283 Ga. 528, 529(2), 661 S.E.2d 552 (2008).

(a) McKenzie first contends that trial counsel was ineffective for failing to object and move for a mistrial when Smith allegedly placed McKenzie's...