Morgan v. State

• Decision Date: 13 January 2003
• Docket Number: No. S02A1323.,S02A1323.
• Citation: 575 S.E.2d 468,276 Ga. 72
• Parties: MORGAN v. The STATE.
• Court: Georgia Supreme Court

575 S.E.2d 468

276 Ga. 72

MORGAN v. The STATE.

No. S02A1323.

Supreme Court of Georgia.

January 13, 2003.

B.M. Martin & Associates, B. Morris Martin, Nancee E. Tomlinson, Jasper, for appellant.

Roger G. Queen, Dist. Atty., William B. Britt, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Madonna M. Heinemeyer, Asst. Atty. Gen., for appellee. BENHAM, Justice.

Appellant Jamie Ray Morgan was convicted of malice murder in the April 18, 2000, shooting death of Jeremiah Anderson in a Gilmer County fast-food restaurant. He was also found guilty of possession of a firearm during the commission of a crime, possession of marijuana with intent to distribute, and two counts of witness intimidation.¹ He appeals the judgment of conviction, contending that a number of legal errors were committed by the trial court and that he was denied effective assistance of counsel. We disagree and affirm.

1. Eyewitnesses saw appellant shoot the victim in the head, then stand over the fallen victim and shoot him in the head again. Stippling surrounding the entrance wounds established that both shots were fired from a distance of less than one foot. Appellant claimed he shot the victim because he had been told the victim had threatened to kill appellant and appellant believed the victim was carrying a weapon under his rolled-up jacket. No weapon was found, witnesses saw no weapon in the victim's hands, and witnesses testified the victim carried the rolled-up jacket under his arm like a football, and not draped over his hand as appellant asserted. In a post-arrest statement to a GBI agent, appellant admitted having shot the victim and having tossed the weapon out the car window. With appellant's help, the agent found the weapon and a firearms expert testified the gun recovered was the weapon that had fired the bullets removed from the victim's head.

The State presented evidence that appellant shot the victim because the victim had provided information to law enforcement authorities about appellant and illegal drug activity after the two had been stopped in appellant's car and marijuana and methamphetamine were discovered. Based on the victim's information following that stop, a search warrant had been executed on March 29, 2000, at the Gilmer County apartment of appellant and his girlfriend, and the search resulted in the seizure of six bags of marijuana. Two deputy sheriffs testified that, in separate statements, appellant told them the marijuana found in the apartment belonged to him, not his girlfriend. Appellant was indicted for possession of marijuana with intent to distribute and possession of more than one ounce of marijuana. The victim's identity as informant was disclosed in the search warrant application which was attached to the copy of the search warrant left at the apartment. Several witnesses testified appellant had threatened the victim with physical injury for "ratting" on him.

The evidence was sufficient to authorize a rational trier of fact to conclude that appellant was guilty beyond a reasonable doubt of malice murder, possession of marijuana with intent to distribute, possession of a firearm during the commission of a crime, influencing a witness by communicating a threat of injury, and influencing a witness by using physical force to prevent the witness from testifying. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The "sufficiency of the evidence" test enunciated in Jackson v. Virginia, supra, is also used when an appellate court reviews the trial court's denial of a defendant's motion for directed verdict of acquittal. McClellan v. State, 274 Ga. 819(1), 561 S.E.2d 82 (2002). Appellant contends he was entitled to directed verdicts because the State did not establish the marijuana found in his apartment belonged to him and because the State did not disprove beyond a reasonable doubt his justification defense. After reviewing the evidence, we conclude the State met its burden of proof and the trial court did not err in denying the motion. Id.

2. Appellant contends his right to a fair and impartial jury, guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section I, Para. XI of the Georgia Constitution, was compromised by the giving of a Christian invocation by a minister before the jury-selection process. Appellant asserts that the delivery of a prayer before prospective jurors results in a verdict reached by reliance on something other than the evidence presented to the jury and is "tainted by the passions inflamed by religion." The record in the case at bar does not disclose the contents of the prayers or identify the person delivering it.²

In a case involving a similar factual setting, this Court determined that "[a]n invocation is not prejudicial per se, and the defendant has not shown that this particular invocation was prejudicial." Isaacs v. State, 259 Ga. 717, 729(18), 386 S.E.2d 316 (1989). In reviewing the denial of Isaacs's petition for writ of habeas corpus filed in federal court, the U.S. Court of Appeals for the Eleventh Circuit recently noted it was unaware of any precedent from the United States Supreme Court which held that the giving of a prayer at trial is a per se violation of the U.S. Constitution. Isaacs v. Head, 300 F.3d 1232, 1252 (11th Cir.2002). References to religion that invite jurors to base their verdict on matters not in evidence should be avoided in prosecutorial argument (Carr v. State, 267 Ga. 547, 556(7)(c), 480 S.E.2d 583 (1997)) and in the trial court's remarks to the jury. Jones v. State, 270 Ga. 25, 29(9), 505 S.E.2d 749 (1998). Without the contents of the prayer, however, we are unable to say that such a transgression occurred in the case at bar. See Isaacs v. State, supra, 259 Ga. at 729, 386 S.E.2d 316. Accordingly, we conclude that appellant's assertion of error is without merit.

3. Appellant maintains the trial court erred when it declined to sever the two counts of the indictment charging him with possession of marijuana from the murder and witness-influencing charges. The marijuana charges stem from the search of appellant's apartment pursuant to information provided by the victim, and the prosecution of those charges was the official proceeding involved in the witness-influencing charges. "Where, as here, two or more charges are joined because they constitute a series of acts connected together, severance of the charges is within the trial court's sound discretion." Hammond v. State, 273 Ga. 442, 446(3), 542 S.E.2d 498 (2001) (charges of aggravated assault and terroristic threats concerning wife could be tried with charges of murder of son); Camphor v. State, 272 Ga. 408, 411(3), 529 S.E.2d 121 (2000) (aggravated stalking of former wife could be tried with murder of former wife's boyfriend); Wilcox v. State, 271 Ga. 544, 545(2), 522 S.E.2d 457 (1999) (possession of cocaine with intent to distribute could be tried with murder charges). Inasmuch as it is unlikely that the murder would have occurred but for the marijuana charges, the marijuana charges were inextricably bound to the murder and witness-influencing charges. Hammond v. State, supra; Camphor v. State, supra. Accordingly, the trial court did not abuse its discretion when it declined to sever the offenses for trial.

4. Appellant contends he is entitled to a new trial because the trial court denied his pre-trial motion for change of venue. Attached to the motion as evidence of prejudice within the community were copies of articles published by the local newspaper reporting the occurrence of the crime, the arrest of suspects, and the court dates of the arrestees, as well as a copy of the victim's published obituary and a published commemoration of his death a year later, and copies of two letters to the editor regarding continued support of the restaurant where the homicide took place. At the hearing on the motion, the trial court found the articles not inflammatory and agreed to re-visit the issue should voir dire establish that a juror could not be fair and impartial.

The trial court has the discretion to grant a change of venue and its discretion will not be disturbed absent an abuse of that discretion. [Cit.] "In a motion for a change of venue, the petitioner must show (1) that the setting of the trial was inherently prejudicial or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible. [Cit.]" We cannot say the trial court abused its discretion when appellant: (1) made no showing that the setting of the trial was inherently prejudicial, i.e., that any publicity was factually incorrect, inflammatory, or reflective of an atmosphere of hostility; and (2) failed to demonstrate that [he] could not receive a fair trial due to the prejudice of individual jurors since [no] potential jurors were excused for having a fixed opinion about appellant's guilt... [cit.] [and the remaining prospective jurors who had been exposed to pre-trial publicity about the case indicated they could render a decision based on the evidence].

Eckman v. State, 274 Ga. 63, 68(4), 548 S.E.2d 310 (2001). See also McWhorter v. State, 271 Ga. 461, 462(2), 519 S.E.2d 903 (1999).

5. Appellant sees error in the trial court's denial of his motion to sequester the jury. "The decision to sequester jurors in a noncapital case is a matter within the sound discretion of the trial judge. OCGA § 15-12-142. Absent a showing of abuse of discretion, the trial court's decision will not be overturned." Colantuno v. State, 262 Ga. 830, 831(1), 426 S.E.2d 563 (1993). For purposes of jury sequestration, a murder trial in which the death penalty is not sought is a noncapital case. Peppers v. State, 261 Ga. 338, 340(4), 404 S.E.2d 788 (1991). The trial court does not abuse its discretion in failing to sequester a jury in a noncapital case when, as here, the court instructs the jury not to discuss...