Morrill v. State

• Decision Date: 15 February 1995
• Docket Number: No. A94A2369,A94A2369
• Parties: MORRILL v. The STATE.
• Court: Georgia Court of Appeals

Page 796

454 S.E.2d 796

216 Ga.App. 468

MORRILL v. The STATE.

No. A94A2369.

Court of Appeals of Georgia.

Feb. 15, 1995.

Reconsideration Denied March 2, 1995.

Certiorari Denied May 15, 1995.

Joseph J. Drolet, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Shawn E. Lagrua, Leonora Grant, Asst. Dist. Attys., Atlanta, for appellee.

JOHNSON, Judge.

Police officer Brett Morrill was indicted for participating in a crime ring, made up of law enforcement officers and others who committed burglaries and robberies in the metropolitan Atlanta area. The state jointly tried Morrill and two co-indictees, deputy sheriff William Moclaire and Troy Endres, before a jury in Fulton County. The jury returned a verdict finding Morrill guilty of three counts of burglary, one count of armed robbery, two counts of aggravated assault and one count of possession of a firearm during the commission of a crime. The jury also found Moclaire and Endres guilty of various offenses. The court entered judgments of conviction against all three defendants on the jury verdicts. The court merged Morrill's two aggravated assault convictions into his armed robbery conviction and sentenced him to serve a total of 25 years in prison. Moclaire and Endres jointly appealed from their convictions, which this court affirmed. See Moclaire v. State, 215 Ga.App. 360, 451 S.E.2d 68 (1994). Morrill filed this separate appeal.

1. Morrill challenges the sufficiency of the evidence supporting his convictions. "On appeal of a criminal conviction, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Citations, punctuation and emphasis omitted.) Gray v. State, 213 Ga.App. 507, 509(1), 445 S.E.2d 328 (1994). "[The] appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]" Palmore v. State, 213 Ga.App. 140, 141(2), 444 S.E.2d 581 (1994). The evidence in the instant case, viewed in the light most favorable to the verdict, shows that on June 8, 1992, members of the crime ring broke into the Foxx Adult Entertainment Club to steal money. Officer Morrill, who was on duty, acted as a lookout for the ring members who entered the club and monitored his police radio for any calls concerning the burglary. Because the crime ring members were unable to open the club's safe, Morrill borrowed a hand truck from a nearby convenience store, which the ring members then used to remove the safe from the Foxx premises. Morrill later received approximately $325 as his share of the money found in the Foxx safe.

Two weeks after the Foxx break-in, crime ring members burglarized a Home Depot store. They were unable to open the store safe, but stole various other items. During the burglary, Morrill again was on duty and monitored his police radio in order to warn the ring members if any alarms went off at the store or police were called to the scene. Immediately after the burglary, Morrill met with the ring members to take an inventory of the items stolen.

A week later, the ring targeted the Home Depot for a second theft, planning to lure the Home Depot manager to the store so he could be forced to open the safe. The ring intentionally set off an alarm at the store. Morrill, who again was on duty, answered the alarm. He met the manager at the store to walk through the premises. After finding no one on the premises, Morrill left the manager alone in the store. Two crime ring members then rushed into the Home Depot. After one of the members fired a gun, the manager fell to the floor. The ring members held a gun to the manager's head, forced him to open the safe, tied him up and left the store with money from the safe. Morrill received approximately $6,000 for his participation in the second Home Depot burglary.

Having reviewed all of the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found Morrill guilty beyond a reasonable doubt of all the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Lawson v. State, 214 Ga.App. 464, 465(1), 448 S.E.2d 14 (1994); Edwards v. State, 209 Ga.App. 304, 305(1), 433 S.E.2d 619 (1993).

2. Morrill claims the court erred in overruling his motion to quash the indictment because he was denied his rights as a police officer to be served with a copy of the proposed indictment at least 15 days before it was presented to the grand jury, to be present when the state introduced its evidence to the grand jury, and to make a statement to the grand jury without being cross-examined. "Peace officers are afforded these rights under OCGA §§ 17-7-52 and 45-11-4 if charged with a crime which is alleged to have occurred while in the performance of their official duties. In Mize v. State, 152 Ga.App. 190(1) (262 SE2d 492) (1979), this court held that a police officer charged with participating in a burglary while in uniform and on duty was properly denied these protections, inasmuch as the performance of such official duties does not include the commission of burglaries." (Citation and punctuation omitted.) Gober v. State, 203 Ga.App. 5(1), 416 S.E.2d 292 (1992). In the instant case, the state alleged Morrill committed the crimes charged while on duty. Because the performance of Morrill's official duties did not include the commission of the crimes charged, he was not entitled to the rights afforded by OCGA §§ 17-7-52 and 45-11-4. The court therefore properly refused to quash the indictment.

3. Morrill argues the court erred in denying his motion for a change of venue based on extensive pretrial publicity of the case. The trial court has discretion in determining whether to grant a motion for a change of venue and its determination will not be disturbed absent an abuse of that discretion. Chancey v. State, 256 Ga. 415, 430(5), 349 S.E.2d 717 (1986). "In a motion for a change of venue, the [movant] 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.]" Grace v. State, 210 Ga.App. 718, 720(3), 437 S.E.2d 485 (1993). "Traditionally, a defendant seeking a change of venue on the basis that the setting of the trial is inherently prejudicial relies heavily if not primarily or exclusively on news media reports.... However, widespread or even adverse publicity is not in itself grounds for a change of venue. On appeal, the impact of media publicity is evaluated by various factors, such as the size of the community and the extent of media coverage (number of articles and their circulation); whether it is related to the discovery of the crime (e.g., facts regarding the victim) or to the apprehension or interrogation of the defendant (and whether any publicized confession was admitted at trial); the prominence and content of the reports (e.g., facts vs. speculation and emotionalism, and the accuracy and admission into evidence of those facts); and the time interval between the publicity and the trial." (Citations and punctuation omitted.) Nobles v. State, 201 Ga.App. 483, 489(11), 411 S.E.2d 294 (1991). "[D]efendants sometimes also seek to show inherent prejudice has resulted from widespread community fear and bias." (Citations and punctuation omitted.) Milan v. State, 207 Ga.App. 206, 208(2), 427 S.E.2d 573 (1993).

The current case was widely covered in Fulton County news reports. The media coverage cited by Morrill relates both to the discovery of the crimes and the apprehension of people involved in the offenses. The coverage cited is generally factual, not speculative or emotional. Contrary to Morrill's claims, the record of publicity before us does not show a "barrage of inflammatory publicity immediately prior to trial amounting to a huge wave of public passion.... There is no evidence of a total inundation of the judicial process by the media at this trial." (Citations and punctuation omitted.) Nobles, supra. Because Morrill has not shown inherent prejudice as a result of pretrial publicity or community fear and bias, we conclude that the trial court did not abuse its discretion in refusing to change venue on this basis.

The court also did not abuse its discretion in determining the jury selection process showed no actual prejudice to a degree rendering a fair trial impossible. This determination involves a review of the voir dire examination of potential jurors. Chancey, supra, 256 Ga. at 429(5), 349 S.E.2d 717. "[T]he proper test is whether the prospective juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." (Citations and punctuation omitted.) Id. at 431(5)(C), 349 S.E.2d 717. Here, 115 potential jurors were questioned in individual voir dire and 19 of them were excused because they had formed an opinion of guilt based on pretrial publicity. As to the remaining prospective jurors, Morrill has not shown that any of them were unable to lay aside their impressions and render a verdict based on evidence presented in court. Because the trial court did not abuse its discretion in finding no inherent or actual prejudice due to pretrial publicity, we cannot disturb the denial of Morrill's motion to change venue. See Crawford v. State, 257 Ga. 681, 683(2), 362 S.E.2d 201 (1987); Blige v. State, 211 Ga.App. 771, 772-773(1), 440 S.E.2d 521 (1994).

4. Morrill contends the court should have disqualified three jurors for cause on the ground that they were biased against him due to pretrial publicity. "[B]efore a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the...