Morris v. State

• Decision Date: 30 January 2006
• Docket Number: No. S06A0169.,S06A0169.
• Citation: Morris v. State, 626 S.E.2d 123, 280 Ga. 179 (Ga. 2006)
• Parties: MORRIS v. The STATE.
• Court: Georgia Supreme Court

280 Ga. 179

626 S.E.2d 123

MORRIS v.The STATE.

No. S06A0169.

Supreme Court of Georgia.

January 30, 2006.

COPYRIGHT MATERIAL OMITTED

William J. Mason, Columbus, for Appellant.

John Gray Conger, Dist. Atty., Ryan Reese Leonard, Asst. Dist. Atty., Columbus; Thurbert E. Baker, Atty. Gen., Vonnetta Leatrice Benjamin, Asst. Atty. Gen., Dept. of Law, Atlanta, for Appellee.

CARLEY, Justice.

Herman Morris and two co-defendants were tried before a jury on an indictment charging them with murder of Roderick Davis and related crimes.The jury found all three guilty of malice murder, kidnaping, aggravated assault, and possession of a firearm during the commission of a crime.The trial court sentenced them to life imprisonment for the homicide and to consecutive varying terms of years for the remaining offenses.Morris' co-defendants appealed, and their convictions and sentences were affirmed.McKenzie v. State,274 Ga. 151, 549 S.E.2d 337(2001).After the denial of his motion for new trial, Morris appeals from the judgments of convictions and sentences entered on the jury's verdicts finding him guilty.¹

1.The State's evidence showed that the crimes arose out of a dispute over a drug deal in which Davis sold contraband that Morris believed was of inferior quality.Morris, along with the two accomplices, kidnaped Davis.They drove to a remote area, where the victim was shot several times.Construed most strongly in support of the guilty verdicts, the evidence was sufficient to authorize a rational trier of fact to find proof of Morris' guilt of murder and the related crimes beyond a reasonable doubt.Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979);McKenzie v. State,supra at 152(1), 549 S.E.2d 337.

2.The jury charge included an instruction which tracked the language of the aggravated assault statute in its entirety.Morris urges that giving this instruction was erroneous, because the indictment did not allege the commission of aggravated assault in all of the ways enumerated in OCGA § 16-5-21.When his co-defendants made the same assertion,

[w]e remind[ed]trial courts, as we have before, that the better practice is to conform a charge to the evidence in order to avoid confusing the jury.A review of the record in this case, however, shows that there was no possibility that the jury was misled by reading the entire statute.[Cit.]

McKenzie v. State,supra at 152(2), 549 S.E.2d 337.

This is true because, unlike Harwell v. State,270 Ga. 765, 766(1), 512 S.E.2d 892(1999) and similar cases, the prosecution did not introduce evidence that Mor ris or the co-defendants committed the crime of aggravated assault in any manner other than as was alleged in the indictment.Thus, there is no possibility that their due process rights were violated by subjecting them to the possibility of conviction for an unindicted crime.Therefore, this enumeration lacks merit.

3.Morris contends that his trial counsel was ineffective.To prevail on this claim, he must show that the attorney's performance was deficient and that, but for the deficient performance, there is a reasonable probability the trial would have ended differently.Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).After conducting a hearing, at which the lawyer explained the strategy which underlay his decisions, the trial court found that Morris failed to make the requisite showings.On appeal, "we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.[Cits.]"Suggs v. State,272 Ga. 85, 88(4), 526 S.E.2d 347(2000).

a) Morris urges that defense counsel failed to raise a hearsay objection to certain portions of an investigating officer's testimony.However, it appears that most, if not all, of the information contained in the officer's testimony was otherwise presented to the jury by witnesses having personal knowledge of the events in question.

The erroneous admission of hearsay is harmless where, as here, legally admissible evidence of the same fact is introduced.[Cit.] In such a case, the hearsay is cumulative and without material effect on the verdict.[Cit.] Because it is highly probable that the cumulative and immaterial hearsay did not contribute to the guilty verdict[s] against [Morris], a reversal of his conviction[s would] not [be] necessary.[Cit.]

Felder v. State,270 Ga. 641, 646(8), 514 S.E.2d 416(1999).Thus, with or without an objection, admission of the officer's testimony would not be a ground for a new trial.

Since the officer's cumulative and immaterial testimony was not a contributing factor in the return of...