Parker v. State

• Decision Date: 20 October 2003
• Docket Number: No. S03A0986.,S03A0986.
• Citation: 588 S.E.2d 683,277 Ga. 439
• Parties: PARKER v. The STATE.
• Court: Georgia Supreme Court

588 S.E.2d 683

277 Ga. 439

PARKER v. The STATE.

No. S03A0986.

Supreme Court of Georgia.

October 20, 2003.

Reconsideration Denied December 11, 2003.

Dwight L. Thomas, Caprice R. Jenerson, Atlanta, for appellant. J. Tom Morgan, Dist. Atty., Barbara B. Conroy, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Ruth M. Pawlak, Asst. Atty. Gen., for appellee.

HUNSTEIN, Justice.

Devorious Parker was convicted of malice murder, felony murder and arson in the shooting death of Melissa Smith and the burning of her home. He appeals from the denial of his motion for a new trial.¹ Finding no reversible error, we affirm.

1. The jury was authorized to find that Parker and the victim, who were romantically involved, were seen together on the day of the murder. A neighbor testified he saw Parker running from the victim's home after 8:00 p.m. and smelled smoke. The victim's mother returned to the home she shared with the victim that evening and discovered the house was on fire. There was no sign of a forced entry into the home. Emergency personnel discovered the victim's body in her bedroom, which was the origin of the smoldering fire. Both the body and the room were extensively damaged by heat. An autopsy revealed that the victim had been shot twice in the head at close range, with one shot fired no more than an inch away and the other while the barrel almost touched the victim's skin; her death occurred before her bedroom mattress was set on fire. According to expert testimony, the fire was intentionally set. A witness testified that Parker had a black gun, established by expert testimony as the murder weapon, in his possession on the day of the crimes and that Parker asked the witness to either hide or sell the weapon. Another witness testified that several days after the crimes, Parker told him he had shot a girl and burned her house down.

Parker presented expert testimony regarding how and when the fire started and several alibi witnesses, including his step-father who testified that Parker was at home all day and two girlfriends who spoke with Parker on the telephone while he was at home.

We find the evidence adduced sufficient to enable a rational trier of fact to find Parker guilty beyond a reasonable doubt of the charged crimes. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. In opening statements the prosecutor told the jury, "I suspect that there will also be testimony of purported alibi witnesses, witnesses that claim that the defendant was with them." Parker objected, but the trial court ruled the prosecutor "has the right to do an opening as to what she expects the evidence to show." The trial court instructed the jury that "what the district attorney is saying in her opening remarks is not evidence and should not be considered as evidence."² The prosecutor then proceeded to reference police statements given by Parker's mother and sister in which they indicated they were not sure Parker was home the day of the crimes. The prosecutor continued, "And I suspect that probably you will hear testimony that now they are one hundred percent certain. And I suggest that once again you look at the evidence and not the innuendoes."

Parker contends the trial court committed reversible error by allowing these comments in the State's opening statement because Parker had not given notice to the State of any intention to present an alibi defense and thus the State's opening statement improperly shifted the burden of proof to Parker. Pretermitting whether proper objection was made, but see Unden v. State, 218 Ga.App. 463(4), 462 S.E.2d 408 (1995) (specific objection in proper form must be timely posed to preserve issue on appeal), we hold that while the trial court erred by allowing the State's improper remarks, the error does not require reversal under the facts in this case.

"The purpose of the opening statement is to inform the jury and the court of the nature of the case, and to give an outline of the proof the party anticipate[s] presenting." Franks v. State, 188 Ga.App. 263(1), 372 S.E.2d 831 (1988). A prosecuting attorney's "opening statement is limited to the statement of what the state expects to prove." Watson v. State, 137 Ga.App. 530(1), 224 S.E.2d 446 (1976). See also Daniel, Georgia Criminal Trial Practice (2001 ed.), § 19-6 (prosecutor may state "what he expects his witnesses to testify to"). Although Georgia has not specifically addressed the subject, a review of our sister states reveals that "many courts ... prohibit any mention of the other side's anticipated evidence during the opening statement. The advocate is thus precluded from criticizing the anticipated proof of the other side or from discussing evidence that will be elicited during the cross-examination of adverse witnesses." (Footnotes omitted.) Perrin, From O.J. to McVeigh: The Use of Argument in the Opening Statement, 48 Emory L.J. 107, 130-131 (1999).

In Georgia, "[g]ood faith is the general test in passing upon the preliminary statement of the [prosecutor] to the jury as to what he expects to prove in a criminal case. [Cits.]" Daniels v. State, 58 Ga.App. 599, 605(3), 199 S.E. 572 (1938). Based on our review of the record, it appears that the prosecutor had a reasonable basis for believing that Parker would introduce this alibi evidence. The list of defense witnesses included his mother and sister; the mother was present in the courtroom and the sister was under a defense subpoena to appear; and the prosecutor stated on the record that in pretrial discussions defense counsel had indicated to the State that these witnesses would testify. However, the record also reflects that Parker filed no notice of alibi.

We find the situation here comparable to that discussed by the Court of Appeals for the Seventh Circuit in United States v. Hall, 165 F.3d 1095 (7th Cir.1999). In Hall, the Seventh Circuit also determined that the prosecutor had a reasonable basis for believing that Hall would introduce the alibi evidence discussed by the State in opening. Notwithstanding that good faith belief, the Hall court held:

we have serious doubts as to the appropriateness of a prosecutor commenting on potential alibi witnesses of a defendant. We believe it to be a rare situation where it would be appropriate for a prosecutor to comment on anticipated defense evidence because a defendant is under no obligation to put forward evidence on his or her own behalf.... [W]hen the prosecution raises the spectre of a flawed alibi and the defendant chooses not to offer any alibi evidence, it may well leave the jury with an unfavorable impression of the defendant.

Id. at 1115.

We agree with the Hall court that it is inappropriate for a prosecutor in a criminal case to discuss in opening statement the evidence she anticipates the defense will present at trial. A criminal defendant is under no obligation to prove or disprove anything: "the law is absolutely clear that a criminal defendant carries no burden of proof or persuasion whatsoever." (Footnote omitted.) Wyatt v. State, 267 Ga. 860, 863(1), 485 S.E.2d 470 (1997). Notwithstanding pre-trial motions and discovery, a defendant may choose at the close of the State's case to present no evidence whatsoever. Comments by a prosecutor in opening statement regarding the defendant's anticipated evidence may constitute grounds for reversal should the defense rest without presenting such evidence.

In the case before us, while Parker did not call either of the witnesses discussed by the prosecutor in her opening statement, this is not a case in which no alibi evidence at all was adduced. Compare Hall, supra. The transcript reveals that Parker's step-father testified to the same matter the State anticipated would be presented through Parker's mother and sister, namely, that on the day of the crimes Parker did not leave the family home. Further, the trial court clearly and repeatedly instructed the jury that opening statements were not evidence.³ The proper standard for determining whether the uncorrected argument of counsel resulted in a miscarriage of justice is the "`highly probable test,' i.e., that it is `highly probable that the error did not contribute to the judgment.' [Cit.]" Johnson v. State, 238 Ga. 59, 61, 230 S.E.2d 869 (1976). See also Jones v. State, 159 Ga.App. 704(2), 285 S.E.2d 45 (1981). Applying this standard in light of the circumstances in this case, especially the jury instructions given by the court and the introduction by the defense of alibi evidence comparable to that discussed by the prosecutor in her opening statement, we conclude that while the trial court erred by allowing the prosecutor to comment on this matter in her opening statement, it is highly probable that the prosecutor's comments did not contribute to the judgment, see id., and were not so prejudicial as to deny Parker a fair trial. See Hall, supra at 1116. Accordingly, this enumeration presents no reversible error.

3. Parker's failure to object waives any issue regarding the testimony by Corey Reese or the closing argument by the prosecutor. See generally Rhodes v. State, 271 Ga. 481(2), 521 S.E.2d 579 (1999); Mullins v. State, 270 Ga. 450(2), 511 S.E.2d 165 (1999). Similarly, because "`[i]n no case will the trial judge's ruling be reversed for not going further than requested' [cit.]," Lyon v. State, 262 Ga. 247, 248-249(3)(a), 416 S.E.2d 523 (1992), and because the transcript reveals that the trial court granted Parker the precise relief he sought in regard to challenged testimony by Austin Obialo and Mary Jones, we find no merit in these enumerations. Finally, the trial court did not err by not granting a mistrial regarding Detective Fonseca's testimony where the transcript reveals that Parker expressly stated he was not moving for a mistrial. The transcript reveals that Parker instead moved for dismissal of the indictment. Given that counsel's timely objection prevented...