Parker v. State

• Decision Date: 08 September 2020
• Docket Number: S20A0826
• Citation: 848 S.E.2d 117,309 Ga. 736
• Parties: PARKER v. The STATE.
• Court: Georgia Supreme Court

309 Ga. 736

848 S.E.2d 117

PARKER

v.The STATE.

S20A0826

Supreme Court of Georgia.

Decided: September 8, 2020

Richard A. Grossman, for appellant.

Paul L. Howard, Jr., District Attorney, David K. Getachew-Smith, Sr., Lyndsey H. Rudder, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ashleigh D. Headrick, Assistant Attorney General, for appellee.

Peterson, Justice.

Vraimone Parker appeals his convictions for malice murder and other offenses, following the shooting death of his aunt's boyfriend, Kwame Chubbs, and the non-fatal shooting of his aunt, Eva Robinson.¹ At trial, the jury rejected Parker's defense that he was not guilty by reason of insanity and also rejected the option of finding him guilty but mentally ill. Parker argues on appeal that the trial court erred by failing to grant a mistrial after a detective commented on Parker's silence; failing to grant a mistrial after the trial court's own expert witness testified that Parker knew what he was doing at the time of the shooting; and imposing a discovery sanction that precluded Parker's expert witness from offering particular testimony. He also argues that his trial counsel was ineffective in handling issues related to Parker's status as a convicted felon. We conclude that the trial court did not abuse its discretion in denying the motions for mistrial; Parker has shown no harmful error as a result of the discovery sanction; and Parker has not demonstrated that he was prejudiced by any deficient performance of counsel, even where counsel's performance is considered along with the effect of the discovery sanction. We therefore affirm.

The trial evidence in the light most favorable to the verdicts showed the following. Chubbs lived in Fulton County with his sister, Sonda Franklin, and Chubbs's estranged girlfriend, Robinson. On the afternoon of September 11, 2017, Parker, Robinson's nephew who recently had arrived from Florida, came to the home to visit.

Parker smoked marijuana and acted strangely that day. Parker was "seeing stuff" that was not there, jumping from those apparent hallucinations, and crying. Franklin claimed that she declined to smoke Parker's marijuana because it did not look like the marijuana she usually smoked, although Robinson testified that Franklin and Parker regularly shared the same marijuana. Robinson did not smoke any of Parker's marijuana. Parker spent the night at Franklin's house.

The following morning, Chubbs told Franklin when he left for work that he was going to call and check on her because Parker had been "acting weird to" him. Parker continued to act strangely that day, apparently hallucinating and claiming that five other people were "all at him at one time" and "the other Vraimone was telling him to kill himself." Parker had a gun, and Franklin and Robinson exchanged text messages about attempting to take it away. Robinson contacted Parker's mother, sister, and cousin, seeking help dealing with Parker.

At some point that day, Parker and Robinson were on the front porch. A passing car "spooked" Parker, and he went inside. Chubbs arrived home from work, and Franklin called him back to her room and reported that Parker's mother was on her way to get Parker. Chubbs asked Franklin for her gun, but she declined to give it to him. Chubbs left the room, and Franklin heard gunshots less than a minute later. Franklin ran out of her room and saw Parker shoot Chubbs multiple times; Parker looked directly at Franklin as he shot Chubbs in the head. Still out on the porch, Robinson felt a bullet graze her leg. Chubbs was shot at least six times and died from a gunshot wound to the head.

That night, police found Parker walking in the middle of a highway nearby, talking on a cell phone. Parker had a pistol in his waistband that later was determined to have fired the bullets recovered from Chubbs's body. Parker's pistol had three separate safeties. An arresting officer testified that he observed nothing out of the ordinary in Parker's behavior at the time of his arrest.

At trial, the State introduced evidence of two prior felony convictions of Parker in Ohio: a conviction for aggravated robbery involving the use of a firearm, and a conviction for illegal conveyance of a weapon or other prohibited item onto the grounds of a specified government facility.

The jury heard testimony about Parker's mental health from a State expert, a defense expert, and an expert the trial court appointed to testify as a friend of the court under OCGA § 17-7-130.1. The defense expert, Adriana Flores, testified that Parker was psychotic at the time of the offense and likely met the criteria for schizoaffective disorder bipolar type. Dr. Flores testified that marijuana use did not explain Parker's psychosis given that his psychotic symptoms began well before the shooting and continued for a period of time after his arrest. The State's expert, Matthew Norman, testified that Parker was psychotic on the day of the shooting but his psychosis was best explained by substance abuse, not schizoaffective disorder. The trial court's expert, David Halverson, testified that Parker did not suffer from a chronic psychotic illness but, rather, had experienced cannabis-induced psychotic disorder.

1. Although Parker does not challenge the sufficiency of the evidence, we have independently reviewed the record and conclude that the evidence presented at trial was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that he was guilty of the crimes of which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).²

2. Parker argues that the trial court erred by failing to grant his request for a mistrial after a State's witness improperly commented on Parker's silence.

At trial, a prosecutor asked a detective what she observed when she served Parker with warrants for his arrest. The detective replied, "He didn't speak. He didn't say anything —." The defense made a motion for a mistrial on the basis that the remark was an improper comment on Parker's silence. The motion was denied, but the trial court instructed the jury to disregard the comment.

"Whether to grant a mistrial is within the trial court's discretion, which an appellate court will not disturb unless there is a showing that a mistrial is essential to the preservation of the right to a fair trial." Jones v. State , 305 Ga. 750, 755 (3), 827 S.E.2d 879 (2019) (citation and punctuation omitted).

Here, even assuming the testimony was a comment on [Parker's] silence, the comment was non-responsive and made in passing. Further, juries are presumed to follow curative instructions in the absence of proof to the contrary. [Parker] has provided no evidence that the jury disregarded the court's instruction and therefore this allegation of error cannot be sustained.

Id.

3. Parker argues that the trial court committed reversible error when it failed to grant his motion for mistrial after the trial court's expert witness offered his conclusion on Parker's mental state and culpability in the presence of the jury. We disagree.

Although this enumeration of error primarily concerns the testimony of the court's expert witness, we begin with some background about the testimony of the defense expert who testified first. On direct examination, the defense expert, Dr. Flores, began to testify that Parker was psychotic before, during, and after the offense. Dr. Flores added that she concluded Parker was "unable to differentiate — " before being interrupted by the State's objection that her testimony was "getting to the ultimate issue" in the case. In response to the State's objection, the defense argued that its witness, Dr. Flores, should be able to testify that Parker did not know right from wrong, one of the two bases for proving insanity under Georgia law. See McElrath v. State , 308 Ga. 104, 106 (1) (b), 839 S.E.2d 573 (2020). The trial court ruled that the experts could not testify on that issue. Nonetheless, on cross-examination by the State, Dr. Flores briefly suggested, before stopping herself, that Parker met one of two possible definitions of insanity under Georgia law. In particular, when asked by the State to recite the legal standard for insanity in Georgia, Dr. Flores responded that it had "two prongs." She explained that "[o]ne prong" is that the person "was laboring under a delusion" that "overmastered their will," adding, "[t]he other one, which is the one that I am saying he meets, is that the individual was — I thought I couldn't testify about it." The prosecutor responded, "Well, I didn't ask you about it. But you testified anyway, didn't you?" Defense counsel objected to the prosecutor's response as argumentative and on the basis that the prosecutor had failed to allow Dr. Flores to complete her answer. The trial court stated in a bench conference that Dr. Flores had violated the court's order by "indicat[ing] to the jury [which] prong that she was moving under and what her finding was" and overruled the defense objection. No curative instruction was requested by either party or given by the trial court.

The trial court's expert, Dr. Halverson, testified later. When asked by the prosecutor whether Parker was experiencing psychosis at the time of the shooting, Dr. Halverson testified that Parker had been psychotic, but not delusional, then added that Parker "was not so impaired that he didn't know what he was doing at the time—" before being cut off by the trial court when Parker's counsel objected. Parker moved for a mistrial. The trial court denied the mistrial and asked whether the defense wanted any type of curative instruction. Defense counsel responded that the defendant did not waive his motion for a mistrial but requested that the court instruct the jury that Dr. Halverson "should not have testified to what he...