Philmore v. State
| Decision Date | 19 April 1993 |
| Docket Number | No. S93A0020,S93A0020 |
| Citation | 428 S.E.2d 329,263 Ga. 67 |
| Parties | PHILMORE v. The STATE. |
| Court | Georgia Supreme Court |
Anthony L. Harrison, Harrison & Harrison, Brunswick, for Philmore.
Glenn Thomas, Jr., Dist. Atty., Jesup, Michael J. Bowers, Atty. Gen., Atlanta, Kevin R. Gough, Asst. Dist. Atty., Brunswick, Susan V. Boleyn, Senior Asst. Atty. Gen., Atlanta, for State.
Rachelle L. Strausner, Staff Atty., Atlanta.
Guy Lawson Philmore was convicted of felony murder, aggravated assault with a deadly weapon, aggravated assault with intent to rob, and attempted possession of marijuana with intent to distribute. 1 He was sentenced to life imprisonment as a recidivist pursuant to OCGA § 17-10-7. The trial court denied Philmore's motion for new trial, and he appeals.
1. Appellant contends the evidence was insufficient to support the verdict. Construed in a light most favorable to the verdict, the evidence showed that appellant was a drug dealer operating at an intersection in Brunswick on the nights of July 25-26, 1990. The victim, Jimmy David Hearn, a crack cocaine addict, after earlier visiting the area, returned by taxi to the intersection with several bags of marijuana, which he proceeded to either sell or swap for crack cocaine. Because no other marijuana was available that night in the area Hearn's marijuana was quickly purchased not only by drug users but also by other drug dealers. After Hearn agreed to exchange his last and largest bag of marijuana with drug dealer T.C. Bell for crack, the two men went into an alley behind a nearby Original K convenience store to make the trade. Appellant walked up to the men, intimidated Bell into abandoning the transaction, and demanded that Hearn give him the marijuana. Testimony was adduced that when Hearn refused, appellant pushed Hearn and pulled out a knife. Hearn was unarmed and there was testimony that Hearn neither threatened appellant nor claimed to have a weapon before appellant brandished the knife. Hearn, who weighed more than appellant, punched appellant and knocked him to the ground, but upon regaining his feet appellant stabbed Hearn repeatedly. Medical testimony established that many of the knife cuts found on Hearn's body were of a defensive nature. Hearn's death was caused by a stab wound to his chest that cut the heart, allowing blood to collect in the pericardial sac until the pressure prevented the heart from beating. This medical testimony was introduced to explain how Hearn, after receiving the fatal cut, was nevertheless able to break free of the fight with appellant and others, who had gathered either to observe or assist appellant in the attack, and gain refuge in the taxi cab that had originally brought him to the area. The cab driver, uncertain of the extent of Hearn's injuries, drove him to a nearby police station, where efforts to save Hearn's life were unsuccessful.
From this evidence a rational trier of fact was authorized to find beyond a reasonable doubt that appellant was guilty of the charged crimes under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Appellant contends the trial court erred by finding that the statement he made to police on July 26, 1990 was voluntary where there existed evidence that appellant had used crack cocaine an hour before the interview. The officers who obtained appellant's waiver of his Miranda rights and conducted the tape-recorded questioning testified at the Jackson v. Denno hearing that they had known appellant for years, that he did not appear to be under the influence of drugs or alcohol during the interview, that appellant had no difficulty speaking and his answers were responsive to their questions, and that the manner in which appellant spoke during the interview did not differ from the way the officers knew appellant normally talked. The officers' testimony also established that no promises, threats or coercion were employed to obtain appellant's waiver of his Miranda rights. Accordingly, even assuming appellant had earlier used cocaine and was still under that drug's effect during the interview, we find that the trial court was authorized to conclude that appellant gave a voluntary statement and made a knowing and intelligent waiver of his Miranda rights. Cunningham v. State, 255 Ga. 727, 730(2), 342 S.E.2d 299 (1986).
3. Appellant moved for a mistrial after the prosecutor during closing argument made statements appellant contends were impermissible and prejudiced his right to a fair trial. The trial transcript reveals that appellant, the victim, and almost every eyewitness to the events in issue were involved in the use or sale of illegal drugs. After maintaining that the jury should not discount Hearn's life because he was a crack cocaine addict or conclude that "drug people are not human beings," the prosecutor argued to the jury that neither should they condone illegal drug-related activities merely because those activities occurred in one isolated place, asking the jury
We find no abuse of the trial court's discretion in denying appellant's motion for mistrial. It is not improper for a prosecutor to appeal to...
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...purported previous consumption of alcohol and drugs. Garcia v. State, 267 Ga. 257, 258(5), 477 S.E.2d 112 (1996); Philmore v. State, 263 Ga. 67, 68(2), 428 S.E.2d 329 (1993); Blackwell v. State, 259 Ga. 810, 811(2), 388 S.E.2d 515 (1990). The trial court's finding must be upheld, since it i......
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...such as to have a common origin." The "send a message" argument is permissible in the guilt-innocence phase. See Philmore v. State, 263 Ga. 67(3), 428 S.E.2d 329 (1993). Lastly, Pace complains that the prosecutor committed misconduct by characterizing Pace as a "misogynistic, woman hating d......
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...is not improper for a prosecutor to appeal to a jury to convict in order to "send a message" to the community. See Philmore v. State, 263 Ga. 67(3), 428 S.E.2d 329 (1993). While references to religion which invite jurors to base their verdict on extraneous matters not in evidence should be ......