Pickren v. State

• Decision Date: 30 May 2000
• Docket Number: No. S00A0108.,S00A0108.
• Citation: 272 Ga. 421,530 S.E.2d 464
• Parties: PICKREN v. The STATE.
• Court: Georgia Supreme Court

530 S.E.2d 464

272 Ga. 421

PICKREN v. The STATE.

No. S00A0108.

Supreme Court of Georgia.

May 30, 2000.

J. Michael Treadaway, Marietta, for appellant.

Roger G. Queen, District Attorney, Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, H. Maddox Kilgore, Assistant Attorney General, for appellees.

BENHAM, Chief Justice.

Appellant Tommy Lamar Pickren was found guilty of malice murder in connection with the death of Gilmer County Deputy Sheriff Brett Dickey. Appellant was also found guilty of aggravated battery on another peace officer, aggravated assault on five other peace officers, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. On the jury's recommendation, appellant was sentenced to life imprisonment without the possibility of parole for the murder. The trial court imposed several terms of years for the other offenses. Appellant now appeals the judgment of conviction. ¹

Armed with a Forsyth County warrant for the arrest of appellant Tommy Lamar Pickren and aware that he was considered extremely dangerous, the Gilmer County sheriff and several of his deputies attempted to arrest appellant at a Gilmer County mobile home. Appellant barricaded himself in the mobile home and jumped out and ran away when tear gas canisters were thrown into the residence. He was chased by several deputies, one of whom caught up with him. While the deputy and appellant scuffled, appellant managed to fire the deputy's semi-automatic pistol which had been dislodged from its holster and fallen to the ground. One shot struck and killed a deputy sheriff near the scuffle, and another shot wounded a second deputy. Appellant was subsequently subdued and arrested.

1. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty of malice murder and possession of a firearm during the commission of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Additional evidence that appellant had previously been convicted of a felony was sufficient to authorize the factfinder to find appellant guilty of being a convicted felon in possession of a firearm. Appellant contends he was entitled to a directed verdict of acquittal on the counts charging him with felony murder with the underlying felony being aggravated assault or aggravated battery on a peace officer. Since the trial court entered a judgment of conviction and sentence only on the verdict finding appellant guilty of malice murder, any issues concerning the felony murder counts of the indictment are moot and will not be considered. Adams v. State, 271 Ga. 485(5), 521 S.E.2d 575 (1999).

Appellant also contends that verdicts of acquittal should have been directed on the count charging him with aggravated battery on a peace officer and the six counts charging him with aggravated assault on a peace officer because, he contends, the State did not prove he had actual knowledge that the victims were peace officers. Because aggravated assault upon a peace officer is a crime separate and distinct from aggravated assault, knowledge that the victim is a peace officer is an essential element of the offense. Bundren v. State, 247 Ga. 180(2), 274 S.E.2d 455 (1981). The same is true for aggravated battery upon a peace officer. Chandler v. State, 204 Ga.App. 816(3), 421 S.E.2d 288 (1992). Evidence presented in the case at bar that two of the deputies approached the front door and identified themselves as from the sheriff's department; that appellant saw at least one uniformed deputy before retreating into the mobile home; that a plainclothed deputy was wearing a rain vest with "sheriff" written on it; that deputies again identified themselves as from the sheriff's department as appellant ran from the mobile home; and that appellant told a GBI agent after appellant's arrest that he had seen two deputies approach the mobile home, was sufficient to establish that appellant knew the persons chasing him as he ran from the mobile home were peace officers. See Dawsey v. State, 234 Ga.App. 540(1), 507 S.E.2d 786 (1998); Chandler v. State, supra, 204 Ga.App. at 822, 421 S.E.2d 288 (evidence that victim/officer was in uniform sufficient to establish defendant should have known the victim was a peace officer). See also Jenkins v. State, 266 Ga. 214, 215, 465 S.E.2d 432 (1996).

2. In a related enumeration of error, appellant contends reversible error was committed in the trial court's instructions to the jury on aggravated assault on a peace officer and aggravated battery on a peace officer because the jury was not informed that knowledge that the victim was a peace officer was an essential element of both crimes. See Bundren v. State, supra, 247 Ga. at 181, 274 S.E.2d 455; Chandler v. State, supra, 204 Ga.App. at 821, 421 S.E.2d 288.² While counsel for appellant at trial voiced objections to other portions of the trial court's instructions, counsel neither raised the objection currently under scrutiny nor reserved the right to raise additional objections in post-conviction reviews. See McCoy v. State, 262 Ga. 699(2), 425 S.E.2d 646 (1993). Accordingly, appellate review of the issue has been procedurally defaulted. Williams v. State, 239 Ga.App. 30(6), 521 S.E.2d 27 (1999). See Rivers v. State, 250 Ga. 303(7), 298 S.E.2d 1 (1982).

3. Appellant asserts his sentence of life imprisonment without parole must be vacated because the commission of the aggravated battery against the surviving deputy sheriff was one of the aggravating circumstances listed by the jury to support the imposition of the sentence, and that aggravating circumstance is adversely affected by the trial court's alleged failure to charge properly the law of aggravated battery upon a peace officer. Regardless of the merits of appellant's contention concerning the trial court's jury instruction, the existence of three other aggravating circumstances found by the jury to support its recommendation of a sentence of life without parole, all of which are supported by evidence and none of which is challenged by appellant, support the imposition of the sentence of life imprisonment without parole. See Lipham v. State, 257 Ga. 808(7), 364 S.E.2d 840 (1988) (death sentence affirmed where three of four aggravating circumstances withstood appellate scrutiny).

4. The State used all ten of its peremptory challenges to strike women from the petit jury. Citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), counsel for appellant took issue with the district attorney's action as to six of the strikes and the trial court required the district attorney to proffer his reasons for challenging the women. The trial court found the district attorney's reasons to be gender-neutral and that appellant had not carried his burden of persuasion. On appeal, appellant contends that the district attorney's reasons evidenced "inherently gender motivated male dominant stereotypical thinking," and that the trial court erred in finding them to be gender-neutral.³

The Equal Protection Clause of the U.S. Constitution prohibits discrimination in jury selection on the basis of race or gender, or [on] the assumption that a venireperson will be biased in a particular case for no reason other than the person's race or gender. [Cit.] ... [T]he proponent of the strike is required to set forth a race [or gender]-neutral case-related, clear and reasonably specific explanation for the exercise of the peremptory strike. [Cits.] An explanation is not racially [or gender] neutral if it is based on "a characteristic that is peculiar to any race" [or either gender] [cits.], or a stereotypical belief.

Turner v. State, 267 Ga. 149(2), 476 S.E.2d 252 (1996). On appeal, the appellate court gives great deference to the trial court's findings as to whether the opponent of the strikes has carried the burden of persuading the trial court that the proponent of the strikes acted with discriminatory intent. Id. After reviewing the transcript, we conclude that the trial court did not err since none of the district attorney's explanations of his strikes was based on a characteristic peculiar to females and appellant did not show that the district attorney acted with discriminatory intent.

5. After his arrest, appellant was taken to a hospital for treatment of injuries and then to a probation office in Forsyth County where a GBI agent interviewed him after midnight. His motion to suppress the statement he then gave was denied by the trial court after a Jackson-Denno hearing, and he asserts on appeal that the trial court erred in doing so.

"`Unless clearly erroneous, a trial court's findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.' [Cit.]" Lawton v. State, 263 Ga. 168, 171, 429 S.E.2d 921 (1993). The GBI agent testified that, while appellant indicated he had been drinking earlier on the day of the shooting, the agent did not smell alcohol on appellant when he gave his statement, and appellant appeared calm and alert and responded quickly to the background questions posed by the agent. The agent acknowledged that, between the shootings and appellant's statement, appellant had been treated at a hospital for lacerations to the hand and head, but testified that neither injury affected appellant's demeanor at the time of his statement. The agent described appellant as one who appeared to understand what was going on around him and one who...