Poole v. State

• Decision Date: 05 November 2012
• Docket Number: No. S12A0662.,S12A0662.
• Citation: Poole v. State, 291 Ga. 848, 734 S.E.2d 1 (Ga. 2012)
• Parties: POOLE v. The STATE.
• Court: Georgia Supreme Court

291 Ga. 848

734 S.E.2d 1

POOLE

v.The STATE.

No. S12A0662.

Supreme Court of Georgia.

Nov. 5, 2012.

William L. Reilly, Blue Ridge, for appellant.

Joe Wayne Hendricks, Jr., Dist. Atty., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Elizabeth Anne Harris, Asst. Atty. Gen., Department of Law, for appellant.

BENHAM, Justice.

AppellantTammy Poole was convicted of the April 2007 malice murder of her husband, Robert Michael Poole, possessing a firearm during the commission of a felony and while a convicted felon, simple battery/ family violence, and making a false statement.¹After reviewing her contentions of ineffective assistance of counsel, improper jury instructions, and erroneous evidentiary rulings, we affirm the judgment of conviction.

The medical examiner who performed an autopsy on the body of Robert Michael Poole testified Poole died as a result of a “near-contact” gunshot wound to the left side of his forehead, just above his left eye.A firearms examiner from the Georgia Bureau of Investigation testified the bullet removed from the victim's body during the autopsy was fired from the Remington 22 semi-automatic rifle that was found in the bedroom shared by appellant and the victim.Appellant told the first responders to the emergency call for assistance that the victim had shot himself accidentally.She later told authorities that the rifle had discharged when it caught on a broken laundry basket as the victim attempted to pick up the rifle and, later, that appellant had been shot while he and appellant struggled for possession of the rifle.²SHE TOLD SOME FRIEnds and neighbors that the victim had committed suicide and that she had not told the police that fact to avoid hurting his family members.The medical examiner opined that the fatal wound was more likely inflicted by another rather than self-inflicted given that the weapon used was a rifle and the location of the wound was not a common site for a self-inflicted gunshot wound.Gunshot-residue testing of both appellant and the victim were negative, with several experts explaining the results might be due to the fact that the primer of the ammunition used in the shooting did not contain antimony, one of three metals typically associated with gunshot residue.

The victim's brother-in-law was one of several persons in the company of appellant and the victim several hours before the shooting, and he testified he heard the victim tell appellanthe wanted a divorce and would seek a restraining order against appellant.The witness stated appellant then struck the victim with her hand and told him she would kill him before she let him leave her.Several other persons also testified to having seen appellant strike the victim and utter the threat.The victim's sister, who was also present about three hours before the victim was killed, testified appellant accused the victim of having an intimate relationship with another woman, and the victim began to pack his belongings in his truck and expressed his intent to seek a divorce from appellant.A woman who was incarcerated in the same facility as appellant testified that appellant told her she had gotten the victim “out of the picture” in order to be with a married man she recently had been seeing.The inmate/witness also testified that appellant offered to pay the witness to destroy the green shirt appellant was wearing when the victim was killed, a suitcase, and an aluminum box.³The State presented evidence that, at the time the victim was killed, appellant had been convicted of several felonies.

1.Appellant contends the evidence presented by the State was not sufficient to authorize the convictions because the only direct evidence, the testimony of appellant's fellow inmate, was impeached, and because the evidence was circumstantial and did not exclude every reasonable hypothesis of guilt.SeeOCGA § 24–4–6.However, questions concerning reasonableness are generally for the jury and where the jury is authorized to find that the evidence, although circumstantial, was sufficient to exclude every reasonable hypothesis other than guilt, an appellate court will not disturb the finding unless the verdict of guilty is unsupportable as a matter of law.Brooks v. State,281 Ga. 514(1), 640 S.E.2d 280(2007).Furthermore, the credibility of a witness is a question for the jury, not the appellate court.Pridgett v. State,290 Ga. 365, 366, 720 S.E.2d 639(2012).The evidence, as summarized above, was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of malice murder, simple battery/family violence, possession of a firearm during the commission of a crime and while a convicted felon, and making a false statement.Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979);Sampson v. State,279 Ga. 8(1), 608 S.E.2d 621(2005)(making a false statement);OCGA §§ 16–5–23(f)(simple battery of a spouse); 16–11–106 (possession of a weapon during the commission of a crime), and 16–11–131 (possession of a firearm by a convicted felon).

2.Appellant complains the trial court erred when it denied her motion to bifurcate the trial and try separately the count of the indictment charging appellant with being a felon in possession of a firearm.However, the trial court did not err.Bifurcation was not authorized because the charge of being a felon in possession served as the underlying felony of the count of the indictment charging felony murder (Finley v. State,286 Ga. 47(2), 685 S.E.2d 258(2009)), and a motion to bifurcate should be denied where the count charging possession of a firearm by a convicted felon might serve as the underlying felony supporting a felony murder conviction.Head v. State,253 Ga. 429(3a), 322 S.E.2d 228(1984), overruled on other grounds inRoss v. State,279 Ga. 365, 368 n. 17, 614 S.E.2d 31(2005).

[291 Ga. 851]3.Appellant complains the trial court erred when it denied appellant's motion to strike a juror for cause and when the trial court failed to conduct an inquiry of the juror after the juror disclosed she held a preconceived notion concerning one of the witnesses that was not beneficial to the defense.

During voir dire, the venirewoman disclosed she knew a witness ⁴ and, upon further questioning by defense counsel, revealed that she had employed the witness to do clerical work for one year approximately two years before the trial.During voir dire, the venirewoman did not express an opinion about the witness and was not asked if her relationship with the witness would affect her partiality.⁵The day after being selected to serve on the jury and prior to the jury being sworn, the venirewoman sent a note to the trial court, the prosecutor, and defense counsel in which she asked to be removed from serving on the jury due to having been “closely associated” with the witness.In the note, the juror disclosed she had “a pre-conceived opinion of this witness” that “would not benefit the defense.”During a discussion outside the presence of the venirewoman,the trial court and counsel recalled that the juror had disclosed her acquaintance with the witness during voir dire.Defense counsel stated he had been unaware during voir dire of the closeness of the relationship between the juror and the witness, and the assistant district attorney asserted that nothing had come to light that made the juror unqualified to serve.The trial court denied defense counsel's motion to remove the juror for cause and replace her with an alternate.After discussing another matter, the trial court returned to the issue of the juror and asked counsel whether the juror should be brought into the pretrial discussion.Defense counsel declined the offer, and the assistant district attorney agreed with the trial court to “leave it lay.”

Whether to strike a juror for cause lies within the sound discretion of the trial judge (Corza v. State,273 Ga. 164(3), 539 S.E.2d 149(2000)), and the trial court's exercise of that discretion will not be set aside absent a manifest abuse of discretion.Lewis v. State,279 Ga. 756(3a), 620 S.E.2d 778(2005).A juror's opinion of her qualification to serve is not determinative of the question (OCGA § 15–12–164(d);Jones v. State,232 Ga. 324, 330, 206 S.E.2d 481(1974)), and a juror's expression of belief in the credibility of a witness does not mandate that the juror be excused for cause.Merneigh v. State,242 Ga.App. 735(6), 531 S.E.2d 152(2000).Rather, for a juror in a criminal case to be excused for cause on the statutory ground that her ability to be fair and impartial is substantially impaired, it must be shown that she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will not be able to set it aside and decide the case on the evidence or the court's charge on the evidence.Higginbotham v. State,287 Ga. 187(5a), 695 S.E.2d 210(2010).A juror's knowledge of, or relationship with, a witness, attorney, or party is a basis for disqualification only if it has created in the juror a fixed opinion of guilt or innocence or a bias for or against the accused.Gibson v. State,267 Ga.App. 473(4), 600 S.E.2d 417(2004).The law presumes that potential jurors are impartial, and the burden of proving partiality is on the party seeking to have the juror disqualified.Kim v. Walls,275 Ga. 177, 179, 563 S.E.2d 847(2002).See alsoOCGA § 15–12–164(a)(3), (b)(juror who answers the first two statutory voir dire questions in the negative and the third in the affirmative “shall be adjudged and held to be a competent juror ...” and either the State or the defendant has the right to introduce evidence to show that the juror's answers are untrue).In the absence of evidence that the juror held a fixed and definite opinion concerning the guilt or innocence of the defendant that she could not set aside and that she could not decide the case on the...