Powell v. State

• Decision Date: 15 October 2012
• Docket Number: No. S12A1311.,S12A1311.
• Citation: 733 S.E.2d 294,291 Ga. 743
• Parties: POWELL v. The STATE.
• Court: Georgia Supreme Court

291 Ga. 743
733 S.E.2d 294

POWELL
v.
The STATE.

No. S12A1311.

Supreme Court of Georgia.

Oct. 15, 2012.

[733 S.E.2d 296]

Long Dai Vo, Tyler Reid Conklin, Georgia Public Defenders Standards Council, Atlanta, for appellant.

Paul L. Howard, Jr., Dist. Atty., Christopher Michael Quinn, Sr. Asst. Dist. Atty., Paige Reese Whitaker, Deputy Dist. Atty., Office of the District Attorney, Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Katherine Lee Iannuzzi, Asst. Atty. Gen., Department of Law, for appelle.

BLACKWELL, Justice.

[291 Ga. 743]Marquez Powell was tried by a Fulton County jury and convicted of the murder of Shah Walton, as well as possession of a firearm during the commission of a felony. Following the denial of his motion for new trial, Powell appeals, contending that the evidence is insufficient to sustain his convictions, that the prosecuting attorney made improper and prejudicial remarks in her closing argument, and that the court below impermissibly allowed the State to constructively amend the indictment at trial. Upon our review of the briefs and the record, we find no reversible error, and we affirm.¹

1. Viewed in the light most favorable to the prosecution, the evidence shows that Walton, Powell, and Jacques Shockley were [291 Ga. 744]traveling together in a car on the evening of April 18, 2005. Walton was driving, Powell was seated behind Walton, and Shockley was seated in the front passenger seat. Two witnesses saw the car stop suddenly in the road, and the witnesses saw two men exit the car on the passenger side, stand together for a moment at the front of the car, and then flee from the scene together on foot. After the passengers fled, the witnesses approached the car and found Walton, who had been shot in the head at close range. Walton died as a result of the gunshot wound. After the shooting, Powell went to the home of a friend, a few blocks from the scene of the shooting, and Shockley went to the same house, although he arrived after Powell. Notwithstanding that Powell later described Walton as a close friend, Powell did not notify law enforcement that his friend had been shot, and he instead called his sister, who picked him up and took him to the home of his mother.

A month after the shooting, an Atlanta Police detective interviewed Powell, who denied that he had met with Walton in a parking lot shortly before the shooting and that he was in the car with Walton at the time of the shooting. Powell told the detective that

[733 S.E.2d 297]

Shockley and a man known as “Dee” were with Walton when he was shot. Powell also said that he had only met Shockley on the day of the shooting. About a week later, the detective confronted Powell with additional evidence, and Powell admitted that he had, in fact, met with Walton in a parking lot before the shooting. A couple of weeks after that, the detective confronted Powell with further evidence, and Powell admitted that he had been in the car at the time of the shooting, that he had lied about “Dee,” and that he had known Shockley for about a year. At trial, Powell testified that he and Shockley were dealing drugs on the evening of the shooting, that he exited the car to transact a drug deal, that Walton had a gun in his lap when Powell exited the car, that Walton had been shot by the time Powell returned to the car, and that Powell hid in some bushes until he saw Shockley exit the car and run away. Powell also testified that he was distraught after the shooting of Walton, his close friend.

On appeal, Powell claims that the evidence is insufficient to sustain his convictions because no evidence shows that he fired the fatal shot or was a party to the firing of the fatal shot. We disagree. “[A] person who does not directly commit a crime may be convicted upon proof that the crime was committed and that person was a party to it.” Walsh v. State, 269 Ga. 427, 429(1), 499 S.E.2d 332 (1998) (citation omitted). See also OCGA § 16–2–20(b) (defining parties to a crime). Although mere presence at the scene of a crime is not sufficient to prove that one was a party to the crime, “presence, [291 Ga. 745]companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred.” Brown v. State, 288 Ga. 902, 904(2), 708 S.E.2d 294 (2011) (citation and punctuation omitted). See also Hill v. State, 281 Ga. 795, 797(1)(a), 642 S.E.2d 64 (2007); Simpson v. State, 265 Ga. 665, 665–666, 461 S.E.2d 210 (1995). Here, even assuming that Shockley, not Powell, fired the fatal shot, the evidence shows that Powell and Shockley were engaged in a common enterprise at the time of the shooting, that Powell was in the car at the time of the shooting but failed to summon any help for Walton, and that Powell and Shockley stood together at the front of the car after the shooting, ran off together, and eventually made their ways to the same place. The evidence also shows that Powell “repeatedly gave false statements to the investigator.” Mutazz v. State, 290 Ga. 389, 390(1), 722 S.E.2d 47 (2012). See also Brown, 288 Ga. at 904–905(2), 708 S.E.2d 294. Although Powell claimed at trial that he had nothing to do with Shockley shooting Walton and that he was, in fact, afraid of Shockley, it was for the jury to assess the credibility of this testimony. See Williams v. State, 287 Ga. 199, 200, 695 S.E.2d 246 (2010). One reasonably might infer from the evidence that Powell and Shockley shared a criminal intent with respect to the shooting, and for this reason, the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Powell was a party to the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Mutazz, 290 Ga. at 390(1), 722 S.E.2d 47;Brown, 288 Ga. at 904–905(2), 708 S.E.2d 294.

2. In her closing argument, the prosecuting attorney said that prosecutors do not seek the indictment of persons whom they believe to be innocent:

If we think it's a bad arrest, if we think there's not enough evidence, what happens to that case? It goes. We don't bring it to indictment if we think the person is innocent, if there is not enough evidence.

We agree with Powell that these remarks were improper. See DeNamur v. State, 156 Ga.App. 270, 270(1), 274 S.E.2d 673 (1980) (improper for prosecutor to ask in closing argument “[w]ho wants to prosecute innocent people?”). Courts have correctly chastised prosecutors “for arguing or even suggesting that ‘the government only prosecutes guilty people.’ This line of argument is forbidden [291 Ga. 746]because it implies that the prosecutor reached the determination that the defendant is guilty before trial and that the jury should weigh this fact in making its determination.” United States v. Stefan, 784 F.2d 1093, 1100 (11th Cir.1986). Nevertheless, we conclude that the improper remarks of the prosecuting

[733 S.E.2d 298]

attorney in this case form no basis for a reversal of the judgment below.

(a) Powell contends that the court below should have rebuked the prosecuting attorney for her improper remarks and should have given a curative instruction to the jury. But his lawyer “did not object to the now challenged comments by the prosecutor. In the appeal of a non-capital case, the defendant's failure to object to the State's closing argument waives his right to rely on the alleged impropriety of that argument as a basis for reversal.” Scott v. State, 290 Ga. 883, 885(2), 725 S.E.2d 305 (2012) (citations and punctuation omitted). And a trial judge has no obligation under OCGA § 17–8–75 to rebuke a prosecuting attorney or...