Rivers v. State

• Court: Georgia Supreme Court
• Writing for the Court: THOMPSON, Chief Justice.
• Citation: Rivers v. State, 768 S.E.2d 486, 296 Ga. 396 (Ga. 2015)
• Decision Date: 20 January 2015
• Docket Number: No. S14A1411.,S14A1411.
• Parties: RIVERS v. THE STATE.

296 Ga. 396

768 S.E.2d 486

RIVERS

v.THE STATE.

No. S14A1411.

Supreme Court of Georgia.

Jan. 20, 2015.

John Daryl Rasnick, Luthersville, for appellant.

Patricia B. Attaway Burton, Deputy Atty. Gen., Paula Khristian Smith, Senior Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Matthew Blackwell Crowder, Asst. Atty. Gen., Atlanta, Paul L. Howard Jr., Dist. Atty., Marc A. Mallon, Paige Reese Whitaker, Asst. Dist. Attys., Atlanta, for appellee.

Opinion

THOMPSON, Chief Justice.

Appellant Michael Rivers was convicted of felony murder in connection with the death of Donald Tanks III, and possession of cocaine with intent to distribute and sentenced to life imprisonment.¹

He appeals on several grounds from the trial court's denial of his motion for new trial, and for the reasons that follow, we affirm.

1. Viewed in the light most favorable to the verdict, the jury was authorized to find that on June 10, 2008, the victim and his friends, Marcus Clark, Dina Canada, Joseph Moore, and George Sullivan were returning to Moore's house after an evening out. Clark arrived first, so he parked his vehicle in a driveway across the street to wait for his friends. Appellant, who was selling cocaine on the street corner with several other individuals, asked his cousin, Gerry Perrymond, to see who was in Clark's vehicle. Perrymond walked up to and around Clark's vehicle, causing Clark to become concerned for his safety. Clark called his friends to see where they were, and when they arrived, Clark pointed out Perrymond.

Sullivan and Perrymond then exchanged words in the street. As their verbal altercation turned physical, Canada, who lived with Moore, asked them to stop and went to talk to the man in the group on the street whom she knew to be their leader. She asked that individual not to involve others in the fight and not to escalate the situation. By that time, the altercation between Perrymond and Sullivan had ended and Sullivan was walking back toward Moore's house. Appellant, who had been standing some distance from the scene, approached Tanks, who was standing behind Canada, and punched him in the face, causing Tanks to fall and hit his head on a concrete step. Tanks remained in a coma for several weeks, emerging from the coma only a few days before his death. The medical examiner determined the cause of death was delayed effects of blunt force trauma to the head, and more specifically, a blood clot that developed in Tanks' legs that ultimately traveled to his lungs, cutting off oxygen to his brain. Appellant admitted under oath at a preliminary hearing that he was selling cocaine on the night of the crimes and that he hit Tanks. At trial, his defense was that Tanks struck him first and he hit Tanks in self-defense. Perrymond testified at trial that he and appellant were on the street selling crack cocaine the night of the crimes.

This evidence was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Although appellant argues the trial court should have dismissed the count of the indictment charging him with possession of cocaine with the intent to distribute, we find the evidence presented at trial, including appellant's sworn admissions at a pre-trial hearing and Perrymond's corroborating testimony, was sufficient to establish beyond a reasonable doubt that appellant was selling cocaine on the night of June 10, 2008.² See Burg v. State, 298 Ga.App. 214, 216–217, 679 S.E.2d 780 (2009). See also Chancey v. State, 256 Ga. 415, 421–422, 349 S.E.2d 717 (1986) (State may rely on circumstantial evidence to prove a substance is an illegal drug). Moreover, because appellant's pre-trial admissions were direct evidence of his guilt of the possession charge, the State's case was not based solely on circumstantial evidence. See Rodriguez–Nova v. State, 295 Ga. 868, 871–872, 763 S.E.2d 698 (2014) ; Brown v. State, 291 Ga. 750, 752, 733 S.E.2d 300 (2012) (accused's own testimony may be used to corroborate an accomplice's testimony against him).

2. Appellant contends the trial court erred by refusing to strike prospective Juror Number 20 for cause after Juror 20 indicated he had strong opinions about illegal narcotics. “The decision to strike a potential juror for cause lies within the sound discretion of the trial court and will not be set aside absent some manifest abuse of that discretion.” Abdullah v. State, 284 Ga. 399, 400(2), 667 S.E.2d 584 (2008). There is no manifest abuse of discretion “unless it is shown that the juror's opinion ‘is so fixed and definite that [he or she] will be unable to set the opinion aside and decide the case based upon the evidence’ and the trial court's instructions.” (Footnote omitted.) Miller v. State, 275 Ga. 730, 736(5), 571 S.E.2d 788 (2002).

The record in this case demonstrates that although Juror 20 indicated his strong dislike for illegal narcotics, he also stated he would be able to reach a verdict based on the evidence presented at trial and the law on which the trial court instructed him, that he could return a not guilty verdict if the State did not carry its burden at trial, and that he could try to set his emotions aside and decide the case on its merits. Under these circumstances, we cannot say the trial court abused its discretion by finding that Juror Number 20's opinion was so fixed and definite that he could not decide the case based on the evidence introduced at trial. Accordingly, the trial court did not err by refusing to excuse this juror for cause. See Head v. State, 276 Ga. 131, 133(2), 575 S.E.2d 883 (2003).

3. The State presented evidence at trial of two statements made by appellant to police. In the first, made a few weeks after the assault on Tanks, appellant told a police officer who was canvassing the streets for possible witnesses that he was not present at the time Tanks was assaulted and he did not know who hit him. The second statement was made after appellant learned that detectives wanted to talk to him and that a detective told Perrymond that appellant should contact police or he could be charged with murder. On his own initiative, appellant then went to the police station, where he admitted he was present at the time of the assault but continued to assert that he did not know who hit Tanks. Appellant was not placed under arrest at any point during the giving of either statement, and at the end of the interview at the police station, he was allowed to go home. The trial court admitted appellant's statements over a defense objection, finding they were made voluntarily. Appellant contends the detective's comment to Perrymond suggested that appellant would be charged with murder unless he talked with police, thereby rendering his statements inadmissible at trial because they were given out of fear and with the hope of leniency.³

Under former OCGA § 24–3–50,⁴ for a confession to be admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.

Under Georgia law, only voluntary incriminating statements are admissible against the accused at trial, and the State has the burden of proving the voluntariness of a confession by a preponderance of the evidence. State v. Ritter, 268 Ga. 108(1), 485 S.E.2d 492 (1997). ... “The promise of a benefit that will render a confession involuntary under OCGA § 24–3–50 must relate to the charge or sentence facing the suspect.” White v. State, 266 Ga. 134(3), 465 S.E.2d 277 (1996). Generally, the “hope of benefit” to which the statute refers has been construed as a hope of lighter punishment. [Cits.].

Foster v. State, 283 Ga. 484, 485, 660 S.E.2d 521 (2008). Whether a statement was made voluntarily is determined by assessing the totality of the circumstances. Vergara v. State, 283 Ga. 175(1), 657 S.E.2d 863 (2008).

Contrary to appellant's assertion, we find no evidence in the record that detectives threatened appellant with injury if he did not make a statement or that he was given any promise of leniency if he did. Appellant's personal belief that talking to detectives would gain him favor from the State does not render his statements involuntary under former OCGA § 24–3–50, see Evans v. State, 277 Ga. 51, 52–53(2), 586 S.E.2d 326 (2003), and the detective's statement to Perrymond about a potential murder charge was not a threat of injury in the event appellant chose not to speak to police but was an accurate description of the seriousness of the crimes and the situation appellant faced. See Johnson v. State, 295 Ga. 421(2), 761 S.E.2d 13 (2014) (detective's statement that defendant could be charged with murder was a true statement emphasizing gravity of the situation the defendant faced); Preston v. State, 282 Ga. 210(2), 647 S.E.2d 260 (2007) (officer's discussion about punishment was no more than explanation of the seriousness of defendant's situation). Under these circumstances, the trial court's ruling that appellant's statements were voluntarily made was not erroneous.

4. Appellant contends the trial court erred by allowing the State to present as similar transaction evidence the testimony of Sina Polk, appellant's former girlfriend, regarding a prior incident in which appellant was selling drugs and hit her in the face during an argument. Under Georgia law applicable at the time of appellant's trial,⁵ evidence of a similar transaction may be admitted if the State shows that

(1) it seeks to introduce the evidence not to raise an improper inference as to the accused's character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility; (2) there is sufficient evidence to establish that the accused committed the independent offense or act; and (3) there is a sufficient connection or similarity between the independent offense or act and the crime charged so that

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