Sanders v. State

• Decision Date: 27 February 2012
• Docket Number: No. S12A0255.,S12A0255.
• Citation: 723 S.E.2d 436,12 FCDR 596,290 Ga. 637
• Parties: SANDERS v. The STATE.
• Court: Georgia Supreme Court

12 FCDR 596

290 Ga. 637

723 S.E.2d 436

SANDERS

v.The STATE.

No. S12A0255.

Supreme Court of Georgia.

Feb. 27, 2012.

Eric Charles Crawford, Crawford & Boyle, LLC, Monroe, for appellant.

Richard Randolph Read, Dist. Atty., Roberta Ann Earnhardt, Sr. Asst. Dist. Atty., Samuel S. Olens, Atty. Gen., Paula Khristian Smith, Sr. Asst., Atty. Gen., Katherine Lee Iannuzzi, Asst. Atty. Gen., for appellee.

THOMPSON, Justice.

Appellant Torrence Sanders was convicted of felony murder, armed robbery and other related offenses in connection with the vehicular death of Shirley Ann Akins and the armed robbery of Danny Rakestraw, Emmanuel Asamoah, and Raymond Carr.¹ On appeal, Sanders claims, inter alia, that he was denied effective assistance of trial counsel. Finding no error, we affirm.

Viewed in a light most favorable to the verdict, the evidence shows that Sanders and co-defendant Ntyono Pennie drove to an apartment complex in a Black Nissan Maxima and approached an acquaintance, Danny Rakestraw, who was in the parking lot. Pennie asked to go to Rakestraw's apartment, ostensibly to listen to music. Rakestraw agreed, and the three men entered the apartment. They were joined by Rakestraw's brother-in-law, Emmanuel Asamoah, and Rakestraw's roommate, Raymond Carr. Sanders and Pennie both produced guns which they then used to rob the three men of their valuables. Thereafter, Pennie instructed Sanders to drive the black Maxima to the entrance of the apartment building. Pennie shot Rakestraw in the wrist and then ran to the parking lot where he got into the vehicle being driven by Sanders.

Police were notified, and an officer spotted a black Maxima at a standstill behind a truck at a red light a half-mile from the apartment complex. The officer, driving a marked sheriff's patrol car with blue lights activated, pulled in behind the Maxima. When the traffic light turned green and the truck advanced, the Maxima drove around the truck and sped off. The officer activated his siren and pursued the Maxima, which was traveling 70 mph in a 45 mph zone. The Maxima sped through a red light at an intersection where it collided with Akins' car, killing her. The two occupants of the Maxima exited the car and were pursued on foot by police. An officer tackled co-defendant Pennie, but Sanders escaped. Items taken in the armed robbery were found in Pennie's possession. The Maxima was registered to Pennie, and the weapon used to shoot Rakestraw was found in the car. Sanders' fingerprints were on the exterior driver's side of the vehicle, and his backpack, containing his birth certificate and personal mail, was found inside. Sanders was apprehended and taken into custody seven months later.

1. When construed most strongly in support of the verdict, the evidence was sufficient to enable a rational trier of fact to find Sanders guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On appeal, Sanders argues that the State failed to meet its burden to prove his identity as a participant in the crime, an essential element of the State's case. Specifically, Sanders contends that pursuant to OCGA § 24–9–85(b) the jury was required to disregard the testimony of Rakestraw, the only eyewitness to identify Sanders as being present at the scene of the crime. OCGA § 24–9–85(b) states “[i]f a witness shall willfully and knowingly swear falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence.” Although Sanders argues that Rakestraw's testimony was filled with “lies, inconsistencies and contradictions,” there is no evidence that Rakestraw acted with a manifest purpose to testify falsely, thus his credibility was an issue to be evaluated by the jury. See Fugitt v. State, 256 Ga. 292, 298, 348 S.E.2d 451 (1986); compare Fugitt v. State, 251 Ga. 451, 452–453, 307 S.E.2d 471 (1983). The fact that a witness' testimony may contain inconsistencies does not, standing alone, rise to the level of false swearing necessary to justify striking the testimony. Brooker v. Brown, 307 Ga.App. 10, 11, 703 S.E.2d 692 (2010). See Hardy v. State, 293 Ga.App. 265, 268, 666 S.E.2d 730 (2008).

Moreover, Rakestraw's identification of Sanders is supported by circumstantial evidence. Sanders' DNA was found on the inside cracked windshield of the vehicle—presumably left there when Sanders hit his head at the time of impact with Akins' vehicle. Likewise, the presence of Sanders' fingerprints on the exterior driver's side of the car and the presence of his backpack inside the car are consistent with the fact that he was a party to the crimes. Accordingly, Rakestraw's credibility was an issue for the jury to decide. Rucker v. State, 272 Ga. 750, 751, 534 S.E.2d 71 (2000).

Having rejected Sanders' contention that the jury was required to disregard Rakestraw's testimony, this Court finds no merit to Sanders' claim that his conviction was based upon insufficient circumstantial evidence. There was direct evidence of Sanders' guilt, thus his reliance on OCGA § 24–4–6 is misplaced.² Wallace v. State, 279 Ga. 26, 27, 608 S.E.2d 634 (2005).

2. Sanders challenges his conviction for felony murder while in the commission of an armed robbery and aggravated assault. He asserts that the armed robbery cannot serve as a predicate for felony murder in his case because the escape phase of the armed robbery had terminated prior to his flight from the police. Sanders argues that the underlying felony offense of armed robbery had ended prior to the accident leading to the victim's death, because at the time the police initially located and approached the Maxima, it was at a standstill at a red light—a place of “seeming security,” Collier v. State, 244 Ga. 553, 560, 261 S.E.2d 364 (1979), overruled on other grounds, Thompson v. State, 263 Ga. 23, 25, 426 S.E.2d 895 (1993). There is no merit to Sanders' argument.

Generally, whether a felony is terminated is a question of fact for the jury unless the evidence is so overwhelming that reasonable men could not differ. Collier, supra, at 562, 261 S.E.2d 364. The evidence shows that Sanders was being pursued by the police when he was at the stop light—he was at a standstill only because there was a truck in front of him and he could not advance until the light turned green. The jury was properly instructed concerning escape, as well as on the elements of felony murder with the underlying offense of armed robbery and aggravated assault. Further, as Sanders voiced no objection to the jury charge as given other than to renew his request for a lesser included offense, absent plain error this issue is precluded from appellate review pursuant to OCGA § 17–8–58(b). State v. Kelly, 290 Ga. 29, 32(1), 718 S.E.2d 232 (2011); Collier v. State, 288 Ga. 756, 759, 707 S.E.2d 102 (2011). Finding no error on the part of the trial court or the jury, we reject Sanders' claim.

3. Sanders next argues that the trial court erred by permitting the prosecutor to violate the “golden rule” during his opening statement and closing argument.³ Sanders contends that the logical inference from the prosecutor's comments in his opening statement and closing argument is “it could have been me”; thus these statements improperly invited the jurors to place themselves in the shoes of the deceased victim. Pace v. State, 271 Ga. 829, 844, 524 S.E.2d 490 (1999); McClain v. State, 267 Ga. 378, 383, 477 S.E.2d 814 (1996). As Sanders failed to interpose a contemporaneous objection to the prosecutor's comments, this issue likewise has not been preserved for review. Watson v. State, 278 Ga. 763, 775, 604 S.E.2d 804 (2004). Nonetheless, we conclude the prosecutor's remarks did not violate the golden rule. See Hines v. State, 246 Ga.App. 835, 837, 541 S.E.2d 410 (2000) (requests to convict for the safety of the community have been permitted). Accordingly, Sanders' additional argument that defense counsel was ineffective for failing to object to these statements lacks merit. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

4. Sanders also asserts that the trial court erred by allowing the prosecutor to comment on Sanders' failure to come forward after his escape from police.⁴ It is a bright-line rule in Georgia that the State may not comment on either a defendant's silence prior to arrest or failure to come forward voluntarily. Reynolds v. State, 285 Ga. 70, 673 S.E.2d 854 (2009); Landers v. State, 270 Ga. 189, 190, 508 S.E.2d 637 (1998); Mallory v. State, 261 Ga. 625, 629–630(5), 409 S.E.2d 839 (1991), overruled on other grounds, Clark v. State, 271 Ga. 6, 9–10(5), 515 S.E.2d 155 (1999). Finding such comments to be far more prejudicial than probative, this Court has determined that they are not to be permitted even in situations in which the defendant has not received Miranda warnings or takes the stand in his own defense. Mallory, supra at 630 (5), 409 S.E.2d 839. However, evidence as to whether a defendant tried to evade capture is admissible as evidence of flight. Renner v. State, 260 Ga. 515, 517–518, 397 S.E.2d 683 (1990). Further, statements about flight are proper as circumstantial evidence of guilt. Evans v. State, 288 Ga. 571, 574–575, 707 S.E.2d 353 (2011).

In the instant case, there was no contemporaneous objection to the argument; therefore, Sanders' claim of trial court error is waived for purposes of appeal. Martin v. State, 281 Ga. 778, 780(2), 642 S.E.2d 837 (2007). “[T]he burden is always on the appellant in asserting error to show it affirmatively by the record.” (Punctuation omitted.)...