Scott v. The State

• Decision Date: 27 August 2010
• Docket Number: No. A10A1661.,A10A1661.
• Parties: SCOTT v. The STATE.
• Court: Georgia Court of Appeals

305 Ga.App. 710

700 S.E.2d 694

SCOTT

v.The STATE.

No. A10A1661.

Court of Appeals of Georgia.

Aug. 27, 2010.

COPYRIGHT MATERIAL OMITTED.

James D. Lamb, Waycross, for appellant.

Julia F. Slater, Dist. Atty., LaRae D. Moore, Asst. Dist. Atty., for appellee.

BLACKBURN, Senior Appellate Judge.

Following a jury trial, Thomas A. Scott was found guilty of voluntary manslaughter, ¹ felony murder, ² aggravated assault, ³ POSSESSION OF A firearm during the commission of a crime, ⁴ AND possession of cocaine. ⁵ The trial court merged the aggravated assault and felony murder charges with the voluntary manslaughter charge, and convicted Scott on that and on the remaining charges. Scott now appeals from the denial of his motion for a new trial, asserting that the trial court erred in allowing argument and evidence as to the conduct of third parties, who allegedly attempted to intimidate two eyewitnesses to prevent them from testifying truthfully at trial. Scott further claims that his trial counsel was ineffective for failing to object to: (1) statements by the prosecutor, during his closing argument, that constituted an improper comment on Scott's constitutional right to remain silent; (2) the eyewitnesses' testimony regarding threats they received from the families and friends of both Scott and his co-defendant; and (3) hearsay testimony regarding a statement one of the eyewitnesses allegedly made to a police detective. Finding that trial counsel was ineffective for failing to object to the State's argument that the jury should view Scott's pre-arrest silence as evidence of his guilt, we reverse.

Viewed in the light most favorable to the verdict, Brown v. State, ⁶ the evidence showed that on June 3, 2004, two men were selling crack cocaine outside of an apartment complex in Columbus. The victim approached one of the men and asked to buy some crack, which the man obtained from his partner. The man held out the cocaine to show it to the victim, who grabbed a piece of the crack from the man's hand, put it in his mouth, and began running away. The man's partner then handed him a gun and the man began to chase the victim, firing shots in his direction. Two of the shots hit the victim, resulting in his death.

During their investigation of the incident, police located two eyewitnesses, Ron Blair and Tawanna Ford, each of whom identified Scott from a photographic lineup as the shooter. ⁷ Arrest warrants were issued for Scott and his co-defendant on June 10, 2004, and police attempted to arrest Scott at that time. They told Scott's mother, his current girlfriend, and his ex-girlfriend that they were attempting to locate Scott, but there was no evidence that this information was ever communicated to Scott. Police arrested Scott in September 2004, when they located him living just over the state line, in Alabama.

In his opening statement, the prosecutor asserted that the alibi witness for Scott's co-defendant, who was also his girlfriend, had been arrested for harassing and intimidating eyewitness Ford. The prosecutor further stated that Ms. Ford was “constantly harassed by individuals related to and befriend[ed] by both defendants.” Scott's attorney objected on the grounds that it was improper for the prosecutor to attribute such conduct by third parties to Scott. The trial court did not rule on the objection, but instead instructed the prosecutor to “move on” from the subject, stating, “I'm not in a position to fully understand that part of [the] case.” The trial court further noted that it had “told this jury in no uncertain terms that no lawyer's statement is evidence.”

At trial, each of the eyewitnesses testified that after they spoke with police, they had received threats of an unspecified nature. Specifically, Mr. Blair stated that he chose to testify at trial despite receiving both physical and verbal threats. In response to a question from defense counsel, Ms. Ford stated that she had been forced to move out of the apartment complex where the incident occurred because the families of both Scott and his co-defendant had come to her residence and threatened her. During her cross-examination, the co-defendant's alibi witness admitted that she had pled guilty to influencing a witness because of her conduct against Ms. Ford. There was no testimony or other evidence to indicate that these threats were done at the behest of or with the knowledge of either Scott or his co-defendant.

The detective who investigated the incident testified as to his interview with eyewitness Blair. During re-direct examination, the detective read from his notes on that interview and stated that Blair reported to him that he had spoken with Scott after the shooting, and Scott told him that “he [Scott] [screwed] up; he said he tried to shoot the guy in the legs.” Defense counsel offered no objection to this testimony, despite the fact that it constituted hearsay and that the State had failed to ask Blair, who had already testified, about this alleged statement.

Scott presented several witnesses in his defense, including the wife of eyewitness Blair. The wife testified that Blair had been at home with her at the time of the shooting and therefore could not have witnessed the same. She further stated that Blair had been threatened or intimidated by police and/or the prosecutor into testifying falsely. Additionally, a local community leader testified that he had been contacted by Blair and his wife about the case and that he had spoken with them on two occasions. Both times, Blair told him that he was being forced to give testimony in a case he “knew nothing about.”

When called to testify during Scott's case, Blair acknowledged that he had been told he had to testify or that he would face prosecution himself. ⁸ Blair further admitted that after he gave his statement to police, he told other people that he was not at the apartment complex in question on the night of the shooting. He explained, however, that this was because he had gone to the apartments to see a woman other than his wife.

Scott's current girlfriend testified that Scott had been with her, at her apartment, at the time of the shooting. A neighbor who went to the girlfriend's home shortly after the shooting testified that she saw Scott there, drinking beer and appearing very relaxed. Scott's current girlfriend, her neighbor, Scott's mother, and his ex-girlfriend all testified that, during the course of the trial, Blair had approached them in the hallway outside the courtroom. Blair told each of the women that he had not witnessed the shooting and that he was being forced to testify against Scott to avoid having charges brought against him.

During closing argument, the prosecutor noted the evidence showing that after the arrest warrant issued in June 2004, police had notified Scott's family and girlfriend that they were looking for him. Despite this fact, Scott failed to turn himself in. The prosecutor went on to argue that the jury should view this conduct as evidence of Scott's guilt, stating: “He was on the run. The good book sums up that behavior. The wicked man flees though no man pursues where the righteous stand bold as lions. If he [Scott] hadn't done anything, why would he run for three months? Why? Why not go in and give police a statement?” The prosecutor later reiterated his argument that “the wicked man flees but the righteous stand bold as lions.” Defense counsel offered no objection to these arguments.

At the motion for new trial hearing, defense counsel testified that he did not object to the eyewitnesses' testimony about the threats they received, because he had not received a ruling on the objection he made on this issue during the prosecutor's opening argument. He further explained that he did not think it was worth arguing in front of the jury “over something that I really didn't think was really that terribly damaging. I didn't think it was something so objectionable that I should have just jumped up and risked ... getting the jury angry with me.”

Trial counsel could offer no explanation for his failure to object to the hearsay testimony of the police detective regarding the statements made to him by eyewitness Blair. He further stated that he offered no objection to the prosecutor's closing argument about Scott's failure to turn himself in because he did not believe that it was objectionable. Specifically, trial counsel explained that he did not see that argument as a comment on his client's pre-arrest silence-i.e., a refusal by his client to give police any kind of statement.

The trial court found no merit in any of the grounds for a new trial asserted by Scott and therefore denied his new trial motion. Scott now appeals from that order.

1. Scott first argues that the trial court erred in refusing to sustain his objection to the prosecutor's statements during opening argument, that friends and relatives of Scott had threatened the two eyewitnesses, and in subsequently admitting testimony concerning those threats.

“[T]he trial court has a sound discretion to control the content of the opening statement of either party, particularly with regard to matters of questionable admissibility. We do not find that the trial court abused its discretion in this case.” (Citations omitted.) Sims v. State. ⁹ Scott correctly asserts “that an attempt by a third person to influence a witness not to testify or to testify falsely is relevant and may be introduced into evidence in a criminal prosecution on the issue of the defendant's guilt [only] where it is established that the attempt was made with the authorization of the accused.” (Punctuation omitted; emphasis supplied.) Kell v. State. ¹⁰ See also Johnson v. State ¹¹ (“evidence of a threat or attempt to influence a witness made by a third party must be linked to the defendant in order to be relevant to any material issues”). The record shows that the prosecutor never even attempted to link any of the alleged...