Sears v. State, S12A1211.

CourtSupreme Court of Georgia
Citation734 S.E.2d 345,292 Ga. 64
Docket NumberNo. S12A1211.,S12A1211.
PartiesSEARS v. The STATE.
Decision Date19 November 2012

292 Ga. 64
734 S.E.2d 345


No. S12A1211.

Supreme Court of Georgia.

Nov. 19, 2012.

[734 S.E.2d 348]

Steven Lee Sparger, Savannah, for appellant.

Brittany Nicole Jones, Asst. Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Department of Law, Larry Chisolm, Dist. Atty., Reginald Charles Martin, David E. Perry, Chief Asst. Dist. Atty., Office of the District Attorney, for appellee.


[292 Ga. 64]Robert Allen Sears was tried by a Chatham County jury and convicted of the murder of Isaiah Lovett, aggravated assault, and possession of a knife during the commission of a felony. Following the denial of his motion for new trial, Sears appeals and asserts several claims of error, including that the trial court erred when it failed to merge the aggravated assault into his murder conviction. We agree with Sears that the failure to merge was error, and we vacate his conviction for aggravated assault and remand for the trial court to sentence him again. We find no merit in the other claims of error, however, and we otherwise affirm the judgment of the trial court.1

[734 S.E.2d 349]

[292 Ga. 65]1. Construed most strongly in support of the verdict, the evidence shows that Sears went on the morning of August 29, 2008 to the Savannah boarding house in which Lovett lived. Several residents overheard Sears banging on the door to Lovett's room and yelling about a lawnmower that Lovett apparently had borrowed. A neighbor saw Lovett emerge from his room, and he observed Lovett and Sears engaged in a physical altercation, which left Lovett bleeding profusely from several stab wounds. Lovett subsequently died of those stab wounds. Although no one testified that he saw Sears with a knife during the altercation, Sears's shirt was covered in blood afterwards, and he was seen with a knife as he fled from the boarding house.

When Sears was apprehended by law enforcement later that morning, the blood of the victim was found on his hat, and lacerations consistent with the stabbing of Lovett were observed on his hands. While Sears was in jail, he told another inmate that he killed Lovett, and he said that he hid the knife, as well as the shirt that he had been wearing at the time of the stabbing, inside a shed on property on which he had been staying. The inmate informed law enforcement of the confession, and when police officers went to the shed, they found the knife and shirt, on both of which was Lovett's blood.2 The evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Sears was guilty of 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).

2. We turn now to the contention that the trial court erred when it failed to excuse a certain prospective juror for cause. During voir dire, this prospective juror said that she “tend[ed] to put a lot of weight on what law enforcement people, what their opinions are.” [292 Ga. 66]She also said that the criminal justice system has numerous “loopholes” that allow guilty persons to “get[ ] off scot free just because one little thing wasn't done,” that she “sometimes think[s] that there are more rights for criminals ... than ... victims,” and that the criminal justice system involves a “revolving door” by which persons are released from prison only to commit crimes again. Whether a prospective juror should be excused for cause is committed to the discretion of the trial court, and as we have acknowledged before, the discretion of the trial court in this respect is broad. Sharpe v. State, 288 Ga. 565, 566(3), 707 S.E.2d 338 (2011). See also Harrison v. State, 309 Ga.App. 454, 454(1), 711 S.E.2d 35 (2011) (“A trial judge is uniquely positioned to evaluate whether a prospective juror can render an impartial verdict, considering that the trial judge, unlike appellate judges, can observe a prospective juror in person and take account of her demeanor and countenance, not just the words that she speaks.”). We review the failure to excuse a prospective juror for cause only for an abuse of discretion, Herrera v. State, 288 Ga. 231, 235(6), 702 S.E.2d 854 (2010), and we see no abuse of discretion here.

A trial court should excuse a prospective juror for cause when it appears that the juror “holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to

[734 S.E.2d 350]

set the opinion aside and decide the case based upon the evidence and the court's charge upon the evidence.” Cade v. State, 289 Ga. 805, 807(3), 716 S.E.2d 196 (2011) (citation omitted). That a prospective juror has expressed a generalized belief about the credibility of law enforcement officers does not require that she be excused for cause, so long as the juror appears willing and able to fairly and impartially consider the evidence, her generalized belief notwithstanding. See, e.g., Foster v. State, 248 Ga. 409, 410–411(3), 283 S.E.2d 873 (1981) (that prospective juror indicated that he would tend to believe the testimony of law enforcement officers whom he had known for his whole life over the testimony of persons whom he did not know did not require that he be excused for cause, especially where he assured that he would impartially and fairly evaluate the testimony given at trial); Tennon v. State, 235 Ga. 594, 596(2), 220 S.E.2d 914 (1975) (that prospective jurors expressed a “belief in the truthfulness of police officers” did not require that they be excused for cause). Likewise, that a prospective juror has expressed some generalized concerns about the criminal justice system does not require that she be excused for cause. Cf. Rice v. State, 292 Ga. 191, ––––(3)(b), 733 S.E.2d 755 (2012) (that prospective juror expressed frustration about prosecution of crimes of which his sister was a victim did not require that the juror be excused for cause).

[292 Ga. 67]The prospective juror at issue in this case never indicated that she had formed a fixed and definite opinion about whether Sears was guilty of the crimes with which he was charged. See Hargett v. State, 285 Ga. 82, 84(3)(b), 674 S.E.2d 261 (2009). To the contrary, she explained that she “believe[d] in being true and fair and honest and trying to judge things accordingly....” For these reasons, we cannot say that the trial court abused its broad discretion when it declined to excuse this prospective juror for cause. Hubbard v. State, 285 Ga. 791, 793(2), 683 S.E.2d 602 (2009); Holmes v. State, 269 Ga. 124, 126(2), 498 S.E.2d 732 (1998).

3. We next consider the contention that a mistrial was necessary after a detective testified that, “when I read [Sears] his constitutional rights, he invoked[,] so he refused ... he refused to give a statement as to what happened.” On appeal, Sears argues that this testimony amounted to an improper comment upon his invocation of the right to remain silent and that it was sufficiently prejudicial to require a mistrial. But at trial, Sears said nothing about a comment upon his silence. Instead, Sears told the trial court that a mistrial was necessary because the detective had improperly commented upon his invocation of the right to counsel. For this reason, whether Sears adequately preserved the claim of error that he urges on appeal—that a mistrial was required by an improper comment upon his silence—is doubtful. 3 See Wallace v. State, 272 Ga. 501, 503(2), 530 S.E.2d 721 (2000) (defendant failed to preserve claim that testimony improperly commented upon his exercise of right to remain silent where he failed to object on that ground at trial and instead objected only that the testimony was “unfair” and “prejudicial”); see also Allen v. State, 272 Ga. 513, 515(5), 530 S.E.2d 186 (2000).

Nevertheless, even assuming that this claim of error was adequately preserved, it is without merit. It is true enough that testimony commenting upon the silence of the accused is, generally speaking, “far more prejudicial than probative.” Patterson v. State, 285 Ga. 597, 602(5)(b), 679 S.E.2d 716 (2009). But the improper admission of prejudicial testimony does not always require a mistrial. See Allen, 272 Ga. at 515(5), 530 S.E.2d 186. A motion for mistrial is committed to the discretion of the trial court, Rafi v. State, 289 Ga. 716, 720(4), 715 S.E.2d 113 (2011), and ordinarily, the denial of such a motion amounts to an [292 Ga. 68]abuse of discretion only when “it is apparent that a mistrial is essential to the preservation of

[734 S.E.2d 351]

the right to a fair trial.” Brinson v. State, 289 Ga. 551, 552(2), 713 S.E.2d 862 (2011) (citation and punctuation omitted). Whether an improper comment upon the silence of the accused was harmful enough to imperil the fairness of the proceedings and to require a mistrial depends upon a number of circumstances, including the context of the improper comment, the prejudice generated by the comment, and the strength of the evidence of guilt adduced at trial. See Allen, 272 Ga. at 515–516(5), 530 S.E.2d 186.

Here, the detective made the comment at issue in response to questions about his awareness of any threats that might have been directed to Sears. These questions were put to the detective by defense counsel, and the prosecuting attorney asked no questions about Sears invoking his rights and did not attempt to make any use of the testimony that Sears had invoked his rights. Moreover, the evidence of guilt in this case was overwhelming. The jury heard the testimony of an eyewitness to the stabbing, as well as the testimony of witnesses who overheard Sears confronting the victim on the morning of the stabbing. The jury also heard the testimony of the inmate to whom Sears confessed, testimony that was corroborated by evidence that the inmate directed police officers to the location where the knife and bloody shirt had been stashed. And Sears himself admitted at trial that he was present...

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