Sharpe v. State

• Decision Date: 30 May 2000
• Docket Number: No. S00A0985-S00A0988.
• Citation: 531 S.E.2d 84,272 Ga. 684
• Parties: SHARPE v. The STATE. Wiggins v. The State. Shipman v. The State. Mobley v. The State.
• Court: Georgia Supreme Court

531 S.E.2d 84

272 Ga. 684

SHARPE v. The STATE.

Wiggins v. The State.

Shipman v. The State.

Mobley v. The State.

Nos. S00A0985-S00A0988.

Supreme Court of Georgia.

May 30, 2000.

Reconsideration Denied July 28, 2000.

Salter & Shook, Jason A. Craig, Vidalia, for appellant (case no. S00A0985).

Thomas J. O'Donnell, Jr., Sandersville, for appellant (case no. S00A0986).

Stubbs & Associates, M. Francis Stubbs, Reidsville, for appellant (case no. S00A0987).

Kathy S. Palmer, Swainsboro, for appellant (case no. S00A0988).

Richard A. Malone, District Attorney, Samuel H. Altman, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Wesley S. Wood, Assistant Attorney General, for appellee. CARLEY, Justice.

Dennis Lee Sharpe, Rusty Wiggins, Richard Shipman, and Steve Morrell Mobley (Appellants) were tried jointly for the malice murder of Keibu Scott. The jury found all of the Appellants guilty, and the trial court sentenced each to life imprisonment. Appellants filed separate motions for new trial, which the trial court denied in an extensive order. They also filed separate notices of appeal, and the cases have been consolidated for purposes of appellate review.¹

1. Construed most favorably in support of the verdicts, the evidence shows that Shipman was storing some drugs in a friend's apartment in Lyons. Scott, the murder victim, and another man broke into the apartment, pointed guns at the occupants, and stole the drugs. Shipman learned about the robbery and, a few days later, he and the three other Appellants took a taxi to Vidalia. There, Wiggins, Mobley, and Sharpe visited LaWanda Roundtree at her apartment, and later Wiggins returned to that apartment alone. Shortly thereafter, the Appellants, one of whom had a handgun with a red laser sight, entered the apartment of Scott's girlfriend and her sister, Tiffany Dixon, which was two doors down from Ms. Roundtree's residence. Three of the Appellants took Scott out of the apartment into the woods, while a fourth stayed with Ms. Dixon for a short time. Subsequently, Scott was struck in the face and was shot twice with two different weapons. These injuries resulted in Scott's death. Ms. Roundtree heard the gunshots soon after Wiggins' second visit. Wiggins, Mobley, and Sharpe took a taxi back to Lyons, but Shipman called his girlfriend, Debra Toby, who drove him back home. During a police interview, Shipman acknowledged ownership of a handgun with a red laser sight and turned it over. Ms. Toby subsequently told police that Shipman admitted to her that Appellants had killed Scott. At trial, however, she recanted this statement and denied that Shipman made the admission. In discussions with the police, Sharpe admitted his presence at the scene, but stated that he ran away before the shooting.

Appellants contend that the evidence showed no more than the presence of each of them at the scene of the crime, and was not sufficient for a jury to find them guilty as parties to the crime of malice murder. However, the jury could infer from the conduct of Appellants throughout the day of the shooting that each of them aided and abetted in the murder or intentionally advised, encouraged, or counseled the others to commit that crime. See Johnson v. State, 269 Ga. 632, 634, 501 S.E.2d 815 (1998); Simpson v. State, 265 Ga. 665-666, 461 S.E.2d 210 (1995); Satterfield v. State, 256 Ga. 593, 594(1), 351 S.E.2d 625 (1987). Appellants particularly attack the credibility of Ms. Toby's statements to the police, in light of her recantation at trial. In discharging its duty to evaluate the credibility of witnesses, however, the jury was authorized to believe Ms. Toby's inculpatory pre-trial statements and to reject her exculpatory testimony at trial. Berry v. State, 268 Ga. 437, 438(1), 490 S.E.2d 389 (1997). Ms. Dixon's testimony and Shipman's statements to Ms. Toby, along with considerable corroborating evidence, proved that all of the Appellants participated in the murder pursuant to a plan to retrieve the stolen drugs and to kill Scott. In fact, they were dressed in dark clothing, and at least three carried guns. One went to the back door, apparently to prevent Scott's escape. After taking Scott outside, they left a guard with Ms. Dixon, said something like "we got what we want," and threatened to kill her also. The evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that each of the Appellants was a party to the crime of malice murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); McKenzie v. State, 271 Ga. 47(1), 518 S.E.2d 404 (1999); Crumbley v. State, 264 Ga. 829, 830(1), 452 S.E.2d 106 (1995); Chapman v. State, 263 Ga. 393, 435 S.E.2d 202 (1993). Accordingly, the trial court correctly denied their motions for directed verdict.

2. Appellants urge that the trial court erred in denying their motions for severance of the trials.

In a non-death penalty case, "`(t)he defendant requesting a severance has the burden of making a clear showing of prejudice and a denial of due process in the absence of severance.'" Butler v. State, 270 Ga. 441, 446(4), 511 S.E.2d 180 (1999). According to Appellants, the number of defendants created confusion, and they point to the fact that one juror asked the trial court to place nameplates in front of them. However, the record does not indicate anything more than this one, slight instance of confusion early in the trial, which the trial court handled without objection by having the defense attorneys introduce their clients.

There was no danger of prejudicial evidentiary overlap, as Sharpe's statements were the only evidence which was not admissible against all Appellants equally. The trial court protected the co-defendants by redacting Sharpe's statements and informing the jury that the statements were admissible only against him. Butler v. State, supra at 447(4), 511 S.E.2d 180; Bryant v. State, 270 Ga. 266, 269(2), 507 S.E.2d 451 (1998). Furthermore, there was no showing that, if they had been tried separately, any of the Appellants would have been more likely to testify. Felder v. State, 270 Ga. 641, 644(5), 514 S.E.2d 416 (1999); Owen v. State, 266 Ga. 312, 314(2), 467 S.E.2d 325 (1996). While Appellants' defenses were not identical, neither were they antagonistic. Indeed, none of them presented any evidence at trial. Bryant v. State, supra at 270(2), 507 S.E.2d 451. The trial court did not abuse its discretion in denying Appellants' motions for severance.

3. Relying upon Johnson v. State, 260 Ga. 17, 19(4), 389 S.E.2d 238 (1990), Appellants contend that the trial court erred in admitting the pre-trial statements of Ms. Toby as prior inconsistent statements and as substantive evidence. Under Johnson, a prior inconsistent statement is inadmissible in the absence of some showing that the witness who testified inconsistently at trial either had personal knowledge or had received information directly from one of the defendants themselves. In her previous statements to the police, Ms. Toby clearly identified Shipman as the source of her information. Thus, the State satisfied the requirement of Johnson, and the trial court correctly admitted Ms. Toby's prior inconsistent statements as both impeaching and substantive evidence. See Campbell v. State, 263 Ga. 824, 826(4), 440 S.E.2d 5 (1994).

4. Appellants also contend that the trial court erred in admitting, under the co-conspirator exception to the hearsay rule, the statements attributed to Shipman by Ms. Toby. The specific objection is that there were not sufficient indicia of reliability to ensure that their Sixth Amendment rights were not violated.

Appellants do not contend that the State failed to make a satisfactory prima facie showing of conspiracy. Instead, they focus on the credibility of Ms. Toby in light of her recantation. The appropriate inquiry, however, is the reliability of the statement of the co-conspirator declarant, rather than that of the testifying witness who was subject to cross-examination. Copeland v. State, 266 Ga. 664, 666(2)(b), 469 S.E.2d 672 (1996). When Shipman's statements are properly analyzed, the relevant factors weigh heavily in favor of this reliability. Ottis v. State, 269 Ga. 151, 155-156(3), 496 S.E.2d 264 (1998); Fetty v. State, 268 Ga. 365, 371-372(7), 489 S.E.2d 813 (1997); Copeland v. State, supra at 665-666(2)(b), 469 S.E.2d 672. Therefore, Shipman's statements were admissible under the co-conspirator exception to the hearsay rule.

5. Mobley, Sharpe, and Shipman enumerate as error the trial court's denial of their motions for mistrial, on the ground that comments by Juror Curry during voir dire tainted the entire jury panel and prevented a fair trial. Curry stated that, before he retired from his employment with the county, he may have used "these boys" for work at the jail. Mobley, Sharpe, and Shipman complain that this remark constituted both an indication of incarceration and a racial epithet. See Kornegay v. State, 174 Ga.App. 279, 329 S.E.2d 601 (1985).

"The time for making a motion for mistrial is not ripe until the case has begun, and the trial does not begin until the jury has been impaneled and sworn." Ferguson v. State, 219 Ga. 33, 35(3), 131 S.E.2d 538 (1963). Therefore, the trial court correctly refused to declare a mistrial. Ferguson v. State, supra at 35(3), 131 S.E.2d 538; Loaiza v. State, 186 Ga.App. 72, 73(2), 366 S.E.2d 404 (1988). Appellants did not utilize the proper procedural tool, which "`was either a "challenge to the poll" (cits.) or a motion for a postponement to impanel other jurors who had not heard the remark.' [Cit.]" Callaway v. State, 208 Ga.App. 508, 511(2), 431 S.E.2d 143 (1993). However, there is authority for disregarding the nomenclature of a defendant's premature motion for mistrial when the clear import of the motion is that the jury panel be excused and...