Sharpe v. the State.

• Decision Date: 28 February 2011
• Docket Number: No. S10A1883.,S10A1883.
• Citation: 288 Ga. 565,707 S.E.2d 338
• Parties: SHARPEv.The STATE.
• Court: Georgia Supreme Court

288 Ga. 565

707 S.E.2d 338

11 FCDR 112

SHARPE

v.The STATE.

No. S10A1883.

Supreme Court of Georgia.

Jan. 24, 2011.Reconsideration Denied Feb. 28, 2011.

Steven L. Sparger, Savannah, for appellant.Spencer Lawton, Jr., District Attorney, Julayaun M. Waters, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, David A. Zisook, Assistant Attorney General, for appellee.MELTON, Justice.

Following his conviction for murder, aggravated assault, and possession of a firearm during the commission of a crime, Montrell Sharpe appeals, contending that the trial court made numerous errors and that he received ineffective assistance of counsel.¹ For the reasons set forth below, we affirm Sharpe's convictions but remand for resentencing.

1. In the light most favorable to the verdict, the record shows that, on November 1, 2006, Chris Holloway, Jamel Harrison, and Jamari Tilley were standing on the front porch of Holloway's house. Sharpe then pulled up in a gold Chevrolet, said “what's up,” and opened fire. Holloway was shot in the leg, and Harrison was shot in the torso. Harrison later died. Holloway, who had known Sharpe for three years, told police that he had seen Sharpe in the driver's seat of the passing car and that he believed that Sharpe shot at them, although he did not see a gun.² Tilley, however, testified that he saw the driver of the car holding a gun and shooting out the window at them. Tilley's description of the gunman was consistent with Sharpe's features. Further testimony showed that, approximately one month before the shooting now in question, Sharpe tried to shoot Holloway with a gun over a debt.

This evidence was sufficient to enable the jury to find Sharpe guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Sharpe contends and the State concedes that the trial court erred in sentencing Sharpe by failing to merge his conviction for the aggravated assault of Harrison into his conviction for the murder of Harrison. “Although there is no merger of these crimes as a matter of law, our review of the record establishes that the aggravated assault conviction[ ] merged into the malice murder conviction[ ] as a matter of fact.” (Citation omitted.) Vergara v. State, 287 Ga. 194, 196(1)(b), 695 S.E.2d 215 (2010). As a result, the conviction and sentence for the aggravated assault of Harrison must be vacated and the case remanded to the trial court for resentencing. Id.³

3. Sharpe argues that the trial court erred by denying his motion to strike Juror No. 32 for cause. During voir dire, Juror No. 32 testified that, in the past, he had spent two years teaching police departments how to perform underwater searches for bodies and evidence. When Juror No. 32 was asked if this would bias him in favor of police officers, he responded: “Probably I would (inaudible) their words more than anybody else.” Upon further questioning, however, Juror No. 32 stated unequivocally that he could view all of the evidence fairly and impartially. In these situations,

[t]he trial court has wide discretion in deciding whether a juror should be excused for cause. Taylor v. State, 243 Ga. 222, 253 S.E.2d 191 (1979). The fact that a juror has formed an opinion about the credibility of a witness does not mandate that he be excused for cause. Tennon v. State, 235 Ga. 594, 220 S.E.2d 914 (1975), cert. den. 426 U.S. 908, [96 S.Ct. 2231, 48 L.Ed.2d 833] (1976). Where an otherwise qualified juror indicates that he can and will fairly evaluate the evidence, the party who wishes to eliminate him must do so by means of the peremptory strike. There was no abuse of discretion in the trial court's failure to strike this prospective juror for cause.

Foster v. State, 248 Ga. 409, 411(3), 283 S.E.2d 873 (1981).

4. Sharpe contends that the trial court erred by admitting an array of photos, including his own, that he contends were obviously mug shots or booking photographs relating to a prior crime. More specifically, Sharpe argues that the use of his mug shot in the photo array improperly placed his character into evidence. The record shows that, on or about November 2, 2006, Holloway was shown a photo array from which he identified Sharpe. Based on our review of the photo array, it does appear that the photographs are mug shots. Sharpe was not arrested until January 7, 2007; therefore, the mug shot used in the photo array could not have been related to the crime for which he was currently being tried and forms the basis of this appeal. To the contrary, the mug shot would have to be related to a prior crime. In general, mug shots of a defendant taken after arrest with regard to the crime for which he is currently being prosecuted do not prejudice the defendant. See, e.g., Rittenhouse v. State, 272 Ga. 78, 79(3), 526 S.E.2d 342 (2000) (“booking photographs have been held not to inject character into evidence because they do not suggest that the defendant has committed previous crimes”). If a mug shot relating to a previous crime is introduced into evidence, however, “such a photograph is the equivalent of oral testimony establishing [the defendant's] arrest for a prior crime and would therefore impermissibly place his character in evidence.” Roundtree v. State, 181 Ga.App. 594, 353 S.E.2d 88 (1987) (introduction of photograph with caption indicating date of a prior arrest impermissibly placed defendant's character in evidence). Accordingly, the trial court erred by admitting Sharpe's mug shot from a prior arrest. This error, nonetheless, proves harmless in this case, based on the overwhelming evidence of Sharpe's guilt.

5. Sharpe contends that the trial court gave the jury an unrequested and inappropriate Allen charge. The record shows that, after two hours of deliberation, the jury foreman informed the court that the jurors were split and could not reach a verdict. The foreman further indicated that the jurors were displeased with the presentation of evidence from both the State and the defense. The trial court responded to the foreman's statement by giving the jury what appeared to be, in essence, an abbreviated Allen charge. The trial court instructed:

Somebody is going to have to decide this case, okay? And there's no reason to think that the next jury that gets it is going to be any different than you. Or that the case is going to be tried any differently. The witnesses are the witnesses, the law is the law, the photographs are the photographs. What I'm going to do is send you home for the evening. We can't feed you down here tonight. And get a fresh start tomorrow. And I may give you some additional instructions about the need to work for unity and to decide the case. And I will have some instructions probably for you tomorrow on that. But let's get a fresh start. And you take the cases the way they are and then you decide them. And I have to do the same thing, I take the cases the way they are and I have to decide them on the cases that I decide. So, this one is given to you to decide.

In Burchette v. State, 278 Ga. 1, 596 S.E.2d 162 (2004), this Court disapproved of language instructing jurors that a case “must be decided” by some jury. We determined, however, that the inclusion of such language would not create reversible error where that language was only a small part of an otherwise fair and non-coercive charge. Id. at 6, 596 S.E.2d 162. In such cases, the offending language does not cause the charge to become so “coercive so as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.” (Citation and punctuation omitted.) Luker v. State, 291 Ga.App. 434, 436(2), 662 S.E.2d 240 (2008). Moreover, even in situations where the questionable language is more prominent, other factors, such as the length of deliberations following the Allen charge and the results of polling the jury on the verdict, may be considered to determine whether a given charge is unduly coercive or not.

[T]hese factors play an important role in determining coerciveness when there is a possibility the charge could be coercive, i.e., when it has not been determined as a matter of law that the charge is not coercive. See Widner v. State, 280 Ga. 675(3), 631 S.E.2d 675 (2006) (where this Court determined Burchette was to be applied prospective only and, relying on Hyde v. State, 196 Ga. 475(8), 26 S.E.2d 744 (1943), held that the version of the Allen charge at issue in Widner was not coercive, with no consideration given to the length of the jurors' deliberations or the result of polling the jury).

Lowery v. State, 282 Ga. 68, 72(4)(a), 646 S.E.2d 67 (2007). Based on these factors, the record in this case would not support a finding that the trial court's Allen charge improperly coerced the jury,...