Speed v. State
| Decision Date | 01 March 1999 |
| Docket Number | No. S98P1359.,S98P1359. |
| Citation | 512 S.E.2d 896,270 Ga. 688 |
| Parties | SPEED v. The STATE. |
| Court | Georgia Supreme Court |
OPINION TEXT STARTS HERE
Michael Mears, Multicounty Public Defender, James C. Bonner, Jr., Georgia Indigent Defense Council, Atlanta, for Norris Speed.
Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Peggy Ann Katz, David Ellis Langford, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Paige Reese Whitaker, Asst. Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State.
Stephen Christopher Bayliss, Atlanta, Joseph L. Chambers, Sr., Prosecuting Attorney's Council of GA, Smyrna, for other interested parties. FLETCHER, Presiding Justice.
A jury convicted Norris Speed of malice murder in the shooting death of Atlanta Police Officer Niles Johantgen, and Speed was sentenced to death.1 The jury found as aggravating circumstances that the murder was committed against a peace officer while engaged in the performance of his official duties2 and that the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest of the defendant or another.3 Speed challenges the trial court's in-camera conversation with a prospective juror, its evidentiary ruling limiting the defense psychologist's testimony, and its failure to give charge number 21. We conclude that Speed waived his right to be present during the in-camera questioning of the prospective juror and did not object when the juror was excused for cause, the record shows that the defense psychologist testified about the basis for his opinion including the persons he interviewed and Speed's family history, and the trial court was not required to give charge number 21 on when police may make a warrantless arrest. Because none of the issues raised constitute reversible error, we affirm.
The evidence shows that Norris Speed was a drug dealer who sold drugs in the Thomasville Heights area of Atlanta. Officer Johantgen was a uniformed patrol officer whose regular beat included the Thomasville Heights apartments. On December 13, 1991, an Atlanta police undercover officer arrested Jose Griffin, who worked for Speed, after he had fled into Speed's grandmother's apartment. The police confiscated $2,880 and 100 grams of cocaine during this arrest. The police also noticed some marijuana on a table in the apartment, and they returned with an arrest warrant for Speed's grandmother. Although Officer Johantgen was not involved in the undercover operation, he accompanied the other officers when they served the warrant. Speed told his drug ring boss that he believed the raid resulting in the loss of the drugs and money was "influenced by" Officer Johantgen. He told another witness that he planned to kill "the Russian" (Officer Johantgen's nickname).
On December 21, 1991, Officer Johantgen pulled into the parking lot of the Thomasville Heights apartments, got out of his car, and approached several men. He detained one of the men and began to frisk him. Speed walked up behind Officer Johantgen and shot him point-blank in the back of the head with a nine-millimeter pistol, killing him instantly. Speed fired four more times at the officer while he was on the ground, but all of these shots missed and shattered on the pavement. Speed then fled the scene in a car. At trial, one witness testified that he saw Speed, who was well-known in the area, walk up behind the officer and fire the fatal shot into his head. Five more witnesses testified that they heard the first shot, looked up, and saw Speed shooting at the officer on the ground.
After Speed fled, he met with his drugring boss and told him that he had shot the Russian because Officer Johantgen had threatened to "catch him dirty" and because the officer was harassing people and searching them unnecessarily. Speed's girlfriend heard him tell his drug boss that he shot the Russian. Both Speed's drug boss and his girlfriend testified at trial. Speed was arrested two days after the crime and he confessed that he shot Officer Johantgen.
1. After reviewing the evidence in the light most favorable to the jury's determination of guilt, we conclude that a rational trier of fact could have found Speed guilty of malice murder beyond a reasonable doubt.4 The evidence was also sufficient to enable the jury to find the existence of the statutory aggravating circumstances beyond a reasonable doubt.5
2. Speed complains that the trial court questioned a prospective juror on voir dire in camera without Speed or his counsel present. The prospective juror claimed that he could not be impartial because he had overheard a conversation about the case at his workplace, but the juror refused to divulge what he had heard.6 Speed initially objected to the trial court questioning the juror in camera without the parties but later agreed to the procedure, saying "I'm not happy ... but I would prefer that procedure over not talking to him at all." Speed made no further objection after the in-camera questioning was completed, and the juror was excused for cause due to his inability to be impartial.
A defendant and his counsel have a constitutional right to be present at every stage of the defendant's trial, including voir dire.7 This right, however, may be waived by the defendant personally, or by his counsel if done in the defendant's presence.8 The record shows that Speed waived his right to be present during the in-camera questioning of the prospective juror, and he made no objection when the prospective juror was excused for cause. Therefore, this issue is waived on appeal.9
3. The trial court did not err by excusing for cause four prospective jurors due to their inability to consider a death sentence.10 The trial court also did not err by qualifying seven prospective jurors who Speed claims would automatically vote for a death sentence.11
4. No prospective jurors were erroneously qualified to serve due to their exposure to pretrial publicity; the seven jurors about whom Speed specifically complains did not have opinions so fixed and definite that they could not set them aside and render a decision based solely on the evidence presented in court.12 The trial court also did not err by denying Speed's motion for a change of venue.13
5. Prospective jurors Foley, Miller, Lindsey, and Pittman were not erroneously qualified to serve for any reason stated by Speed.
6. The trial court did not err by denying Speed's Batson v. Kentucky14 motion. The reasons given by the state for the exercise of its peremptory strikes were race-neutral and sufficient.15
7. During voir dire, a prospective juror stated that she believed that the justice system was biased against African-Americans and that she has "an awareness" that the death penalty is sought more for black defendants who kill white victims (Speed is African-American and the victim was white). When the prosecutor asked her how strongly she held this belief, Speed's counsel objected to this line of questioning saying, in front of the juror, The trial court told Speed's counsel that it was not the proper time to testify. Later, the state moved to excuse this prospective juror for cause based on defense counsel's comment, and the trial court excused her. We find no error. 16 We conclude that the trial court did not abuse its discretion in excusing this prospective juror for cause due to bias resulting from defense counsel's comment.17
8. It was not improper for the state to introduce evidence of Speed's drug dealing and to refer to Speed as a drug dealer. Speed's drug dealing was relevant to his motive for the murder, and relevant evidence does not become inadmissible simply because it incidentally places a defendant's character into evidence.18 9. The state's introduction of a previous homicide committed by Speed as a similar transaction was not error. 19
10. Speed's arrest was lawful and his confession was voluntary.
11. It is not error to allow the jury to have a written transcript of tape-recorded evidence when a proper foundation has been made.20 Although Speed complains that he was not provided before trial with the transcript of the audiotape of the police radio traffic at the time of Officer Johantgen's death, he did not object to the use of the transcript at trial or argue that any portion of the transcript differed from the audiotape.21 The jury was also instructed that the transcript was not evidence.22 Therefore, this contention is without merit.
12. The trial court did not err by denying Speed's motion for mistrial because there was insufficient evidence that the state had violated the trial court's gag order.
13. Speed did not object when the victim's widow identified the victim in a photograph taken when he was alive, but did object that the photograph was irrelevant and inflammatory when it was later admitted into evidence. Under these circumstances, we find no error.23
14. The trial court did not abuse its discretion in admitting pre-autopsy photographs of the deceased victim.24 The admission of crime scene photographs was also not error.
15. The trial court did not abuse its discretion by allowing the state to use a mannequin dressed in the victim's jacket as a demonstrative tool during the questioning of the medical examiner.25 The medical examiner used the mannequin to illustrate for the jury how...
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