Thomas v. State

• Decision Date: 09 June 1997
• Docket Number: No. S97A0722,S97A0722
• Citation: 268 Ga. 135,485 S.E.2d 783
• Parties: , 97 FCDR 2026 THOMAS v. The STATE.
• Court: Georgia Supreme Court

Page 783

485 S.E.2d 783

268 Ga. 135, 97 FCDR 2026

THOMAS v. The STATE.

No. S97A0722.

Supreme Court of Georgia.

June 9, 1997.

Reconsideration Denied June 30, 1997.

Elaine Templeton McGruder, Atlanta, for Reginald D. Thomas.

Carl P. Greenberg, Asst. Dist. Atty., Fulton County Dist. Attys. Office, Atlanta, Deborah Lynn Gale, Asst. Atty. Gen., Dept. of Law, Atlanta, for State.

CARLEY, Justice.

A jury found Reginald D. Thomas guilty of one count of malice murder and two counts of aggravated assault. The trial court entered judgments of conviction on the jury verdicts. For the murder, the court sentenced Thomas to life imprisonment and, for the aggravated assaults, it sentenced him to two consecutive terms of 20 years. Thomas appeals. ¹

1. Construed most favorably for the State, the evidence is as follows: Thomas asked Delores Foster to rent a vehicle and, after co-defendant Damian Owens paid her, she rented a Mitsubishi for them. Subsequently, David Colbert and his companions exchanged words with some men in a Mitsubishi who threatened to shoot and made menacing gestures. However, someone in Colbert's group shot at the Mitsubishi first and, shortly thereafter, Thomas sought medical attention at a hospital for a gunshot wound to his arm. At the hospital, Thomas gave a false name and told a police officer that he had been caught in a crossfire while riding in the rented vehicle. Within an hour after Thomas left the hospital, someone fired about 12 rounds from a 9-millimeter pistol at a vehicle occupied by Colbert and his two companions. Colbert was killed and his two companions were injured. When Ms. Foster, who rented the Mitsubishi for Thomas and Owens, inquired about the bullet holes and other damage to the vehicle, Owens told her that "they" were caught in a crossfire. Just over a week later, Sir George Candy Franklin was driving a car with Thomas and Owens in the back seat and an older man in the front seat. When Franklin exited the car at a convenience store, he told East Point Police Officer Thomas Cherry that Thomas and Owens had kidnapped him at gunpoint. After asking Owens to exit the car, Officer Cherry removed a .357-caliber pistol from under Owens' belt. A 9-millimeter pistol was found under the car seat, but near the rear. The 9-millimeter pistol was turned over to the firearms examiner who determined that the bullets which caused the death of Colbert and injured Colbert's two companions were fired from that pistol. Owens admitted to police that he owned the gun which Officer Cherry took from him, but Owens denied possession of the 9-millimeter pistol.

Thomas contends that the 9-millimeter pistol did not connect him to the crimes because there were other persons in the car driven by Franklin. However, Owens was the only other person in the car who had any apparent motive to commit the crimes and Owens was armed with another gun. Taken as a whole, the evidence is sufficient to authorize a jury to find Thomas guilty as a party to the crimes beyond a reasonable doubt and to the exclusion of every reasonable hypothesis save that of guilt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Trice v. State, 266 Ga. 102, 103(1), 464 S.E.2d 205 (1995); Jenkins v. State, 201 Ga.App. 395, 396-397(1), 411 S.E.2d 122 (1991).

2. Thomas urges that the prosecutor engaged in misconduct because, before the trial started, he had reason to believe that two other people were actually the shooters. It is immaterial whether Thomas was the actual shooter if he was, in fact, a party to the shootings. As discussed in Division 1, the evidence of Thomas' guilt as a party to the crimes was sufficient. There is no showing that any of the evidence used to establish Thomas' guilt was perjured. See Johnson v. State, 258 Ga. 506, 508(4), 371 S.E.2d 396 (1988).

3. Thomas contends that the prosecutor also engaged in misconduct because, during his opening statement, he referred to the 9-millimeter pistol as stolen but subsequently presented no evidence in that regard. Thomas neither objected at trial nor sought a curative instruction. Poteat v. State, 251 Ga. 87, 91(6), 303 S.E.2d 452 (1983); Smith v. State, 221 Ga.App. 428(3), 472 S.E.2d 4 (1996). Instead, it was Thomas himself who elicited testimony that he initially was charged with theft by receiving stolen property based on his possession of the pistol, but that the indictment subsequently was dismissed.

Thomas further urges that, although the prosecutor said that someone would testify as to whether the District Attorney's office intended to charge Thomas with kidnapping, no one so testified. The record shows that the prosecutor did not state what he expected the testimony to prove and, furthermore, that the prosecutor did present evidence that Franklin claimed that he had been kidnapped. Thus, we find no error.

4. Thomas argues that the prosecutor made numerous unfair and improper remarks. The prosecutor's references in opening statement and closing argument to Thomas and his co-defendant as "partners in crime," and "gangsters," who committed a cowardly, despicable act, were reasonable inferences from the evidence. Simmons v. State, 266 Ga. 223, 228(6)(b), 466 S.E.2d 205 (1996); Pinion v. State, 225 Ga. 36, 38(5), 165 S.E.2d 708 (1969). Likewise, the prosecutor's attempts to discredit certain contentions of defense counsel do not justify the grant of a new trial. Port Royal & Western Carolina R. Co. v. Davis, 95 Ga. 292, 301(5), 22 S.E. 833 (1895). Compare Estep v. State, 129 Ga.App. 909, 915-916(8), 201 S.E.2d 809 (1973).

5. Thomas enumerates as error the trial court's admission of evidence that he had been shot earlier on the night in question. Thomas urges that this was evidence of a similar transaction or prior difficulty which the trial court should not have admitted without the requisite notice and hearing. Evidence that an accused is the victim, rather than the perpetrator, of a previous assault cannot raise an inference that he or she "is more likely to have committed the crime for which he is on trial." Barrett v. State, 263 Ga. 533, 534(2), 436 S.E.2d 480 (1993). Thus, evidence that Thomas had been shot is clearly not traditional evidence of similar transactions or prior difficulties which would require notice and a hearing prior to its admission. Furthermore, the evidence that Thomas had been the victim of a shooting was relevant to his motive for the crimes charged and was, therefore, admissible. Fargason v. State, 266 Ga. 463, 465(3), 467 S.E.2d 551 (1996); Hull v. State, 265 Ga. 757, 760(5), 462 S.E.2d 596 (1995).

6. Thomas contends that the denial of his motion for severance and the admission of Owens' statement were erroneous under Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). " ' "For the admission of a co-defendant's statements to constitute a Bruton violation ... the statements standing alone must clearly inculpate the defendant. (Cits.)" [Cit.]' [Cit.]" (Emphasis in original.) Owen v. State, 266 Ga. 312, 314(4), 467 S.E.2d 325 (1996). The relevant portion of Owens' statement is that, at the time of the arrest for the unrelated kidnapping of Franklin, Thomas had a 9-millimeter gun that he had bought, but which he had not fired, as far as Owens knew. Owens' statement that he thought Thomas had bought, but had not fired the gun, standing alone, did not clearly inculpate Thomas, and there is no Bruton error. See Wilkins v. State, 266 Ga. 278, 279(2)(a), 466 S.E.2d 592 (1996); Bailey v. State, 203 Ga.App. 133, 137(3), 416 S.E.2d 151 (1992).

7. Thomas contends that the trial court erred by failing to grant a mistrial or give curative instructions when the prosecutor called Franklin as a witness, knowing that Franklin would invoke the Fifth Amendment. The record shows that Franklin asserted his right to remain silent on one question only and later changed his mind. There is no showing that the prosecutor knew that Franklin would invoke the Fifth Amendment, and defense counsel argued only that the prosecutor should have known that Franklin would do so. Defense counsel undertook a thorough cross-examination. Under these circumstances, we find no reversible error. Parrott v. State, 206 Ga.App. 829, 832-833(2), 427 S.E.2d 276 (1992); Bowen v. State, 194 Ga.App. 80, 81(2), 389 S.E.2d 516 (1989). See also Bolar v. State, 216 Ga.App. 195, 196(2), 453 S.E.2d 790 (1995). Compare Lawrence v. State, 257 Ga. 423, 424(3), 360 S.E.2d 716 (1987).

8. Thomas enumerates as error the trial court's admission of the statement he made following his arrest for kidnapping. Thomas' contention that his statement was inadmissible because of the State's non-compliance with former OCGA § 17-7-210 was not raised in the trial court and will not, therefore, be considered on appeal. Huguley v. State, 253 Ga. 709, 710(2), 324 S.E.2d 729 (1985). With regard to the objection that Thomas did raise below, the mere fact that there was no written waiver of Miranda rights or other written record of such waiver did not render his statement inadmissible. Mitchell v. State, 254 Ga. 353, 355(7)(a), 329 S.E.2d 481 (1985); Barrs v. State, 202 Ga.App. 520, 521(3), 414 S.E.2d 733 (1992). Accordingly, we find no error.

9. Franklin's testimony concerning the circumstances of Thomas' arrest for kidnapping was admissible, " 'even though it may incidentally show the commission of another crime. (Cits.)' [Cits.]" Moulder v. State, 207 Ga.App. 335, 337(6), 427 S.E.2d 793 (1993). See also Smith v. State, 265 Ga. 706, 707, 462 S.E.2d 369 (1995); Preston v. State, 257 Ga. 42, 45(7), 354 S.E.2d 135 (1987). Although Franklin may have falsely claimed that he was a kidnap victim, the record shows that the prosecutor elicited testimony regarding the alleged falsity of Franklin's claim and that defense counsel was allowed to cross-examine the police officer. There was no showing that the pre-trial unavailability of the information regarding the alleged falsity...