Thorpe v. State
| Decision Date | 29 June 2009 |
| Docket Number | No. S09A0242.,S09A0242. |
| Citation | 285 Ga. 604,678 S.E.2d 913 |
| Parties | THORPE v. The STATE. |
| Court | Georgia Supreme Court |
Emory B. Bazemore, Tybee Island, for Appellant.
Spencer Lawton, Jr., Dist. Atty., Christine S. Barker, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., David A. Zisook, Asst. Atty. Gen., for Appellee.
Appellant Michael Thorpe was convicted and sentenced to life plus forty consecutive years in prison for murder and related charges arising from a botched attempted robbery in downtown Savannah. Thorpe challenges his convictions and sentences on multiple grounds; finding no error, we affirm.1
Viewed in the light most favorable to the verdict, the evidence adduced at trial reflected that, in the early morning hours of December 24, 2005, appellant, co-defendant Wilson, and appellant's uncle, Sean Thorpe, were riding around downtown Savannah in a grey Ford Taurus driven by co-defendant Huckabee. Earlier that evening, appellant and his three companions had been telling friends gathered at a friend's apartment that they needed to "get a lick," which meant commit a robbery, because they needed some Christmas money. After losing sight of their first robbery target, the foursome spotted victims Ross and Finley walking down the street with two friends, Elizabeth Sprague and Brannen Miles, slightly behind them. Appellant and Wilson, both armed with guns, exited the car with Sean Thorpe, while Huckabee waited in the car. Appellant and Wilson hid as the victims approached; Sean Thorpe went behind a nearby tree.
As the victims walked by, appellant and Wilson jumped out and hit Finley on the head with his weapon, whereupon the gun discharged. A round from a different gun was fired and struck Ross. Sean Thorpe fled the scene on foot upon hearing the gunshots; appellant, Wilson, and Huckabee fled in the Taurus and picked up Sean Thorpe shortly thereafter. Finley survived the attack. Ross, however, died of her gunshot wound a few days later. Expert testimony established that two bullet casings recovered from the crime scene had markings consistent with being fired from weapons in the possession of appellant and Wilson on the night of the crime.
At trial, Finley identified Wilson as his attacker. Sprague, who had witnessed the attack, also identified Wilson as the one who had hit Finley with his gun. Miles, though unable to positively identify any of the perpetrators, testified that as he was fleeing he saw one of the attackers get into a grey Ford Taurus. Finley and Miles both testified that there were three people involved in the attack.
These events were also related by Sean Thorpe, who testified for the State and also authenticated a secretly recorded telephone conversation between him and appellant, in which appellant confirmed that he shot the murder victim. Other witnesses testified as to various statements made by appellant acknowledging that the robbery had gone awry because the murder victim "bucked" when they had tried to get her purse. In addition, Thorpe testified as to the foursome's agreement to conceal their roles in and knowledge of the crime and described how, after Ross' death became public, he helped appellant and Wilson dispose of appellant's gun in a river.
Trial testimony also established that the gray Ford Taurus driven by Huckabee on the night of the crime had been stolen, at the request of appellant and Huckabee, by a friend of the three co-defendants from a car dealership at which he worked.2
1. The evidence as described above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. The trial court did not abuse its discretion by excepting the State's lead detective, Don McCutcheon, from the rule of sequestration where the prosecutors maintained that they needed Detective McCutcheon on hand to assist with the orderly presentation of the State's case due to the large number of prosecution witnesses and exhibits. Warner v. State, 281 Ga. 763(2), 642 S.E.2d 821 (2007). The decision to grant an exception to the rule of sequestration will not be disturbed absent manifest abuse of discretion. Lewis v. State, 283 Ga. 191(4), 657 S.E.2d 854 (2008).
3. Appellant asserts error with respect to the trial court's rulings regarding six members of the jury venire. Specifically, appellant contends that the trial court erred in denying defense motions to strike for cause Jurors Merritt, Hansen, Cuillo, and Evans, and for granting the State's motions to strike for cause Jurors Henderson and Jones.
Whether to strike a juror for cause lies within the sound discretion of the trial court. [Cit.] Before a juror is excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court's charge upon the evidence. [Cits.]
Somchith v. State, 272 Ga. 261, 262(2), 527 S.E.2d 546 (2000). Whether or not a prospective juror is qualified must be determined based on a consideration of the voir dire as a whole. Greene v. State, 268 Ga. 47, 49, 485 S.E.2d 741 (1997).
An appellate court should not substitute its own finding for that of the trial court, since it must pay deference to the trial court's determination. [Cits.] This deference encompasses the trial court's resolution of any equivocations and conflicts in the prospective jurors' responses on voir dire. [Cits.]
(a) Defense counsel moved to strike Juror Merritt for cause because of a voir dire response to the effect that she would not be able to decide the question of the defendants' guilt based on the evidence presented in court rather than what she may have heard about the crime, as well as her statements that "I'm kind of not being impartial" and "I sound like I have really set my—I already have my mind set." However, immediately following the last quoted comment, on questioning by defense counsel as to whether she did in fact have her mind set already, she responded, "Actually, I don't, because I don't know these gentlemen." She also testified that, while she had heard about the crime, she had heard nothing about evidence connecting the defendants to the crime. At the end of her questioning, she stated that it was the evidence that would determine whether or not the defendants were guilty. The trial court did not abuse its discretion in determining that Juror Merritt was capable of setting aside her opinion and deciding the case based on the evidence. See Somchith, supra, 272 Ga. at 262(2), 527 S.E.2d 546.
(b) Defense counsel moved to strike Juror Hansen for cause because he replied affirmatively when asked whether he felt "that the State has satisfied any burden at this point because these three men are here today" and whether he was "looking for these defendants to explain something to him about why they're here." However, Juror Hansen also responded affirmatively when asked whether he understood that it was the State that bears the burden of proving guilt beyond a reasonable doubt. He also stated repeatedly that he could decide the case based on the evidence and that he had formed no opinion as to these particular defendants' guilt or innocence. Though Juror Hansen's responses were admittedly equivocal regarding the burden of proof, we cannot find that the trial court abused its discretion in finding Juror Hansen qualified. See Greene, supra, 268 Ga. at 50-54, 485 S.E.2d 741 ().
(c) Defense counsel moved to strike Juror Cuillo for cause based on her statement that she believed the defendants were guilty because "that's what I've read in the papers and heard on the news" and because she answered affirmatively when asked whether she would expect the defendants to put up some type of defense to prove that they were not guilty. However, Juror Cuillo qualified her response by noting that she had not seen any of the evidence and also testified that she understood the defendants were presumed innocent. Her responses, in fact, demonstrated the seriousness with which she regarded her potential responsibilities as a juror and underscored her willingness to set her opinion aside and decide the case based on the evidence and the court's instructions. Under these circumstances, the trial court did not err by refusing to strike Juror Cuillo for cause. See Robertson v. State, 268 Ga. 772(6), 493 S.E.2d 697 (1997) ().
(d) Defense counsel moved to strike Juror Evans for cause because she answered affirmatively when asked whether, if the defendants did not present any evidence, she would take that into consideration in her deliberations, and whether she would "like to hear from" the defendants at trial. However, after additional questioning from counsel, Juror Evans, who was clearly unfamiliar with the legal system, demonstrated that she was fully prepared to follow the court's instructions regarding the burden of proof. Accordingly, the trial court did not abuse its discretion by refusing to strike Juror Evans. See Greene, supra, 268 Ga. at 54, 485 S.E.2d 741.
(e) On the State's motion and over defense objections, the trial court struck Juror Henderson for cause. During voir dire, Juror Henderson repeatedly expressed his view that the system would probably not be fair to the defendants and, when pressed further on this point, responded, "[d]on't worry about it." Following the trial court's admonition about the importance of responding fully to the questions posed, Juror Henderson continued to express skepticism about whether the defendants would get a fair trial. While Juror Henderson did state that he thought he could be fair and...
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