Vasser v. State

• Decision Date: 30 April 2001
• Docket Number: No. S01A0433.,S01A0433.
• Citation: 273 Ga. 747,545 S.E.2d 906
• Parties: VASSER v. The STATE.
• Court: Georgia Supreme Court

545 S.E.2d 906

273 Ga. 747

VASSER v. The STATE.

No. S01A0433.

Supreme Court of Georgia.

April 30, 2001.

Holley & Holley, William P. Holley III, Marietta, for appellant.

Garry T. Moss, Dist. Atty., C. David Gafnea, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Madonna M. Heinemeyer, Asst. Atty. Gen., for appellee. HUNSTEIN, Justice.

Barry Euel Vasser was found guilty of felony murder and arson in the death of Johnny Baker. He appeals from the denial of his motion for a new trial.¹ Finding no error in the enumerations raised, we affirm.

1. The jury was authorized to find that the victim, Johnny Baker, died when the pilot light of a water heater ignited gasoline which Baker was dispersing in appellant's home in order to burn down the premises. Baker's cousin, Tony Hale, testified that appellant solicited him to burn the home when appellant was no longer able to make the mortgage payments on it. Other witnesses testified that appellant had made statements regarding the mortgage company and insurer of the property that he would rather see his house burn than see "them" get it. Appellant told Hale where gasoline was located on the property and that Hale could have anything in the house in return for burning it. Appellant removed numerous items and stored them at a brother-in-law's house before the fire and began burning items outside in order to misdirect the concern any neighbors might have upon smelling smoke. On the day of the crimes, the victim and Hale first trashed the house to make it look like a burglary then left to get a truck, intending to remove some furniture. After their return, they decided not to move anything and both men started pouring gasoline. Hale saw the gasoline around the victim explode and tried to get to the burning man, but could not. Appellant, who learned of the death after responding to a page sent by Hale's wife (appellant's sister), gave instructions that Ms. Hale should not say anything. In the subsequent investigation into the death, appellant stipulated to the admissibility of polygraph test results which indicated that appellant was not truthful when responding to questions such as "did you ask anyone to burn your house."

We find that the evidence adduced was sufficient to enable a rational trier of fact to find appellant guilty of the charged crimes beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Contrary to appellant's contention, there was circumstantial evidence (in the form of appellant's statement he would rather see his house burn than see the mortgage and insurance companies get it and the steps he took to hide his involvement in the fire) that was sufficient to establish that the arson was without the consent of the mortgage and insurance companies so as to support the arson conviction. See generally Savage v. State, 229 Ga.App. 560, 494 S.E.2d 359 (1997).

Appellant contends the evidence was insufficient to sustain the verdict because the only evidence establishing his guilt is Hale's testimony and a defendant cannot be convicted on the uncorroborated testimony of an accomplice. However, "[w]hether the corroborating evidence is sufficient is a matter for the jury, and even slight evidence of corroboration connecting an accused to a crime is legally sufficient. [Cits.]" Klinect v. State, 269 Ga. 570, 572(1), 501 S.E.2d 810 (1998). Hale's testimony was corroborated, inter alia, by the polygraph test results, see Smith v. State, 245 Ga. 205(2), 264 S.E.2d 15 (1980) and by appellant's behavior before and after the crime, such as his actions in moving belongings prior to the fire and his statements that the mortgage and insurance companies would never get his house. See Klinect, supra, 269 Ga. at 572(1), 501 S.E.2d 810.

Finally, appellant argues that he could not be convicted of felony murder because the felony murder statute requires that the death be caused directly by one of the parties to the underlying felony, citing State v. Crane, 247 Ga. 779, 279 S.E.2d 695 (1981), and because appellant had no knowledge of the victim's involvement in the crime, he could not be deemed to have caused the death directly. We find State v. Crane distinguishable on its facts, however, and agree with the State that appellant's argument is controlled adversely to him by our holding in Scott v. State, 252 Ga. 251, 313 S.E.2d 87 (1984), in which this Court recognized that a defendant may be convicted of felony murder where the victim was acting in concert with a codefendant in committing a crime when his death occurred. Accordingly, we find no merit in appellant's enumeration that the trial court erred by denying his general and special demurrer to quash the indictment, which was based upon the same misapplication of State v. Crane, supra.

2. Pretermitting whether appellant's arguments are procedurally defaulted, we find no error in the admission of testimony by the GBI agent who conducted appellant's polygraph test or the trial court's charge regarding such testing. The record reveals that the GBI agent was properly qualified as an expert and contrary to appellant's contention, the agent was properly allowed to give his opinion interpreting the results of his test. See State v. Chambers, 240 Ga. 76, 239 S.E.2d 324 (1977) (polygraph examiner's testimony that defendant was lying in denying the crime admissible); Smith v. State, supra, 245 Ga. at 205(2), 264 S.E.2d 15 (polygraph examiner's testimony that defendant lied admissible). The record reveals that the trial court did not give specific language from appellant's requested charge on the polygraph evidence (taken from the pattern charge) after counsel withdrew the one-sentence portion of the charge appellant now challenges on appeal. Despite this procedural default, we find no error in the exclusion of the language since a review of the charge given by the trial court reveals that it substantially covered the essence of the requested language in a manner favorable to appellant. See generally Crawford v. State, 236 Ga. 491, 493, 224 S.E.2d 365 (1976).

3. Appellant contends he received ineffective assistance of counsel. In order for appellant to prevail on this claim, he must carry his burden of showing both that counsel's performance was deficient and that the deficient performance was prejudicial to his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. Francis, 253 Ga. 782, 783, 325 S.E.2d 362 (1985); Brown v. State, 257 Ga. 277(2), 357 S.E.2d 590 (1987).

(a) Regarding the polygraph evidence, counsel's performance was not deficient for failing to object to the GBI agent's testimony. Division 2, supra. The record reveals the agent's expertise was clearly established so there was no prejudice resulting from counsel's alleged failure to research the agent's credentials or impeach his expertise. Appellant failed to make the required showing that he was harmed by counsel's failure to obtain an independent polygraph test, by counsel's failure to adduce evidence of the unreliability of such tests in light of counsel's thorough cross-examination of the GBI agent on this topic, or by counsel's failure to obtain a copy of the polygraph chart when counsel was present during the test and knew the results.

(b) In light of our holding in Division 1 that the evidence adduced at trial satisfies the requirements of Jackson v. Virginia, counsel's failure to move for a directed verdict presents an insufficient ground as a matter of law for claiming ineffective assistance of counsel. See Wright v. State, 211 Ga.App. 474(5), 440 S.E.2d 27 (1993). Given the presence of evidence corroborating Hale's testimony, we find meritless appellant's contention that counsel was ineffective for failing to challenge the absence of corroborative...