Whitaker v. State

• Decision Date: 18 May 1998
• Docket Number: No. S98A0434., No. S98A0431
• Citation: 499 S.E.2d 888,269 Ga. 462
• Parties: WHITAKER v. The STATE. SPEAR et al. v. The STATE.
• Court: Georgia Supreme Court

499 S.E.2d 888

269 Ga. 462

WHITAKER v. The STATE.

SPEAR et al. v. The STATE.

Nos. S98A0431, S98A0434.

Supreme Court of Georgia.

May 18, 1998.

Elizabeth G. Rankin, Atlanta, for Devagas Whitaker.

Tony L. Axam, Atlanta, for Aaron Kenneth Spear et al.

Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Cari K. Johanson, Asst. Dist. Attys., Allison Beth Goldberg, Asst. Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State. THOMPSON, Justice.

Devagas Whitaker, Aaron Kenneth Spear, and Gary Bernard Spear, Jr., were jointly indicted, tried, and convicted of malice murder, felony murder predicated on aggravated assault, and aggravated assault in the shooting death of Randolph Barber. Whitaker appeals in Case No. S98A0431; Aaron and Gary Spear jointly appeal in Case No. S98A0434. We affirm in this consolidated opinion.¹

The victim and his friends, Temica Stewart, Quandra Wortham, and Willie Harper, were approached by defendant Gary Spear as they were walking to a nightclub in the early hours of the morning. Wortham, who was familiar with Gary Spear, thought he was joking when he put a gun to her chest. When she pushed the gun aside, Gary Spear then approached the victim, who cautioned him to "stop playing with the guns." Defendant Aaron Spear appeared next, also armed with a gun. He was followed by defendant Whitaker, who was carrying a pump shotgun. The defendants shoved the victim. He backed away with his arms raised, and despite his offer to "take what you want," Whitaker shot him in the chest. As the perpetrators fled, Stewart heard one of them ask, "Did you kill the motherfucker?" She then heard the following responses: "Yeah, I killed the motherfucker," and "you should have killed those bitches too." The victim died as a result of multiple buck shot wounds to the chest.

1. The evidence was sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) to enable a rational trier of fact to find each defendant guilty of the offenses for which they were convicted.

2. The defendants contend that the photographic displays shown to witnesses Stewart and Wortham were unduly suggestive and tainted their subsequent in-court identifications.

[C]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

Simmons v. U.S., 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). See also McCoy v. State, 237 Ga. 62, 226 S.E.2d 594 (1976).

It was established at a pretrial hearing that within 14 hours of the shooting, Stewart and Wortham were separately shown three photographic arrays, each consisting of the photographs of six numbered individuals. The witnesses were instructed to advise the investigating officers if they observed any of the suspects who had participated in the homicide from among those photographs. Stewart testified that she easily identified each of the three defendants from among the photographic arrays based on her observations at the time of the shooting; and that she was not influenced by the officers in making her selections. She independently identified each of the three defendants at the hearing as having participated in the homicide, based on "what happened that night."

Wortham testified that she had no difficulty identifying defendant Gary Spear from among an array of photographs. While she selected photographs of Whitaker and Aaron Spear as "possible" perpetrators, she testified that initially she was not "positive" of these photographic identifications, but then "it just clicked in my mind that ... [Whitaker] was one of them." She, too, testified that she had not been influenced by the officers in making her selections. She also independently identified each of the three defendants at the hearing based on her observations at the time of the shooting.

While Whitaker complains about differences in the character of the photographs, variances in texture, shading or tone will not necessarily render the procedure impermissibly suggestive. See Brewer v. State, 219 Ga.App. 16(6), 463 S.E.2d 906 (1995); Graham v. State, 171 Ga.App. 242(11), 319 S.E.2d 484 (1984). Moreover, both eyewitnesses testified that they were not influenced by any variances in the photographs.

The pretrial photographic procedures, which resulted in the identification of each of the three defendants, were not impermissibly suggestive. We need not inquire further into whether there was a substantial likelihood of misidentification. Messer v. State, 247 Ga. 316(3), 276 S.E.2d 15 (1981).

3. The defendants assert that the court erred in ruling that they had not established a prima facie case of discrimination in the jury selection proceedings based either on race under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), or gender under J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).

It was established that the State exercised nine peremptory strikes—three to eliminate white females, three to eliminate white males, and three to eliminate African-American females. The court compared the percentage of African-American and male members of the venire with the percentage of those groups represented on the jury, and it concluded that the State had not exercised a disproportionate percentage of peremptory strikes based either on race or gender. While the court denied the defendants' challenges based upon the absence of a discriminatory pattern, it invited defense counsel to be heard further concerning any strike it believed to have been exercised in a discriminatory fashion. Defense counsel declined.

The Equal Protection Clause of the U.S. Constitution prohibits discrimination in jury selection on the basis of race or gender, or that the assumption that a venireperson will be biased in a particular case for no reason other than the person's race or gender.... The opponent of the peremptory strike bears the burden of persuading the trial court that the proponent of the strike acted with discriminatory intent in exercising the peremptory challenge.

Turner v. State, 267 Ga. 149, 150(2), 476 S.E.2d 252 (1996). The challenging party makes out a prima facie case of purposeful discrimination by showing that "`the totality of the relevant facts gives rise to an inference of discriminatory purpose.' Batson v. Kentucky, [supra at 476 U.S. at 94, 106 S.Ct. at 1721]." Whatley v. State, 266 Ga. 568, 570(3), 468 S.E.2d 751 (1996). Only if a prima facie case is established, does the burden shift to the proponent of the strike to articulate a race-neutral explanation for the strike. Id.

Although "circumstantial evidence of invidious intent may include proof of disproportionate impact," Batson, supra 476 U.S. at 93, 106 S.Ct. at 1721, we agree with the trial court that the numbers alone did not establish a disproportionate exercise of strikes sufficient to raise a prima facie inference that the strikes were exercised with discriminatory intent under Batson/J.E.B. Since the defendants were unable to articulate additional facts which may give rise to an inference of discriminatory purpose, they failed to carry their burden of establishing a prima facie case under Batson/J.E.B. Accordingly, their motions were properly denied. Compare Slade v. State, 267 Ga. 868(4), 485 S.E.2d 726 (1997) (prima facie case of purposeful discrimination established where State used 100 percent of its peremptory strikes against African-American venirepersons).

Case No. S98A0431

4. Whitaker contends he received ineffective assistance of trial counsel in that counsel failed to move to suppress his custodial statement; failed to object to allegedly inadmissible hearsay testimony; failed to adequately investigate and present certain witnesses at trial; and failed to object to purported violations of the rule of sequestration.

To prevail on his claim of ineffective assistance of counsel, Whitaker has the burden of showing that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Whatley v. State, supra at (4); Smith v. Francis, 253 Ga. 782(1), 325 S.E.2d 362 (1985).

a) Whitaker's counsel testified at the motion for new trial that he made a strategic decision not to object to the admission of Whitaker's custodial statement because the statement was largely consistent with statements made by his co-defendants, and counsel did not view the statement as harmful to the defense.² Moreover, since Whitaker elected not to testify, his custodial statement enabled the jury to hear his theory of the defense—that he was not present at the shooting.

b) One of the investigating officers was asked how Whitaker was identified as a suspect. She responded, without objection, that after Stewart and Wortham had provided descriptions of Whitaker, the officers were able to track him down through the use of his nickname, "D." Even assuming arguendo that this evidence was inadmissible under OCGA § 24-3-2, Whitaker has not shown how he was prejudiced by the lack of an objection. See generally Kendrick v. State, 224 Ga.App. 72(4), 479 S.E.2d 464 (1996).

c) Counsel explained his decision not to call certain witnesses as a matter of trial strategy. After reviewing information from the investigator's interviews, counsel recalled that although certain witnesses may have been able to testify that they had seen Whitaker at the nearby Chevron station just before and after the shooting, these witnesses would not have been able to account for Whitaker's whereabouts at the actual time of the shooting.

d) The first alleged violation of the rule of sequestration occurred during a pretrial...