Whitaker v. State
| Decision Date | 19 May 2008 |
| Docket Number | No. S08A0445.,S08A0445. |
| Citation | 283 Ga. 521,661 S.E.2d 557 |
| Parties | WHITAKER v. The STATE. |
| Court | Georgia Supreme Court |
Hecht, Mack & Harris, PC, Robert Lee Mack, Jr., Stockbridge, for appellant.
Thurbert E. Baker, Attorney General, Christopher Robert Johnson, Assistant Attorney General, Jewel Charmain Scott, District Attorney, for appellee.
A jury found Julius Whitaker, Jr., guilty of felony murder while in the commission of aggravated assault, aggravated assault with the intent to murder, aggravated assault with a deadly weapon, theft by taking a motor vehicle, and possession of a weapon during the commission of a crime in connection with the fatal stabbing of Larry Copeland. Whitaker appeals his convictions, challenging the denial of his motion in limine, the allowance of certain testimony at trial, and portions of the charge to the jury. Finding the challenges to be without merit, we affirm.1
The evidence construed in favor of the verdicts showed that around noon on February 10, 2006, Copeland's neighbor, Cumley, telephoned him to confirm her earlier request to get a ride to a store that day. Copeland sounded "very agitated," and although he frequently gave Cumley rides for payment, he declined to do so. Shortly before 1:00 p.m., Cumley noticed that Copeland's 1996 Chevrolet Caprice was missing from his driveway. Over the next few hours, Cumley made several failed attempts to reach Copeland on the telephone.
Around 10:00 p.m. that night, the Forest Park Police Department received a "person-down" call and information that there was a "very erratic person" on the telephone with the 911 operator. When police arrived at the scene, they encountered Copeland's roommate, who was "screaming" and "yelling" that Copeland was "bleeding all over the place" and that he was dead. An officer entered the home and found Copeland's body surrounded by blood; it was obvious to the officer that Copeland had been dead "for a while." The condition of the body along with the timing of Copeland's telephone conversation were consistent with noon as the time of death.
Copeland died from a massive hemorrhage caused by a stab wound that punctured his aorta and caused over a quart of blood to fill his chest cavity. Copeland also had slash wounds across his throat. The wounds were caused by a single-edged knife which could have measured as much as five inches in length.
Copeland's home showed signs of a struggle. In Copeland's bedroom, police found a scrap of paper bearing a telephone number that they traced to the home of Whitaker's father, where Whitaker sometimes stayed.
Following the issuance of a bulletin for Copeland's missing car, the next morning it was spotted in Cartersville by police. When the police car's flashing lights were turned on, the Caprice took off. Due to traffic conditions, the deputy was forced to end the chase. A short time after, however, the deputy learned that the car had been abandoned after it ran into an embankment, and a "large" African-American man was spotted fleeing from the vehicle. Authorities recovered a soda can from the vehicle containing Whitaker's DNA and fingerprint. Whitaker's then girlfriend lived in Cartersville. Whitaker turned himself in to authorities the Monday following the murder, and admitted to having Copeland's car in Cartersville, although he told varying stories about the length of time he had the vehicle.
While in jail, Whitaker told an inmate that he beat Copeland after becoming angry that Copeland reneged on his promise to allow Whitaker to borrow his car in exchange for oral sex. Whitaker admitted to killing "the gay guy," as he referred to Copeland, but claimed that he had not meant to do so. Whitaker asked the inmate to assist in court with Whitaker's "alibi" by testifying that Copeland continually harassed him about having sex.
1. The evidence was sufficient to enable a rational trier of fact to find Whitaker guilty beyond a reasonable doubt 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. Whitaker contends that the trial court erred in denying his motion in limine which sought to prevent the State, for the purpose of impeachment, from questioning him, if he testified at trial,2 regarding his prior convictions for burglary, statutory rape, and failure to register as a sex offender. He argues that Adams v. State, 284 Ga.App. 534, 644 S.E.2d 426 (2007), is controlling, and would have prevented the State from using his prior convictions, even though felonies, unless they were crimes involving dishonesty. But, the argument is unavailing.
As stated in Adams, "OCGA § 24-9-84.1 was enacted in 2005 to establish guidelines for the use of criminal convictions to impeach witnesses or defendants who testify." However, at issue in Adams was whether the trial court correctly allowed the State to attempt to impeach Adams's credibility with a misdemeanor conviction for theft by receiving stolen property. Accordingly, the portion of OCGA § 24-9-84.1 applicable in that case was paragraph (a)(3), which provides that,
[e]vidence that any witness or the defendant has been convicted of a crime shall be admitted if it involved dishonesty or making a false statement, regardless of the punishment that could be imposed for such offense.
However, in this case, unlike Adams, the issue is impeachment with prior felonies, and thus, the matter is subject to the provisions of paragraph (a)(2), which states,
[e]vidence that the defendant has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the defendant was convicted if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant; ...
The State expressly sought to impeach Whitaker under OCGA § 24-9-84.1(a)(2), and the trial court correctly recognized its applicability to Whitaker's situation. It was not error to deny Whitaker's motion in limine on the basis urged.
3. Whitaker contends that the trial court erred when it allowed the State to introduce testimony that Whitaker invoked his right to remain silent during police questioning, and when it denied Whitaker's motion for mistrial based upon such testimony.
The detective testified that Whitaker was read his Miranda3 rights, signed a waiver of those rights, and that he answered questions about his connection to Copeland's car; however, when he was further questioned about his relationship with Copeland and what had transpired, Whitaker invoked his Miranda rights.4 Whitaker's trial counsel moved for a mistrial which was denied; the trial court concluded that under these circumstances in which the defendant had started giving a statement and then just stopped, the officer could explain why the interview with Whitaker was terminated. The trial court then gave a curative instruction to the jury, as requested by Whitaker.5 The motion for mistrial was renewed, but not granted.
Certainly, the fact that a defendant has exercised the right to remain silent is not to be used against the defendant at trial. Taylor v. State, 272 Ga. 559, 561(2)(d), 532 S.E.2d 395 (2000). However,
[a]n improper comment on the defendant's silence does not necessarily require a reversal. The grant or denial of a mistrial is within the trial court's sound discretion, and [the appellate court] will not interfere with the trial court's exercise of that discretion unless it is clear that a mistrial was essential to preserve the right to a fair trial.
Parks v. State, 281 Ga.App. 679, 681(2), 637 S.E.2d 46 (2006). Furthermore, testimony about the defendant remaining silent is not deemed to be prejudicial if it is made "during a narrative on the part of the authorities of a course of events" and "apparently was not intended to, nor did it have the effect of, being probative on the guilt or innocence of the defendant." Taylor v. State, supra at 561(2)(d), 532 S.E.2d 395. Indeed, to warrant a reversal of a defendant's conviction, the evidence of the election to remain silent must "point directly at the substance of the defendant's defense or otherwise substantially prejudice the defendant in the eyes of the jury." Id.
Here, the detective's comment was not directed to any particular statement or defense offered by Whitaker, and the comment on his invoking Miranda was made during the detective's explanation of the course of events. Nor is there any indication that the comment was intended to, or did, have the effect of being probative on the issue of guilt or innocence. Moreover, the trial court promptly gave a curative instruction to the jury. Under these circumstances, it was not an abuse of the trial court's discretion to refuse to grant a mistrial. Parks v. State, supra at 681(2), 637 S.E.2d 46.
4. Whitaker next contends that the trial court erred in its charge to the jury on both counts of aggravated assault. He concedes that the instructions given were "correct statements of the law pertaining to [a]ggravated [a]ssault"; however, he maintains that the trial court failed to instruct "on all of the essential elements." But, the contention is without merit.
As to aggravated assault with intent to murder, he complains that the trial court failed to instruct the jury about the "[i]ntent to take life." However, that is far from the case. In determining whether there is error, jury instructions must be read and considered as a whole. White v. State, 281 Ga. 276, 280(4), 637 S.E.2d 645 (2006). The trial court instructed the jury about the charge as alleged in Count (1) of the indictment, and that it would be committed when the "person assaults another person with the intent to murder." The trial court gave further instruction about the definition of murder in the context of malice murder, in that the person unlawfully and with malice "causes the death of another human being."...
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