Young v. State

• Decision Date: 23 January 2012
• Docket Number: No. S11A1679.,S11A1679.
• Parties: YOUNG v. The STATE.
• Court: Georgia Supreme Court

12 FCDR 205

290 Ga. 392

721 S.E.2d 855

YOUNG

v.The STATE.

No. S11A1679.

Supreme Court of Georgia.

Jan. 23, 2012.

Wayne L. Burnaine, Jeffrey R. Sliz, Lawrenceville, for appellant.

J. Bradley Smith, District Attorney, Samuel S. Olens, Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Jason Charles Fisher, Assistant Attorney General, Samuel E. Skelton, for appellee.

CARLEY, Presiding Justice.

After a jury trial, Appellant Torrell McGarrett Young was found guilty of malice murder, two counts of felony murder, two counts of burglary, armed robbery, two counts of attempted armed robbery, three counts of aggravated assault, three counts of tampering with evidence, and conspiracy to distribute cocaine. The felony murder verdicts were vacated by operation of law. The trial court entered judgments of conviction and sentenced Appellant to life imprisonment for malice murder, two consecutive 20–year terms for burglary, a consecutive life sentence for armed robbery, two concurrent 10–year terms for attempted armed robbery to be served consecutively to all other terms, and three concurrent 10–year terms for tampering with evidence. The trial court merged all other offenses into those convictions for sentencing purposes. After the filing of a motion for new trial, the trial court entered an order granting the motion with respect to one of the tampering with evidence convictions and the conspiracy to distribute cocaine count, but denying the remainder of the motion. Appellant appeals from that order.^*

1. Construed most strongly in support of the verdicts, the evidence shows that on September 27, 2004, Appellant Torrell M. Young met with Roderick Cooper, Donnie Murphy, Carla Simmons, Ashley Davis, and Jodi McWalters at the Bulldog Inn in Athens, Georgia. The group conspired to rob the victim, Paul Rucker, because Appellant had observed a large amount of money in the victim's wallet the previous day. The next day, Appellant, Cooper, Murphy, and Ms. Simmons proceeded to the victim's residence in Commerce, Banks County. Ms. Simmons entered the residence, offered the victim sex in exchange for money, and led the victim to his bedroom. Appellant and Murphy then entered the residence as planned, and found the couple in the bedroom. Ms. Simmons subsequently exited the house and went back to the waiting car.

Once inside, Murphy hit the victim in the head with a liquor bottle while Appellant kicked the victim and beat him with a telephone. Both men also proceeded to search the residence for money. After a short while, Ms. Simmons urged Cooper, who had been waiting in the car, to enter the residence to check on Appellant and Murphy. Cooper, armed with a handgun, entered the house, and, upon finding the others, pointed the gun at the victim and demanded money. Appellant then took Cooper's gun and held it to the victim's head demanding money. After no money was discovered, Appellant told Murphy to make sure that the victim was physically incapacitated so that he could not get to a phone. Appellant and Cooper then exited the residence with a computer that they found in the living room on the way out. While alone in the residence with the victim, Murphy strangled the victim to death with his hands. Murphy emerged from the house covered in the victim's bodily fluids and carrying the wine bottle that he used to strike the victim, which he discarded minutes later out the window of the car. The group drove to a nearby gas station whereupon they cleaned the computer and Murphy cleaned himself. Appellant later sold the computer, and the group used the proceeds to buy drugs.

After not being able to reach the victim on the day of the murder and when no one answered the knock on the door the following day, the victim's brother entered the residence and found the victim deceased on the floor of the bedroom. At trial, the medical examiner testified that the cause of the victim's death was blunt force trauma to the head complicated by asphyxia by manual strangulation. The evidence was sufficient to authorize a rational trier of fact to find Appellant 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. Appellant contends that the trial court erred by excusing several potential jurors because, according to Appellant, there is no evidence that these jurors filed a request to be excused or an affidavit as required by OCGA § 15–12–1.1. He further argues that the jurors were excused indiscriminately in violation of this Court's holding in Yates v. State, 274 Ga. 312, 314–316(2), 553 S.E.2d 563 (2001).

Pursuant to OCGA § 15–12–1.1(a), a trial court may excuse a potential juror if he or she is engaged “in work necessary to the public health, safety, or good order,” is a full-time student, is the primary caregiver of a child six years of age or younger, is a “primary teacher in a home study program,” or shows other good cause. However, “whether to excuse a juror for hardship lies within the trial court's discretion.” Gulley v. State, 271 Ga. 337, 344(7), 519 S.E.2d 655 (1999). Moreover, a trial court's discretion to excuse jurors exists independent of and in addition to its statutory duty to excuse jurors. Sealey v. State, 277 Ga. 617, 620(8), 593 S.E.2d 335 (2004).

Contrary to Appellant's assertion, the trial court did not issue a blanket, indiscriminate excusal of all jurors who raised a hardship. Besides the fact that some jurors were denied a hardship request, the record shows that the trial court complied with the Banks County Superior Court's standing order regarding juror excusals. The court issued two separate orders listing every juror who was excused as well as the reason for the excusal. In the second order, the trial court thoroughly explained the procedure that was followed with regard to excusing potential jurors:

First, no juror was excused or deferred unless that juror made inquiry to the clerk's office requesting to be excused. After the juror requested to be excused, the clerk informed the [trial court] of the reason for the request, and the [trial court] made a decision to excuse the juror based on that information, to contact the juror personally and inquire of him or her as to the request, or to deny the request.

At a pre-trial hearing, the trial court went through the list of all jurors who were excused and gave reasons for his actions. See English v. State, 290 Ga.App. 378, 383(3)(b), 659 S.E.2d 783 (2008). Additionally, “[t]here is absolutely no evidence that the excusals or deferrals in this case were allowed in such a manner as to alter, deliberately or inadvertently, the representative nature of the jury lists. [Cit.]” English v. State, supra. Finally, “[t]he jury panels which were put upon the accused contained [101] veniremen, substantially more than required by OCGA § 15–12–160.” Hall v. State, 254 Ga. 272(3), 328 S.E.2d 719 (1985).

In Yates v. State, supra, this Court reversed a conviction due to an improper excusal of potential jurors. However, the present case is distinguishable. The Yates court emphasized that the discretion to excuse jurors lies with the trial court. However, in that case, the county clerk, without any written guidelines and without any input by the trial court, granted the excusals. In the present case, the trial court, not the clerk, granted all the excusals and also followed specific written guidelines provided by the judicial circuit. The Yates court also pointed out that the clerk made no inquiry into the nature of most of the excuses and appeared to have granted every request. In contrast, the trial court in the present case personally telephoned those jurors who he believed required a deeper inquiry into their hardship request, and not all jurors were granted a deferral. Finally, the excusals of potential jurors in Yates were in violation of a previous order in that case issued by the trial court requiring the defense to be present when any juror was excused, and the defense was not given any notice of any excusals until the first day of voir dire. In the present case, the trial court issued an order informing Appellant that he would be granting excusals to potential jurors without counsel present, and also provided Appellant with updates of the jurors excused and the reasons therefore. Hence, Yates v. State does not demand a reversal in this case.

Although the record does not contain an affidavit for every excused juror, after a thorough review of the trial court's procedure, “we do not find ‘such disregard of the essential and substantial provisions of the statute as would vitiate the array( ).’ [Cit.]” Bryant v. State, 288 Ga. 876, 882(6), 708 S.E.2d 362 (2011). See also Hendrick v. State, 257 Ga. 17, 18(2), 354 S.E.2d 433 (1987); Franklin v. State, 245 Ga. 141, 147(1)(e), 263 S.E.2d 666 (1980), overruled on other grounds, Nash v. State, 271 Ga. 281, 519 S.E.2d 893 (1999).

3. Appellant contends that the convictions for eight of the alleged offenses were improper because the trial court effectively lowered the State's burden of proof by allowing the prosecutor to argue that he was guilty of these offenses as a party to the crime even though the indictment alleged that he was the actual perpetrator of these offenses. However,

OCGA § 16–2–21 does not require that one who is a party to the crime be indicted as a party; rather, it provides that one who is a party to the crime may be indicted, convicted and punished for that crime upon proof that he was a party to the crime.

Brinson v. State, 261 Ga. 884(1), 413 S.E.2d 443 (1992). See also

Byrum v. State, 282 Ga. 608, 609–610(2), 652 S.E.2d 557 (2007). In the present case, the jury was satisfied beyond a reasonable doubt that these eight offenses were committed and that Appellant was a party to their commission. That is all that is required under Georgia law, and, therefore, the convictions were proper.

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