Opinion
A03A0665, A03A0718, A03A0795.
Decided February 20, 2003
Aggravated assault, etc. Muscogee Superior Court. Before Judge Smith.
Hagler, Hyles Adams, Clark C. Adams, Jr., for appellant (case no. A03A0665).
James D. Lamb, for appellant (case no. A03A0718).
Melvin E. Cooper, for appellant (case no. A03A0795).
J. Gray Conger, District Attorney, Stacey S. Jackson, Assistant District Attorney, for appellee.
A Muscogee County jury found Tirus Parnell, Jamichael Mayes, and Darron Snipes guilty of various felony offenses arising from an armed home invasion perpetrated by the three men and their subsequent flight in a stolen vehicle. We have consolidated their separate appeals for purposes of judicial economy. Upon review of the various claims of error alleged in their individual briefs, we affirm each conviction.
The jury found all three defendants guilty of three counts of aggravated assault and one count each of burglary, armed robbery, cruelty to children, theft by receiving stolen property, and possession of a firearm during the commission of a crime; in addition Mayes was found guilty of felon in possession of a firearm, and Parnell was found guilty of theft by taking (motor vehicle).
Case Number A03A0665 — Tirus Parnell.
1. The State subpoenaed Parnell's father because of statements Parnell had made to him wherein Parnell admitted his presence during the home invasion. Parnell's statements to his father were exculpatory as to the charged offenses in that he claimed he was at the victims' home in order to purchase marijuana and "another guy came in and kicked the door down and drew a gun and waived a gun, and that was it." The defense moved to quash the subpoena, because Parnell's father is an ordained minister and, thus, any statements made to him were privileged pursuant to OCGA § 24-9-22. The trial court denied the motion, and Parnell claims error in such ruling. We find none.
Every communication made by any person professing religious faith, seeking spiritual comfort, or seeking counseling to a clergy person shall be deemed privileged. However, if such communications are not made to profess religious faith, or to seek spiritual comfort or guidance, but rather are conversational statements to a friend [or] frequent companion the ministerial privilege is not applicable.
(Punctuation, and footnotes omitted.) Morris v. State, 275 Ga. 601, 602(2) ( 571 S.E.2d 358) (2002).
In this case, Parnell did not testify at the motion hearing and, thus, did not testify that he was professing religious faith, seeking spiritual comfort, or seeking spiritual counseling when he made his statements to his father.
Parnell's father testified that his son made the statements to him in the jail parking lot, after he had driven his son to jail so that he could turn himself in. Parnell's father testified that he treats his family differently than other members of his congregation. He testified that he voluntarily told the District Attorney of the statements his son made; that he never indicated to the DA that he was ministering to his son at the time of the statements; and that he offered the exculpatory statements to the DA as an explanation for the charges against his son. Parnell's father testified that he did not start ministering to his son until after he was arrested, which was after the complained of statements were made.
Moreover, nothing about appellant's communications with [his father] indicates that appellant was professing his faith, or seeking spiritual comfort or guidance. Rather, insofar as appellant had decided to turn himself in to the police[,] . . . he asked [his father] to accompany him to the police station and talk to the police on appellant's behalf. Thus, in [talking with his father], appellant did not seek comfort or solace of a spiritual nature, but was rather seeking the help of a [parent] and source of secular strength to accompany him to the police station.
Id. at 603.
Under these circumstances, we find that Parnell's statements to his father in the parking lot of the jail were not privileged communications with a clergyman, and the trial court properly denied the motion to quash the State's subpoena of Parnell's father.
2. In his last claim of error, Parnell contends he received ineffective assistance of counsel because his trial attorney put up a "good character" defense which permitted the State to introduce evidence of his prior arrests for robbery. However, Parnell failed to obtain testimony from his attorney at the motion for new trial hearing on his ineffectiveness claim. In so doing, Parnell failed to recognize his burden of proof:
He, not the State, must overcome the strong presumption that counsel's conduct falls within the broad range of reasonable professional conduct. Without trial counsel's testimony, it is extremely difficult to overcome this presumption. Because his trial attorney did not testify on the motion for new trial, [Parnell] made no affirmative showing that the purported evidentiary deficiencies in his trial counsel's representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy.
(Citations and punctuation omitted.) Morgan v. State, 275 Ga. 222, 227(10) ( 564 S.E.2d 192) (2002).
Here, it is quite possible that Parnell, who also did not testify at the hearing, failed to inform his defense counsel about his criminal record, thereby making a good character defense appear a reasonable strategic choice. Indeed, Parnell may have asked counsel to put forth a good character defense; in that regard, the character witnesses' names and locations would not have originated with defense counsel, but would have come from Parnell and/or his family. Certainly, a "party cannot complain of error created by his own conduct."
(Citation omitted.) Johns v. State, 223 Ga. App. 553, 554(2) ( 479 S.E.2d 388) (1996).
Inasmuch as Parnell failed to establish that any aspect of trial counsel's performance was deficient, the trial court did not err in concluding that Parnell was not deprived of the effective assistance of counsel at trial.
Rivers v. State, 271 Ga. 115, 117-118(2) ( 516 S.E.2d 525) (1999).
Case Number A03A0718 — Jamichael Mayes.
3. Mayes first challenges the trial court's similar transaction ruling which permitted the State to introduce evidence that Mayes committed four prior armed robberies, to which offenses Mayes pled guilty. He contends such evidence was not sufficiently similar to the charged offenses and was introduced for an improper purpose. We disagree.
[T]he test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character. Similarity is an important factor in determining the admissibility of the extrinsic crime; however, it is not the only factor, nor is it necessarily the controlling factor. The ultimate issue for admissibility is whether the evidence of other crimes has relevance to the issues in the trial of the case at bar.
(Citations and punctuation omitted.) King v. State, 230 Ga. App. 301, 302(1) ( 496 S.E.2d 312) (1998).
Here, the charged incident and each of the prior armed robberies were committed by Mayes in the same general vicinity in Columbus. Mayes used a male partner in each offense. He used a handgun in each offense. The charged incident and each of the prior crimes demonstrate a pattern of opportunistic armed robberies, wherein a victim(s) is chosen; the chosen victim is "ambushed"; a handgun is held on him or her; money and/or other valuable property is taken from the victim's person or immediate presence, after which Mayes and his partner abscond immediately with the property. The State articulated as its reason for admission that such evidence would show Mayes' "bent of mind, intent, and modus operandi."
An appellate court "should not disturb the findings of the trial court on the issue of similarity or connection of similar transaction evidence unless they are clearly erroneous." Under the facts presented here, and as the State articulated a proper purpose for the introduction of the evidence, we do not find clear error in the trial court's decision to admit the similar acts evidence.
(Citation and punctuation omitted.) Smith v. State, 273 Ga. 356, 357 (2) ( 541 S.E.2d 362) (2001).
See Gardner v State, 273 Ga. 809, 810(2) ( 546 S.E.2d 490) (2001) (modus operandi, course of conduct, and bent of mind are proper purposes for introduction of similar transaction evidence).
Smith v. State, supra at 356.
4. We likewise reject Mayes' contention that the trial court erred in denying his motion for new trial based on co-defendant Snipe's alleged post-conviction statement that Mayes was not involved in the incident in question. No affidavit was obtained from Snipes, and the alleged statement was proffered through Mayes' trial attorney, Michael Reynolds, who testified that Snipes made such statement to him. Accordingly, Snipes' alleged statement was hearsay and inadmissible, since it falls under no exception to the hearsay rule.
Contrary to Mayes' contention, "necessity" does not provide an exception to the inadmissibility of the disputed hearsay statement, since a required showing for admissibility under such exception is the reliability of the declarant's statement. Clark v. State, 271 Ga. 6, 9(5) ( 515 S.E.2d 155) (1999). And the declarant is, of course, Snipes, not attorney Reynolds. In this instance, "reliability" is sorely lacking: Mayes was identified by two eyewitnesses as a perpetrator of the home invasion; further, prior to conviction — when such statement would have had its strongest import — Snipes never stated that Mayes was not involved in the incident.
"Under the circumstances, it cannot be said that the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility. Thus, we hold that the hearsay evidence lacked the requisite degree of reliability and trustworthiness to authorize its admission under the necessity exception."
(Citations and punctuation omitted.) McCulley v. State, 273 Ga. 40, 42(2)(a) ( 537 S.E.2d 340) (2000).
Further, the victims in this case positively identified Mayes at trial as one of the perpetrators. Snipes' alleged statement that Mayes was not one of the perpetrators would serve only to impeach the victims' testimony. "Because this evidence operates to impeach [the victims'] testimony, a new trial was not required." Accordingly, the trial court did not err in denying Mayes' motion for new trial on the basis of newly discovered evidence.
Tolbert v. State, 231 Ga. App. 516, 517 ( 500 S.E.2d 373) (1998).
Case Number A03A0795 — Darron Snipes.
5. In his first two enumerations of error, Snipes contends the trial court erred by denying his motion to sever his case from that of Parnell and Mayes. We disagree.
A trial court's decision not to sever will be affirmed absent an abuse of discretion. "In a non-death penalty case, the defendant requesting a severance has the burden of making a clear showing of prejudice and a denial of due process in the absence of severance." Here, three defendants is not so numerous that the jury would be likely to confuse the facts and law applicable to each. The relevant evidence against each co-defendant was unambiguous, the applicable law was straightforward, and there was no evidence of any "spillover" effect from one co-defendant to another. Further, "[Snipes] has complained, but has not shown by the record, that the joint trial has created confusion of the evidence and law applicable to each defendant."
Short v. State, 256 Ga. 165, 168(4) ( 345 S.E.2d 340) (1986).
(Citation and punctuation omitted.) Sharpe v. State, 272 Ga. 684, 686(2) ( 531 S.E.2d 84) (2000); accord Owen v. State, 266 Ga. 312, 314(2) ( 467 S.E.2d 325) (1996).
See Moore v. State, 224 Ga. App. 797, 798(2) ( 481 S.E.2d 892) (1997); accord Mayfield v. State, 220 Ga. App. 19, 20(2) ( 467 S.E.2d 352) (1996).
(Citation and punctuation omitted.) Price v. State, 223 Ga. App. 185, 187(5) ( 477 S.E.2d 353) (1996).
In addition, "the existence of antagonistic defenses . . . or the loss of the right to make opening and closing statements to the jury does not constitute a showing of prejudice amounting to a denial of due process." And the fact that the evidence against Snipes was not as strong as that against his co-defendants does not warrant severance.
Steele v. State, 216 Ga. App. 276, 279(3) ( 454 S.E.2d 590) (1995), reversed on other grounds in Kennebrew v. State, 267 Ga. 400 ( 480 S.E.2d 1) (1996).
The burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.
(Citations omitted.) Moss v. State, 275 Ga. 96, 99(2) ( 561 S.E.2d 382) (2002).
In the present case, we conclude that Snipes did not make a clear showing that any antagonism between his co-defendants and himself was harmful to him and amounted to a denial of due process. Accordingly, we conclude that the trial court did not abuse its discretion in denying Snipes' motion to sever.
6. Next, Snipes challenges the sufficiency of the evidence against him. As an appellate court, we do not weigh the evidence, judge the credibility of witnesses or resolve conflicts in trial testimony when the sufficiency of the evidence is challenged. Instead, we determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. "As long as there is some evidence, even though contradicted, to support each necessary element of the State's case, the jury's verdict will be upheld."
(Citation and punctuation omitted.) Brinson v. State, 245 Ga. App. 411, 412-413(1) ( 537 S.E.2d 795) (2000).
In that regard and in a light most favorable to the verdict, the record shows that, at approximately 10:30 a.m. on Sunday, October 7, 2001, eyewitness Horace Hickey, who had known Snipes for 13 years, saw Snipes drive Parnell and Mayes to the victims' home in a White Pontiac Grand Am. Snipes let Parnell out and waited while Parnell entered the home and then returned almost immediately to the car; Snipes drove off. Thirty minutes later, Snipes drove Parnell and Mayes back to the victims' home and circled the block around the home "real slow," while the three men pointed and looked at the victims' house; he parked in front of the house and waited in the car while Parnell and Mayes entered the victims' residence. Shortly thereafter, Parnell and Mayes ran "at a high pace" back to the waiting car, jumped in, and Snipes drove off. Immediately, one of the victims ran to Hickey's residence "upset, crying and hysterical and asked . . . could she use [the] phone because she had just been robbed." The Pontiac Grand Am had been stolen in the early morning hours of the incident date and was found abandoned the next morning; Snipes' fingerprints were found in the vehicle when it was recovered, as were the fingerprints of Parnell and Mayes.
Jackson v. Virginia, 443 U.S. 307 ( 99 S.Ct. 2781, 61 L.E.2d 560) (1979).
A participant to a crime may be convicted although he is not the person who directly commits the crime. A person who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime may be convicted of the crime as a party to the crime. Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime. Whether appellant was a party to the crime and aided and abetted [Parnell and Mayes in the home invasion] or intentionally advised, encouraged [Parnell and Mayes] to commit the crimes was a question for the jury.
Burks v. State, 268 Ga. 504, 505 ( 491 S.E.2d 368) (1997).
Here, Snipes was driving a stolen car that he knew was not his; he returned to the victims' house, which he had left only a short time before; he slowly circled the victims' residence, pointing at the house; he appeared to let the co-defendants out of the car for a specific purpose, since he saw them enter the victims' home and waited for them, demonstrating that he knew they would return shortly; then, when the co-defendants ran back to the car and jumped in, Snipes drove off in response to their rapid return. Shortly thereafter, Snipes abandoned the stolen car.
Where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.
(Citations and punctuation omitted.) Foster v. State, 273 Ga. 34, 35(1) ( 537 S.E.2d 659) (2000).
In this case, we find the evidence, although circumstantial, was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Snipes was the "get away" driver for Parnell and Mayes and, thus, was a party to the charged offenses. Viewed in the light most favorable to the verdict, the jury could have found that every reasonable hypothesis except Snipes' guilt was excluded.
"A person is concerned in the commission of a crime . . . if he . . . [i]ntentionally aids or abets in the commission of the crime." OCGA § 16-2-20(b)(3).
See Rushing v. State, 271 Ga. 102, 105(3) ( 515 S.E.2d 607) (1999).
7. Snipes contends the trial court's charge on reasonable doubt was error because "only circumstantial evidence, with a different burden of proof, was used against him." Snipes fails to state what specific error was made in the disputed charge; we have reviewed it and find it proper. In addition, the trial court charged on the law regarding circumstantial evidence, grave suspicion, and mere presence. There was no error.
8. We likewise find no error in the trial court's charge on conspiracy and parties to a crime. The evidence sufficiently raised these issues. Contrary to Snipes' contentions, "It has been repeatedly held that a conspiracy may be proven and a jury charge may be given on conspiracy and parties to a crime even though a defendant is not indicted under those theories."
(Citation and punctutation omitted.) Mangum v. State, 274 Ga. 573, 578(3)(d) ( 555 S.E.2d 451) (2001).
9. During jury deliberations, no re-charge on the law was requested. However, the jury did ask the trial court if they could review a "hard copy" of the testimony of several witnesses; in addition, the jury asked to be told the exact time of the home invasion. The trial court denied both jury requests; the first because a "hard copy" of testimony was unavailable and the second because the evidence was closed. Although no objection to the trial court's response to the jury's questions was made, Snipes now claims error thereon.
Snipes' failure to object to the trial court's reply to the jury's questions waives any claim of error relating thereto. "Absent a ruling by the trial court on this issue, there is nothing for this Court to review." While Snipes claims otherwise, a general reservation to a trial court's jury charge does not thereafter relieve counsel from preserving objection to the court's later interaction with the jury on matters unrelated to the court's charge. "If counsel desires to preserve an objection upon a specific point for appeal, the objection must be made at trial upon that specific ground."
Banks v. State, 244 Ga. App. 191, 193(1)(d) ( 535 S.E.2d 22) (2000).
(Citations and punctuation omitted.) Kelly v. State, 204 Ga. App. 789(1) ( 420 S.E.2d 651) (1992).
10. Snipe's seventh claim of error appears to be a general contention that the trial court's jury charge was error for failure "to give special separate instructions as to the law, evidence, and each of the 10 charges in the Indictment as to each Defendant." Pertinently, Snipes fails to identify the nature of these "special separate instructions"; does not direct our attention to his request for such special instructions, either orally or in writing; and fails to assert how the trial court's charge — as a whole — failed to adequately apprize the jury of the facts and the law of this case. Our review shows the trial court's charge was thorough and complete. And, Snipes' claim to the contrary notwithstanding, the trial court did indeed charge the jury that, "conviction of one defendant does not necessarily require the conviction of another or of all. You, the jury, must determine the guilt or innocence of each defendant separately.". Accordingly, this claim of error is meritless.
11. Finally, we reject Snipes contention that the notice the State served him of its intent to use four prior felony convictions in aggravation of punishment was somehow defective because such notice was not re-served after the State re-indicted him on the same offenses. At trial, defense counsel stated that he was aware of the State's intent to seek recidivism punishment in this case and that notice of such intent had been received. This is sufficient to satisfy the "clear notice" required by OCGA § 17-10-2. Moreover, no objection was made to the introduction of Snipes' felony convictions: "I have no objection to them. They all appear to be proper certified copies of convictions of my client." Accordingly, objection to the admission of this evidence is waived. Judgment affirmed. Johnson, P.J., and Mikell, J., concur.
Mullinax v. State, 242 Ga. App. 561, 563(2) ( 530 S.E.2d 255) (2000); Herrington v. State, 243 Ga. App. 265, 267(4) ( 533 S.E.2d 133) (2000).
Strange v. State, 244 Ga. App. 635, 638(2) ( 535 S.E.2d 315) (2000).