Opinion
S07A1668
DECIDED: FEBRUARY 25, 2008
Waylon George was fatally shot in the parking lot of a Cobb County apartment complex where he had arranged to meet someone to purchase cocaine. A woman who had accompanied the victim to the meeting place testified that a white sport utility vehicle with tinted windows drove up and parked on her side of the vehicle in which she and the victim sat. The driver of the SUV then moved the SUV so that the SUV's passenger side was next to the victim's side of the car. The victim left the car to throw away some trash and was shot in the chest as he returned to the car. The woman saw a person holding a gun lean out the window of the SUV at the time the victim was shot, and a .223-caliber cartridge casing was recovered from the scene. The victim's cellular phone records reflected phone calls from a resident of the apartment complex, and the resident told investigating officers the victim had contacted both him and appellant in an effort to purchase several ounces of cocaine. The resident had arranged to meet the victim in the apartment complex's parking lot to complete the drug transaction and had told appellant of the arrangement shortly before the victim was shot. Appellant told police he had sent two men to meet the victim in the parking lot and rob him, and gave police information about the weapon used to kill the victim. Telephone records indicated that appellant and one of the men he had sent to meet the victim had been in touch telephonically at least 16 times the day the victim was killed, including one phone call about twelve minutes before the police dispatch concerning the shooting and another phone call approximately four minutes after the dispatch. The two men sent by appellant, Lanny Frazier and Travis Wilson, were indicted with appellant and were found guilty of the charges in a trial that took place before appellant's trial.
The victim was killed on February 26, 2005, and, on May 27, 2005, the Cobb County grand jury returned a true bill of indictment charging appellant and two others with malice murder, felony murder (aggravated assault), felony murder (conspiracy to commit armed robbery), aggravated assault, and conspiracy to commit armed robbery. Appellant's trial commenced on November 28, 2005, and, after the trial court directed a verdict of acquittal on the malice murder charge, concluded on December 1, 2005, with the jury's return of guilty verdicts on the remaining charges. Appellant's sentences of life imprisonment for felony murder and a consecutive sentence of 20 years for aggravated assault were entered on December 2, and his timely motion for new trial was filed on December 5, 2005. The motion, amended February 2 and May 2, 2007, was denied on May 3, 2007. Appellant filed a timely notice of appeal on May 23, pursuant to which the appeal was docketed in this Court on July 19. It was submitted for decision on the briefs.
1. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of felony murder, with the underlying felony being conspiracy to commit armed robbery, and aggravated assault. Jackson v. Virginia, 443 U.S. 307 ( 99 SC 2781, 61 LE2d 560) (1979).
2. Contending that two incriminating statements he made during custodial interrogations were involuntary because they were improperly induced by hope of benefit, appellant sought suppression of the statements. Following a hearing held pursuant to Jackson v. Denno, 378 U.S. 368 ( 84 SC 1774, 12 LE2d 908) (1964), the trial court denied the motion after finding that neither statement was induced by an improper hope of benefit. Appellant now asserts that ruling as error.
Prior to each of the interrogations he underwent, appellant was advised of his rights under Miranda v. Arizona, 384 U.S. 436 ( 86 SC 1602, 16 LE2d 694) (1966), and executed a written waiver of rights.
Defense counsel did not waive appellate review of the issue by failing to renew at trial the objection to the admission of the defendant's statements following the unfavorable ruling at theJackson-Denno hearing. Simpson v. State, 277 Ga. 356 (2) ( 589 SE2d 90) (2003). While defense counsel acquiesced to the introduction into evidence of the DVD containing the recordings of the interviews of the defendant for the limited purpose of creating an appellate record, we do not view that limited acquiescence as an affirmative withdrawal by counsel of the objection previously made (compare Dyer v. State, 233 Ga. App. 770, 771 ( 505 SE2d 71) (1998)) or a statement by which counsel conceded the validity of the trial court's ruling on the voluntariness of the defendant's statements following the Jackson-Denno hearing. Compare Givens v. State, 281 Ga. App. 370, 371-372 ( 636 SE2d 94) (2006). Accordingly, we address the merits of appellant's contention.
Under Georgia law, only voluntary incriminating statements are admissible against the accused at trial, and the State has the burden of proving the voluntariness of a confession by a preponderance of the evidence. State v. Ritter, 268 Ga. 108 (1) ( 485 SE2d 492) (1997). OCGA § 24-3-50 requires that an admissible confession "must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury." Generally, the "hope of benefit" to which the statute refers has been construed as a hope of lighter punishment. Preston v. State, 282 Ga. 210 (2) ( 647 SE2d 260) (2007) (in the absence of an explicit promise of a lighter sentence, officer's discussion of the death penalty and life without parole was not a hope of benefit but an explanation of the seriousness of the defendant's situation); Brown v. State, 278 Ga. 724 (3) ( 609 SE2d 312) (2004) (no evidence of hope of benefit in the absence of evidence a detective led defendant to believe he would receive a lighter sentence or immediate freedom if he confessed); Evans v. State, 277 Ga. 51, 53 ( 586 SE2d 326) (2003) (no evidence of hope of benefit in the absence of evidence an officer referred to any possibility of a lighter sentence when questioning defendant); State v. Roberts, 273 Ga. 514 (3) ( 543 SE2d 725) (2001) (exhortations to tell the truth are not a hope of benefit that renders a confession inadmissible under § 24-3-50); State v. Ray, 272 Ga. 450(2) ( 531 SE2d 705) (2000) (officer's promise of "years of freedom" in response to defendant's query of what would he get for naming his accomplice was a hope of benefit); State v. Ritter, supra, 268 Ga. 108 (1) (implied promise that defendant could not be charged with murder but only aggravated assault if he incriminated himself resulted in an inadmissible confession based upon the hope the defendant faced a lighter possible criminal penalty than he actually faced); Cooper v. State, 256 Ga. 234 (2) ( 347 SE2d 553) (1986) (officer's stated desire to help suspect is not a hope of benefit); Caffo v. State, 247 Ga. 751 (3) ( 279 SE2d 678) (1981) (admonition to tell the truth is not a hope of benefit); Richardson v. State, 265 Ga. App. 711, 715 ( 595 SE2d 565) (2004) (an impermissible hope of benefit may also include the reward of no charges being filed against the defendant).
The statements at issue were made by appellant during the second and third interviews he had with investigating detectives. The first two interviews were conducted while appellant was in custody on a probation violation, and the third interview took place after the issuance of an arrest warrant for appellant in connection with the victim's death, charging appellant with conspiracy to commit armed robbery, conspiracy to commit aggravated assault, and felony murder. During the first interview, appellant acknowledged knowing the victim, admitted having spoken on the telephone with the victim three times the day the victim was killed and three times with one of the men who was later indicted with appellant, and acknowledged he knew the victim had arranged to purchase drugs from a resident of the apartment complex where the victim was killed.
The second interview took place a week later, and the detectives confronted appellant with his telephone records which were at odds with appellant's earlier statements concerning his contact with the victim the day of the shooting. During that interview, the detectives twice told appellant he could be a witness or a defendant. Each time, appellant made an incriminating statement shortly thereafter. Two days later, after obtaining an arrest warrant for appellant, the detectives interviewed appellant for the third time and were focused on finding the weapon. When appellant was not forthcoming about the location of the weapon, the detectives executed a document in which they promised not to press additional charges related to the weapon against appellant. Thereafter, appellant admitted he had provided the co-indictees with the murder weapon and told the detectives the gun could be found at his father's home.
The true bill of indictment returned by the Cobb County grand jury 10 weeks after the third interview contained a count charging malice murder in addition to the charges mentioned in the arrest warrant. At trial, the trial court granted appellant's motion for directed verdict of acquittal on the malice murder charge.
Appellant contends the interrogators' statements in the second interview that appellant could be a witness or a defendant were implied promises of lighter punishment, including the possibility of escaping punishment altogether. See State v. Ritter, supra, 268 Ga. 108 (1). However, in Duke v. State, 268 Ga. 425 (2) ( 489 SE2d 811) (1997), where interrogating officers described the defendant's situation as one in which he could be a witness or a defendant, this Court affirmed the trial court's denial of the motion to suppress, concluding that the officers "clearly did not imply that [the defendant] would not be charged if he was himself involved in the murder[,]" but were only encouraging him to tell the truth. Exhortations to tell the truth are not a hope of benefit that renders a confession inadmissible under § 24-3-50. Id.
Appellant maintains that statements he made in the third interview after the detectives executed the document promising not to press against him any additional charges related to the weapon were the basis of a detective's trial testimony that appellant was the source of the murder weapon. Even if we were to assume the trial court erred in finding that appellant's statements in the third interview were not induced by a hope of benefit, that error was rendered harmless by two things: the prosecutor's decision not to present evidence of appellant's post-agreement statements and evidence resulting therefrom, and appellant's affirmative reply during the second interview that the two co-indictees had returned to appellant's home to obtain the gun after appellant had instructed the duo to rob the victim. SeeRichardson v. State, supra, 265 Ga. App. at 716 (where cumulative evidence rendered harmless the erroneous admission of defendant's statement).
Despite the trial court's ruling that appellant's disclosure of the location of the murder weapon was not induced by hope of benefit, the prosecuting attorney informed the trial court and defense counsel at the trial's commencement that, out of an abundance of caution, he would not be presenting evidence of appellant's post-agreement statements or evidence of the murder weapon.
The erroneous admission of an involuntary statement is subject to "harmless error" analysis. Richardson v. State, supra, 265 Ga. App. at 716.
Appellant also contends his statement was involuntary because it was made after the detectives told him they would search the homes of his family and loved ones in order to find the murder weapon, and they would arrest anyone found in possession of illegal substances. Appellant did not raise this issue before the trial court, and error not raised in the trial court will not be heard on appeal. Earnest v. State, 262 Ga. 494 (1) ( 422 SE2d 188) (1992).
3. Appellant contends the trial court, over appellant's objection, erroneously permitted the prosecuting attorney to include in his closing argument matters that went beyond the scope and content of a stipulation entered into by the parties. Appellant's trial counsel entered into a stipulation with the prosecutor by which the jury was told by the trial court that appellant's co-indictees had been tried and convicted of murder, aggravated assault, and conspiracy to commit armed robbery. During closing argument, defense counsel objected when the prosecutor mentioned the convictions of the co-indictees and that they had been convicted of conspiring with appellant to commit armed robbery.
A stipulation is a formal admission of fact into evidence made for the purpose of dispensing with formal proof thereof. Whatley v. State, 189 Ga. App. 173 (4) ( 375 SE2d 245) (1988). In closing argument, counsel is entitled to draw reasonable inferences or deductions from the evidence. Messick v. State, 276 Ga. 528 (2) ( 580 SE2d 213) (2003). The indictment returned by the Cobb County grand jury against appellant and his co-indictees and upon which appellant was tried charged the trio with conspiring with one another. Since the indictment charged all three men with conspiring with each other and it was stipulated that the co-indictees had been convicted of conspiracy, it was permissible, as a reasonable inference drawn from the evidence, for the prosecutor to argue that the co-indictees had been convicted of conspiring with appellant. See Miller v. State, 275 Ga. 730 (7) ( 571 SE2d 788) (2002). Accordingly, the trial court did not err when it overruled appellant's objection to the closing argument.
4. Appellant next contends trial counsel rendered ineffective assistance of counsel by entering into the aforementioned stipulation. To prevail on a claim of ineffective assistance of counsel, appellant "must show counsel's performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel's errors, the outcome of the trial would have been different. A strong presumption exists that counsel's conduct falls within the broad range of professional conduct." Pruitt v. State, 282 Ga. 30 (4) ( 644 SE2d 837) (2007).
Trial counsel testified at the hearing on the motion for new trial that he and appellant had discussed how to handle the fact that the co-indictees had been tried and convicted. In light of appellant's defense that he was not present when the victim was killed and was involved only in a failed drug deal in which he had no intent to hurt the victim, they decided it was better to allow the information to come in by stipulation. "Entering into a stipulation is a valid trial strategy [cits.], and reasonable trial strategy does not constitute deficient performance." Id., at Div. 4e. In gauging whether an attorney's trial tactics are reasonable, "[w]e ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. . . ." Jefferson v. Zant, 263 Ga. 316 (3a) ( 431 SE2d 110) (1993). That appellate counsel would have pursued a different strategy does not require a finding that trial counsel's strategic decision was unreasonable. See Stewart v. State, 263 Ga. 843 (6) ( 440 SE2d 452) (1994), overruled on other grounds in Wall v. State, 269 Ga. 506 ( 500 SE2d 904) (1998). In as much as the strategic decision made by trial counsel in consultation with appellant is one which a reasonable lawyer in the circumstances could have made, we conclude that trial counsel did not perform deficiently in agreeing to the stipulation. In the absence of deficient performance, appellant did not establish ineffective assistance of counsel. Pruitt v. State, supra, 282 Ga. 561 (5).
5. Lastly, appellant complains the guilty verdict on the charge of aggravated assault should not have resulted in the imposition of a sentence of imprisonment. In addition to finding appellant guilty of the separate count of aggravated assault, the jury found appellant guilty of conspiracy to commit attempted armed robbery and guilty of two charges of felony murder, one alleging aggravated assault of the victim as the predicate felony and the other alleging conspiracy to commit armed robbery as the predicate felony. The felony murder/conspiracy count charged that, "while in the commission of . . . conspiracy to commit armed robbery, [appellant and the co-indictees] did cause the death of [the victim] . . . by shooting him with a firearm, to wit: a .223 caliber rifle." The felony murder/aggravated assault count charged that, "while in the commission of . . . aggravated assault, [appellant and the co-indictees] did cause the death of [the victim] . . . by shooting him with a firearm, to wit: a .223 caliber rifle. . . ." The aggravated assault count charged that appellant and the co-indictees "did unlawfully make an assault upon the person of [the victim] with intent to rob and with a deadly weapon, to wit: a .223 caliber rifle, a firearm. . . ."
Since only one person was killed, appellant could be sentenced on only one of the jury's two felony murder guilty verdicts. Rhodes v. State, 279 Ga. 587 (2) ( 619 SE2d 659) (2005) (sentencing defendant on multiple felony murder guilty verdicts where one person was killed improperly subjects the defendant to multiple convictions and punishments for one crime, in violation of OCGA § 16-1-7(a)). It was within the trial court's discretion to decide on which felony murder guilty verdict to impose sentence and which felony murder guilty verdict to vacate (see Hill v. State, 281 Ga. 795 (1b) ( 642 SE2d 64) (2007)), and the trial court chose to sentence appellant on the felony murder count in which the predicate felony was conspiracy to commit armed robbery. As a result, the trial court correctly merged into that felony murder conviction the guilty verdict on the separate count of conspiracy which served as the predicate for the felony murder charge on which the trial court imposed sentence. Hawkins v. State, 267 Ga. 124 (2) ( 475 SE2d 625) (1996).
Appellant could be sentenced on the separate count of aggravated assault which served as the predicate for the felony murder charge that was vacated by operation of law as long as the aggravated assault did not merge by law or fact into the felony murder conviction for which he was sentenced, i.e., felony murder with conspiracy to commit armed robbery. Rhodes v. State, supra, 279 Ga. at 589. As noted earlier, the count of the indictment charging felony murder with conspiracy as the predicate offense charged that, "while in the commission of . . . conspiracy to commit armed robbery, [the indictees] did cause the death of [the victim] . . . by shooting him with a firearm, to wit: a .223 caliber rifle." The felony murder/conspiracy count included as a material averment the manner in which the indictees were alleged to have caused the victim's death — by shooting him with a .223-caliber rifle. A material averment is one that describes "either the offense or the manner in which it was committed[,]" and the prosecution is required to prove the material averment as alleged in order to obtain a conviction for felony murder/conspiracy to commit armed robbery. McBride v. State, 202 Ga. App. 556, 557 ( 415 SE2d 13) (1992). See also Bell v. State, 227 Ga. 800, 802 ( 183 SE2d 357) (1971) ("In criminal law an unnecessarily minute description of a necessary fact must be proved as charged. . . . "). Compare Jones v. State, 279 Ga. 854 (4) ( 622 SE2d 1) (2005) (where an averment describing the infliction of serious bodily injury in a count charging armed robbery was surplusage since serious bodily injury is not an element of armed robbery).
Because of the language used in the felony murder/conspiracy count, we are presented with the unusual situation in which two separate felony charges merge into the felony murder count, with one serving as the predicate felony and the other merging as a matter of fact in light of the material averment concerning the manner in which the victim's death was caused. Accordingly, the trial court erred when it sentenced appellant on the guilty verdict returned on the separate aggravated assault charge and when it failed to merge the aggravated assault guilty verdict into the felony murder/conspiracy conviction.
Judgment affirmed in part and vacated in part. All the Justices concur.