Roberts v. State ( 2003 )

577 S.E.2d 580 (2003) 276 Ga. 258

ROBERTS
v.
The STATE.

No. S02A1807.

Supreme Court of Georgia.

February 24, 2003.

James J. Lacy, Brunswick, for appellant.

Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Christopher M. Quinn, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Kyle A. Pearson, Asst. Atty. Gen., for appellee.

CARLEY, Justice.

A jury found Tyrone Roberts guilty on alternative counts of malice murder and felony murder, as well as on six counts of aggravated assault with a deadly weapon. The trial court correctly treated the felony murder verdict as surplusage, and merged one of the aggravated assault counts into the malice murder. Malcolm v. State, 263 Ga. 369, 371-374(4, 5), 434 S.E.2d 479 (1993). The trial court entered judgment on the other guilty verdicts and sentenced Roberts to life imprisonment for malice murder, a consecutive 20-year term on one of the aggravated assault counts, and concurrent 20-year terms on the remaining counts. A motion for new trial was denied, and he appeals.^[1] One of his co-indictees, David Michael Johnson, was tried separately and also convicted of malice murder and aggravated assault, and this Court affirmed those convictions. Johnson v. State, 275 Ga. 630, 570 S.E.2d 309 (2002).

1. Construed in support of the verdicts, the evidence shows that an automobile stopped in front of a barber shop in Atlanta, and four or five men exited the vehicle. Roberts, who was wearing a red jersey with an number "1" on the front, stationed himself outside in front of the glass window. Three other men went into the shop to confront the owner about money he supposedly owed them. When a customer went outside to collect her five-year-old son, Appellant put a gun in her face and asked where she was going. The murder victim, a barber, distracted Roberts' attention away from the customer and her son, and began to run across the street. Eyewitnesses saw Appellant standing by the door of the barber shop shooting repeatedly at the murder victim, who died from his wounds. Roberts also fired three shots into the store. When he was arrested, the police recovered a nine-millimeter Glock pistol which had fired a bullet found near the body of the murder victim. The evidence was sufficient to enable a rational trier of fact to find Appellant guilty beyond a reasonable doubt of all crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Johnson v. State, supra at 631(1), 570 S.E.2d 309.

2. Roberts contends that the trial court erred in refusing to disqualify two jurors for cause.

Juror Hathaway expressed dissatisfaction with the probated sentence received by the person convicted of assaulting her daughter and, under prodding by defense counsel, admitted that that experience might possibly make her more inclined towards the prosecution. However, she also stated that she did not hold Appellant responsible, and believed that she could be fair and impartial in judging the evidence. After reviewing all of this juror's responses, we conclude that the trial court did not abuse its discretion in finding that she "would remain impartial despite her past experience and her honestly expressed concerns about the possible impact of that experience upon her deliberations. [Cit.]" Raheem v. State, 275 Ga. 87, 91(6), 560 S.E.2d 680 (2002). "A prospective juror's doubt as to his or her own impartiality does not demand as a matter of law that he or she be excused for cause. [Cit.]" Corza v. State, 273 Ga. 164, 166(3), 539 S.E.2d 149 (2000).

Juror Wright stated that he probably leaned towards the prosecution, that he was inclined to listen to a police officer before a random passerby, that an indictment indicated some suspicion of guilt, and that the burden of proof shifts a little bit towards the defense. However, he also declared that he would not want to convict someone who was innocent, and would try his best to be fair, to make the best decision on the evidence, and to follow the trial court's instructions regarding the presumption of innocence and the burden of proof. The fact that a juror has expressed a belief in the credibility of police officers does not require that he be excused for cause. Brown v. State, 268 Ga. 354, 356(3), 490 S.E.2d 75 (1997). Excusal is not required "when a potential juror states that he or she will ``try' to decide the case based upon the court's instructions and the evidence. [Cits.]" Corza v. State, supra at 166-167(3), 539 S.E.2d 149. As there is no evidence that this juror had formed an opinion so fixed and definite that it would not be changed by the evidence or the charge of the trial court, we do not find any manifest abuse of discretion in the trial court's refusal to strike Juror Wright for cause. Wilson v. State, 271 Ga. 811, 816(5)(a), 525 S.E.2d 339 (1999).

3. Appellant further contends that the trial court abused its discretion in disqualifying a prospective juror for cause. That juror stated that it would be hard for him to convict a young black man, that the system is unbalanced in favor of the State, and that a prior false accusation against him is an example of the system's unfairness. The attempted rehabilitation of the prospective juror was brief and ambiguous. A juror's racial bias, experience with false accusations, and belief that the judicial system is unfair may be grounds to excuse him for cause. Pruitt v. State, 270 Ga. 745, 751(13), 514 S.E.2d 639 (1999); Menefee v. State, 270 Ga. 540, 542(2), 512 S.E.2d 275 (1999); Perry v. State, 264 Ga. 524, 525(2), 448 S.E.2d 444 (1994); McClain v. State, 220 Ga.App. 474, 477(6), 469 S.E.2d 756 (1996). Thus, "we cannot conclude that the trial [court] abused its discretion in excusing this juror." Pruitt v. State, supra at 751(13), 514 S.E.2d 639.

4. Roberts complains that the trial court erred in giving the following charge: "You are only concerned with the guilt or innocence of the defendants. You are not to concern yourselves with punishment." Contrary to Roberts' argument, this instruction does not constitute an expression or intimation of the court's opinion about the defendant's guilt, and has consistently been found acceptable. Smith v. State, 268 Ga. 42, 43(2), 485 S.E.2d 189 (1997). See also George v. State, 260 Ga. 809, 811(5)(c), 400 S.E.2d 911 (1991); Mullen v. State, 197 Ga.App. 26, 28(4)(a), 397 S.E.2d 487 (1990). The charge is an accurate statement of the law which "is not misleading, but is sufficiently clear to be understood by jurors of ordinary understanding. [Cit.]" Brown v. State, 198 Ga.App. 352, 353(2), 401 S.E.2d 568 (1991). Furthermore, the use of the word "innocence" in the first portion of the instruction, when considered either in isolation or as part of the whole charge, did not shift the burden of proof to the defense. Roker v. State, 262 Ga. 220, 221(4), 416 S.E.2d 281 (1992). To the contrary, the first sentence of the charge actually clarifies the second sentence. Slaughter v. State, 217 Ga.App. 449, 451(3), 459 S.E.2d 168 (1995); Padgett v. State, 205 Ga.App. 576, 577(1), 423 S.E.2d 411 (1992); Johnson v. State, 194 Ga.App. 743, 745(4), 391 S.E.2d 716 (1990).

5. Appellant makes several enumerations of error with respect to the felony murder count of the indictment and the jury charge thereon. "However, any issue concerning the felony murder count is moot, since the trial court entered a judgment of conviction and sentence only on the verdict finding [Roberts] guilty of malice murder. [Cit.]" Boddy v. State, 265 Ga. 498, 499(4), 458 S.E.2d 630 (1995) (indictment). See also Raheem v. State, supra at 89(2), 560 S.E.2d 680 (indictment); McKenzie v. State, 274 Ga. 151, 152(4), 549 S.E.2d 337 (2001) (jury charge); Pickren v. State, 272 Ga. 421, 422(1), 530 S.E.2d 464 (2000) ("any issues").

6. The trial court did err in charging the jury that it could infer intent to kill from use of a deadly weapon. Harris v. State, 273 Ga. 608, 609-610(2), 543 S.E.2d 716 (2001). "However, the error was not of constitutional magnitude. [Cit.]" Harris v. State, 274 Ga. 422, 426(6)(d), 554 S.E.2d 458 (2001). Roberts did not present any evidence, and the eyewitness testimony and other evidence of malice murder are overwhelming. "[A]ccordingly, it was ``highly probable that the error did not contribute to the judgment,' and the error was harmless. [Cit.]" Scott v. State, 275 Ga. 305, 308(5), 565 S.E.2d 810 (2002).

Judgments affirmed.

All the Justices concur.

NOTES

[1] The crimes occurred on March 24, 1998. The grand jury returned an indictment on May 22, 1998, which was eventually nolle prossed. Roberts was re-indicted on July 16, 1999. The jury found him guilty on February 28, 2000, and the trial court entered the judgments of conviction and sentences on April 26, 2000 and corrected the sentences by consent order on August 14, 2000. Roberts filed a motion for new trial on March 22, 2000, which was amended on August 7, 9, and 11, 2000. The trial court denied the motion on November 5, 2001, and Roberts filed a notice of appeal on November 9, 2001. The case was docketed in this Court on August 9, 2002 and submitted for decision on September 30, 2002.