Carter v. State

343 Ga.App. 853

805 S.E.2d 924

CARTER

v.The STATE.

A17A0860

Court of Appeals of Georgia.

October 23, 2017

Reconsideration Denied November 14, 2017

Certiorari Denied August 2, 2018

Reconsideration Denied August 27, 2018

Michael Wayne Tarleton, for Appellant.

Sherry Boston, District Attorney, Gerald Mason, Assistant District Attorney, for Appellee.

Branch, Judge.

On appeal from his conviction for aggravated assault and other crimes, Robert Carter argues that the trial court committed plain error and violated the former version of OCGA § 17-8-57 when it reminded a witness during her direct examination that she was "in the room" when a co-defendant uttered a threat. We find no error and affirm.

"On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence." Reese v. State , 270 Ga. App. 522, 523, 607 S.E.2d 165 (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citation and emphasis omitted).

So viewed, the record shows that late on the evening of November 18, 2009, the male and female victims were at their home in DeKalb County when Edward Brooks knocked on their door. When the male victim let Brooks into the house, Carter entered behind Brooks. Brooks brandished a handgun and told the male victim that Brooks was going to kill him. Carter, who was also carrying a gun, pointed it at the male victim's feet. Brooks and the male victim grappled over Brooks's gun, which discharged into the floor during the struggle. When Brooks and Carter fled, the male victim ran across the street and called 911.

Brooks and Carter went to the home of Justin Moore, where Brooks asked for a ride to a store. The three men got into a van with Brooks driving. Police soon located the van and pulled it over. As they did so, Brooks threw the handgun he was carrying to Moore, who put it "up under the seat." The officer making the traffic stop of the van saw a handgun between the door jamb and seat on the passenger side and a second handgun at Moore's feet in the back seat.

Brooks and Carter were arrested, and each man was charged with two counts of aggravated assault, two counts of possession of a firearm during the commission of a felony, and one count of possession of a firearm by a convicted felon. Brooks pled guilty in the middle of trial and testified for the defense. Moore was charged with and pled guilty to possession of a firearm by a convicted felon.

On direct examination by the State, the female victim testified that she was in the living room when Brooks entered it with a gun. The following colloquy then took place:

Q: And what was [Brooks] saying while he had that gun in his hand?

A: He had said what I said he said before[,] and he said it once, he was holding the gun, and it wasn't pointed, and I left, I left the room.

Q: What else was he saying?

A: Like what? Such as?

At this point, the trial court addressed the female victim: "Ma'am, you were in the room . What else did [Brooks] say in your presence that you know [of]?" (Emphasis supplied.) The State then resumed its examination by asking, "What did [Brooks] say about Felicia Putney?"¹ The victim responded:

A: Oh, okay. He said that we were trying to hook her up with somebody else, you know, which wasn't true.

Q: And was he angry about that?

A: Yes.

Carter's trial counsel did not object to any of these proceedings.

After a jury found Carter guilty of the aggravated assault and the first firearm charge, the State introduced a copy of Carter's prior felony conviction. The jury then found Carter guilty of possession of a firearm by a convicted felon. Carter was convicted and sentenced to seventeen years with twelve to serve. His motion for new trial was denied.

1. The evidence outlined above was sufficient to sustain Carter's conviction. See OCGA §§ 16-5-21 (a) (defining aggravated assault, including assault "[w]ith a deadly weapon"); 16-11-106 (b) (defining possession of a firearm during the commission of a felony); 16-11-131 (b) (defining possession of a firearm by a convicted felon); Jackson , supra.

2. Carter's only asserted error on appeal is that the trial court committed plain error when it reminded the female victim that she was "in the room" when Brooks made certain statements even though her presence was a material fact for the jury to determine. We disagree.

Carter was tried in 2011, at which time former OCGA § 17-8-57 provided:

It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.

This Code section was amended effective July 1, 2015 (Ga. L. 2015, p. 1050, § 1), before the denial of Carter's motion for new trial, and now provides:

(a)(1) It is error for any judge, during any phase of any criminal case, to express or intimate to the jury the judge's opinion as to whether a fact at issue has or has not been proved or as to the guilt of the accused. (2) Any party who alleges a violation of paragraph (1) of this subsection shall make a timely objection and inform the court of the specific objection and the grounds for such objection, outside of the jury's hearing and presence. After such objection has been made, and if it is sustained, it shall be the duty of the court to give a curative instruction to the jury or declare a mistrial, if appropriate.

(b) Except as provided in subsection (c) of this Code section, failure to make a timely objection to an alleged violation of paragraph (1) of subsection (a) of this Code section shall preclude appellate review, unless such violation constitutes plain error which affects substantive rights of the parties . Plain error may be considered on appeal even when a timely objection informing the court of the specific objection was not made, so long as such error affects substantive rights of the parties.

(c) Should any judge express an opinion as to the guilt of the accused, the Supreme Court or Court of Appeals or the trial court in a motion for a new trial shall grant a new trial.

(Emphasis supplied.) Both versions of OCGA § 17-8-57 "provide that it is error for the trial court to express or intimate his opinion about what has or has not been proved."

Quiller v. State , 338 Ga. App. 206, 208, 789 S.E.2d 391 (2016) (citations omitted). Applying subsection (b) of the new statute, we review any allegedly improper statement for plain error. Id. at 209, 789 S.E.2d 391 (applying OCGA § 17-8-57 (b) retroactively to cases tried prior to the statute's effective date). In the absence of any objection by Carter to the comments at issue, "we must determine whether there is an error that has not been affirmatively waived, is clear and obvious, affects the defendant's substantial rights, and seriously affects the fairness, integrity or public reputation of the judicial proceedings." Id. (citation and punctuation omitted; emphasis omitted and supplied). "Satisfying all four prongs of [the plain error test] is difficult, as it should be." State v. Kelly , 290 Ga. 29, 33 (2) (a), 718 S.E.2d 232 (2011) (citation and punctuation omitted).

Here, both the trial court's restatement of what the victim had testified to—"Ma'am, you were in the room"—and its immediately...