Dockery v. The State

287 Ga. 275

695 S.E.2d 599

DOCKERYv.The STATE.

No. S10A0326.

Supreme Court of Georgia.

June 7, 2010.

COPYRIGHT MATERIAL OMITTED

Glynn R. Stepp, Lawrenceville, for appellant.

Daniel J. Porter, District Attorney, Sabrina Nizamuddin, Assistant District Attorney, Thurbert E. Baker, Attorney General, Reggie A. Lampkin, Assistant Attorney General, for appellee.

HUNSTEIN, Chief Justice.

Appellant Jeremy Dockery appeals his conviction for murder and related charges arising from a June 2005 shooting, which killed Kareem Nicholson and injured Selena Golden. Finding no error, we affirm.¹

1. Construed most strongly in favor of the verdict, the evidence adduced at trial established as follows. On the night of the crimes, appellant and Lamont Seals encountered Brandon Hosch at a Gwinnett County sports bar. An altercation ensued between Seals and Hosch, who had previously been involved in a fight at another nightclub, and Seals threatened to kill Hosch. The men were escorted out of the sports bar, and appellant and Seals left in a white Malibu belonging to appellant's girlfriend. After going home to retrieve pistols, appellant and Seals drove to a gas station across the street from the sports bar and spotted Hosch there. They got out of the car and opened fire in Hosch's direction but missed their mark, instead hitting victims Nicholson and Golden. Appellant and Seals then returned to the car and sped away. Although Golden survived, Nicholson died from gunshot wounds to the head and chest. The white Malibu was found hours later in a parking lot less than a mile from the crime scene.

In the aftermath of the crime, victim Golden and three other eyewitnesses identified appellant from a photo lineup as having been the shooter. At trial, all four of these witnesses confirmed their prior identification and testified that appellant was the perpetrator; a fifth eyewitness also testified at trial that appellant was the shooter. Another witness, who was incarcerated with appellant in the months after the shooting, testified that appellant had described to him the crime and the events leading up to it and boasted that the State lacked sufficient evidence to convict him. In addition, Seals, who was called as a witness for the State under a grant of testimonial immunity corroborated various details of the night of the crimes and testified specifically that it was appellant who actually shot the victims.

The evidence as set forth above was sufficient to enable a rational trier of fact to find appellant guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Despite appellant's assertions as to various discrepancies in witness testimony, “the appellate courts do not resolve conflicts in trial testimony nor do they weigh the evidence on appeal. [Cits.]” Willis v. State, 263 Ga. 597, 598(1), 436 S.E.2d 204 (1993).

2. The trial court did not abuse its discretion in declining to strike for cause a prospective juror whose native language was Spanish. See Abdullah v. State, 284 Ga. 399(2), 667 S.E.2d 584 (2008) (decision to strike juror for cause reviewed under abuse of discretion standard). Though the juror expressed concern that he might not understand legal terminology, he also testified that he had lived in America for 22 years, demonstrated his ability to speak and understand English by his responses in voir dire, and affirmed that he believed he could be a fair and impartial juror. See id. (no abuse of discretion where trial court declined to strike juror whose speech and comprehension were good). Compare Sears v. State, 268 Ga. 759(7), 493 S.E.2d 180 (1997) (trial court properly excused prospective juror who exhibited difficulty understanding and speaking English). This enumeration is thus without merit.

3. The trial court likewise did not err by excepting the State's lead investigator, Detective Steven Shaw, from the rule of sequestration. It is well within the trial court's discretion to permit a witness to remain in the courtroom despite invocation of the rule of sequestration where the State shows his presence is necessary for the orderly presentation of evidence. Thorpe v. State, 285 Ga. 604(2), 678 S.E.2d 913 (2009). Given the volume of testimony and evidence offered at trial and Detective Shaw's significant role in the investigation, the trial court did not abuse its discretion by allowing him to remain in the courtroom. See id.

4. Appellant contends the trial court erred by allowing certain exhibits to go out with the jury during deliberations in violation of the continuing witness rule. See generally Davis v. State, 285 Ga. 343(8), 676 S.E.2d 215 (2009). See also Milich, Georgia Rules of Evidence (2nd ed.), § 19.8, pp. 433-434 (“if the writing is little more than the reduction of or substitute for the person's oral statements, then the writing does not go out with the jury”). The four exhibits complained of were pre-printed forms filled out by each of the four eyewitnesses who testified to having identified appellant as the shooter from a pretrial photo lineup. The forms contain the following, limited information: the witness' name and signature, the number of the photograph the witness selected from the lineup, the date and time of the selection, and the name of the detective who conducted the lineup. ² Unlike the documents in cases such as Flournoy v. State, 266 Ga. 618, 619-620, 469 S.E.2d 195 (1996) (photo lineup statement reflected that the witness “ positively identified photo # 5 as being the person who committed the offense of murder ” with additional handwritten note stating “ 90% as shooter ”) and Parks v. State, 199 Ga.App. 736, 738(2), 406 S.E.2d 229 (1991) (finding harmless the submission to the jury of photo identification sheet containing comment that “ (i)t has to be # 2 because the mustache and lips matched the robber ”), no additional information was added to the challenged documents in this case. We thus conclude under these circumstances that, in each instance, “[t]he photographic lineup file was not a testimonial account of the [witness'] identification of the appellant but was documentary evidence of the event itself.” Morrow v. State, 166 Ga.App. 883, 884(1), 305 S.E.2d 626 (1983). See also Kenney v. State, 196 Ga.App. 776(2), 397 S.E.2d 131 (1990) (no continuing witness rule violation where printed lineup form contained instructions concerning the procedure, the photo selected by the witness and the signatures of the witness and police officer). Accordingly, the admission of these exhibits did not violate the continuing witness rule.

5. Appellant contends that trial counsel was ineffective in four respects. In order to establish ineffective assistance of counsel, the defendant must show that counsel's performance was professionally deficient and that but for such deficient performance there is a reasonable probability that the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Wesley v. State, 286 Ga. 355(3), 689 S.E.2d 280 (2010). Decisions of counsel made in furtherance of reasonable trial strategy do not constitute deficient performance. Upton v. Parks, 284 Ga. 254(2), 664 S.E.2d 196 (2008). A trial court's factual findings on an ineffectiveness claim will be upheld unless clearly erroneous; its legal conclusions are reviewed de novo. King v. State, 282 Ga. 505(2), 651 S.E.2d 711 (2007).

(a) Appellant first claims that trial counsel was ineffective for failing to request a jury charge on “the violation of the rule of sequestration” in light of the trial court's decision to allow Detective Shaw to remain in the courtroom throughout the presentation of the State's case. However, as we held in Division 3, supra, there was no violation of the rule of sequestration in regard to Detective Shaw. To the extent this enumeration can be read as asserting counsel's error in failing to request the trial court to charge the jury that, in determining the weight and credibility of Detective Shaw's testimony, it may consider that he heard the testimony of other witnesses prior to testifying himself, see Morgan v. State, 287 Ga.App. 569(3), 651 S.E.2d 833 (2007), even assuming that trial counsel's failure to request such a charge constituted deficient performance, appellant cannot demonstrate prejudice in light of the overwhelming evidence substantiating his guilt. ...