Booker v. State

744 S.E.2d 429, 322 Ga. App. 257, 2013 Fulton County D. Rep. 1906, 2013 WL 2501769, 2013 Ga. App. LEXIS 487
CourtCourt of Appeals of Georgia
DecidedJune 13, 2013
DocketA13A0812
StatusPublished
Cited by15 cases

This text of 744 S.E.2d 429 (Booker v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Booker v. State, 744 S.E.2d 429, 322 Ga. App. 257, 2013 Fulton County D. Rep. 1906, 2013 WL 2501769, 2013 Ga. App. LEXIS 487 (Ga. Ct. App. 2013).

Opinion

BARNES, Presiding Judge.

This is a home invasion case in which the jury found Patrick Antwon Booker guilty of burglary, armed robbery, two counts of aggravated assault, kidnapping, two counts of possession of a firearm during the commission of a crime, and possession of a firearm by a first offender probationer. The jury acquitted Booker of several offenses, including malice murder, and the trial court declared a mistrial on a felony murder charge after the jury was unable to reach a verdict on that count. The trial court subsequently denied Booker’s motion for new trial. On appeal, Booker contends that the trial court impermissibly bolstered the credibility of the State’s witnesses by explaining the rule of sequestration to the jury. Booker further contends that the trial court’s jury charge on malice murder and felony murder was improper because the court instructed the jury on how to enter a verdict of guilty without also instructing them on how to enter a verdict of not guilty. Lastly, Booker contends that his trial counsel rendered ineffective assistance for failing to object to the aforementioned alleged errors by the trial court. For the reasons discussed below, we conclude that Booker’s contentions are without merit and therefore affirm.1

Following a criminal conviction, we view the evidence in the light most favorable to support the jury’s verdict. See Bryan v. State, 271 Ga.App. 60(1) (608 SE2d 648) (2004). So viewed, the evidence showed that on September 24, 2008, at approximately 2:00 a.m., a home invasion occurred at a mobile home in Columbia County. There were three victims of the home invasion — a man who died during the incident (the “decedent”), his girlfriend, and their infant son.

The home invasion transpired as follows. The decedent and his girlfriend awoke when they heard the sound of glass breaking followed by gunshots in their mobile home. According to the girlfriend, they then saw four armed men coming down the hallway toward them. The men demanded money, and when the decedent initially said that he had none, one of the men put his handgun in the mouth of the infant and threatened to kill the infant and the decedent’s girlfriend. One of the men also struck the girlfriend in the head with his handgun.

[258]*258The decedent ultimately told the robbers that he had money over at his cousin’s house, and the decedent’s girlfriend offered to take the robbers there to retrieve it. Three of the robbers followed the girlfriend, who was holding her infant son, out the front door of the mobile home. Two of the robbers then went back inside the mobile home, while the third robber held a gun to the back of the girlfriend’s head as she walked toward another home in the trailer park. However, the third robber eventually abandoned the girlfriend and ran back to the decedent’s mobile home. At that point, the girlfriend began running with her infant through the trailer park to find help, and as she ran, she heard the decedent yelling as well as several gunshots. The girlfriend ran to a trailer where she knew the occupants, and they called 911 for her.

The police quickly responded to the scene. The decedent had sustained multiple gunshot wounds and was found unresponsive on the floor of the mobile home. He was rushed to the hospital, but he never regained consciousness and died from his wounds. Witnesses in the trailer park told the police that, after the gunshots were fired, two of the robbers fled from the scene in a red or burgundy Chevrolet Camaro, and a be-on-the-lookout (“BOLO”) was issued for the vehicle at approximately 2:20 a.m.

Within minutes, a patrol officer saw a Camaro matching the description given in the BOLO at a gasoline station. The Camaro, which had a male driver and passenger, pulled out of the station, and the officer subsequently stopped the vehicle at approximately 2:37 a.m. about 4.5 miles from the decedent’s mobile home. The driver was identified as Booker, who was arrested at that point for certain motor vehicle-related offenses. The passenger was arrested after marijuana was found on his person during a pat-down search conducted as part of the stop.

After Booker and his passenger were arrested, they along with two other suspects were taken to the police department, where one-on-one “show-up” identifications were conducted with the decedent’s girlfriend at approximately 5:25 a.m. When the girlfriend saw Booker, she immediately dropped to her knees, began to sob, and identified him as one of the robbers in the mobile home. She later confirmed that Booker was one of the robbers during her testimony at trial. In addition to identifying Booker, the girlfriend identified the passenger in the Camaro as one of the robbers, as well as one of the other suspects presented during the “show-up” procedure.

The police obtained a search warrant for the Camaro, and the officers who conducted the search found a glove in the vehicle that matched a glove found at the decedent’s mobile home. Ahollow-point [259]*259.380-caliber R&P cartridge also was found in the Camaro that matched two cartridges found at the mobile home.

After being advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966), Booker told an investigator that he had borrowed the Camaro and gone with his passenger to visit some women but had gotten lost. He denied having any involvement in the home invasion. However, when the investigator later re-interviewed Booker, he admitted to driving other armed men to the trailer park, but denied getting out of the Camaro during the home invasion.

1. Booker argues that the trial court erred by sua sponte instructing the jury on the rule of sequestration. After counsel had invoked the rule of sequestration and before the State’s first witness was sworn and began to testify, the trial court explained to the jury:

Ladies and gentlemen, the Rule of Sequestration has been invoked and what that rule requires is that the witnesses remain outside the presence of the courtroom while the testimony is given. It also requires that once a witness testify they not go out and tell the other witnesses what was said so there won’t be any comparison of the stories. I’m requiring on both counsel to make sure your witnesses stay outside the courtroom until they are called. . . .

According to Booker, the trial court’s explanation to the jury was an impermissible expression of opinion that bolstered the credibility of the State’s witnesses and constituted reversible error under OCGA § 17-8-57. Booker’s claim is without merit.

“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.” OCGA § 17-8-57. Even if defense counsel fails to raise an objection, if the trial court violates this statutory provision, we are “required to order a new trial, and there can be no finding of harmless error.” (Footnotes omitted.) Sauerwein v. State, 280 Ga. 438, 439 (2) (629 SE2d 235) (2006). See State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010).

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Bluebook (online)
744 S.E.2d 429, 322 Ga. App. 257, 2013 Fulton County D. Rep. 1906, 2013 WL 2501769, 2013 Ga. App. LEXIS 487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/booker-v-state-gactapp-2013.