Danenberg v. State

729 S.E.2d 315, 291 Ga. 439, 2012 Fulton County D. Rep. 1983, 2012 WL 2369412, 2012 Ga. LEXIS 626
CourtSupreme Court of Georgia
DecidedJune 25, 2012
DocketS12A0524
StatusPublished
Cited by24 cases

This text of 729 S.E.2d 315 (Danenberg v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Danenberg v. State, 729 S.E.2d 315, 291 Ga. 439, 2012 Fulton County D. Rep. 1983, 2012 WL 2369412, 2012 Ga. LEXIS 626 (Ga. 2012).

Opinion

Benham, Justice.

In 2008, a Jones County jury found appellant Robert Danenberg guilty of malice murder arising out of the 1988 fatal shooting of Deborah Penland Lamb.1 He now appeals, asserting that several rulings made by the trial court constitute reversible error.

[440]*4401. The State presented evidence that appellant was estranged from his wife in 1988 and that she took their infant child with her to Jones County to stay with friends, Carey and Deborah Penland Lamb. Appellant drove his mother’s red Suzuki Samurai to the Jones County home of the Lambs in November 1988 to visit his child. While there, he shot Deborah Lamb multiple times in front of her three- and five-year-old sons while she was sitting in a chair and holding Danenberg’s infant son. The medical examiner who performed the autopsy testified that Mrs. Lamb died as a result of the gunshot wounds to her head, with a gunshot wound to her chest a secondary cause of death. A person identifying himself as Bob Danenberg called for emergency help and told responding personnel that he had shot the victim. Wipings of appellant’s hands tested positive for gunshot residue. The evidence was sufficient to authorize the jury to find appellant guilty beyond a reasonable doubt of the malice murder of Deborah Lamb. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends the trial court wrongfully denied him his constitutional right to represent himself at trial. See Faretta v. California, 422 U. S. 806 (95 SC 2525, 45 LE2d 562) (1975); 1983 Ga. Const., Art. I, Sec. I, Par. XII. The pre-trial unequivocal declaration of a defendant that he wishes to represent himself must be followed by a hearing at which it is determined that the defendant knowingly and intelligently waives “the traditional benefits associated with the right to counsel.” Faretta v. California, supra, 422 U. S. at 835-836; Thaxton v. State, 260 Ga. 141 (2) (390 SE2d 841) (1990).

After excusing prospective jurors for lunch on November 13, 2008, the first day of voir dire in appellant’s trial, the trial court placed on the record its receipt of a communication from appellant in which the trial court was made aware of appellant’s desire to dismiss his counsel. In the handwritten note addressed to the trial judge, appellant informed the court that defense counsel were presenting an insanity defense against appellant’s “direct order” and that appellant [441]*441“wish[ed] to dismiss them and be given a little time to hire other lawyers or utilize a public defender or proceed pro se.” In a postscript, appellant notified the court that he would request “a little time and some subpoenas” if he proceeded pro se. The trial court noted that the note was dated as having been written at 10:00 a.m. that morning, one hour after jury selection had commenced. The trial court denied appellant’s motion, stating that a defendant must make an unequivocal assertion of his right to self-representation prior to trial. Inasmuch as appellant’s handwritten note sought to dismiss trial counsel and replace them with retained counsel, a public defender, or himself, appellant’s communication was not an unequivocal assertion of his right to represent himself. See id. See also Crutchfield v. State, 269 Ga. App. 69 (2) (603 SE2d 462) (2004); Hayes v. State, 203 Ga. App. 143 (2) (416 SE2d 347) (1992); Lynott v. State, 198 Ga. App. 688 (2) (402 SE2d 747) (1991). Appellant was not wrongfully denied his constitutional right to represent himself.

3. Appellant contends the trial court erred when it allowed the State to play for the jury videotapes of the 1988 interviews conducted by the Jones County sheriff’s investigator of the victim’s young children, ages three and five, two days after the victim was killed. Grown men at the time of appellant’s 2008 trial, the victim’s two sons testified. Mrs. Lamb’s younger son remembered nothing but Mr. Danenberg walking into and then exiting the house. The older son recalled that “Dale,” who was Mr. Danenberg’s estranged wife, and her infant son were living with the Lambs; that his mother was sitting in a chair while she bottle-fed the infant and talked on the phone; that his mother requested he look out the window and report what he saw; that he told her Dale was being chased around a vehicle; that Mr. Danenberg came into the house and pointed a pistol at his mother, said something, and fired the gun; and that he and his young brother found a place to hide under the couch cushions in the living room and then hid under the baby’s crib in a bedroom, where they were found by Dale and removed from the scene. The older son’s testimony was interspersed with his statement that he could not recall certain details. Defense counsel did not cross-examine either of the victim’s sons. Citing Manning v. State, 273 Ga. 744 (545 SE2d 914) (2001), the trial court admitted the videotapes after a foundation was laid through the testimony of the Jones County sheriff’s investigator who conducted the 1988 interviews. The trial court did not err. “A party may introduce a prior consistent statement of a forgetful witness where the witness testifies at trial and is subject to cross-examination.” Id. at 745. See also Williams v. State, 291 Ga. App. 279 [442]*442(2) (661 SE2d 658) (2008) (forgetful witness’s earlier statement to police admitted through the testimony of the officer who took the statement).

4. Appellant contends the trial court abused its discretion when it allowed a pharmacologist to be called as an expert witness for the State despite the fact that the State purportedly had violated OCGA § 17-16-4, the reciprocal discovery statute, by failing to list the pharmacologist as an expert witness and failing to provide defense counsel with a summary of the expert’s oral report. See OCGA § 17-16-4 (a) (4). The trial court recessed in order for defense counsel to interview the expert witness, after which defense counsel, the assistant district attorneys, and the trial court discussed the matter outside the presence of the jury. Appellant’s trial counsel agreed to the trial court’s suggestion that the State’s witness be treated as a rebuttal witness testifying out of order.2 Trial counsel’s affirmative withdrawal of the objection previously made returns the situation to one in which no objection was made (see Dyer v. State, 233 Ga. App. 770, 771 (505 SE2d 71) (1998)) and the failure to object at trial constitutes a waiver of appellant’s ability to raise the issue on appeal. See Powers v. State, 314 Ga. App. 733 (1) (a) (725 SE2d 848) (2012) (issue was waived when appellant withdrew his objection).

5. Appellant contends the trial court denied him his constitutional and statutory right to testify in his own defense (see Mobley v. State, 264 Ga. 854 (2) (452 SE2d 500) (1995)) when the trial court declined to reopen the evidence and allow appellant to testify. After the defense had rested and the trial court’s expert witness had testified, counsel for both parties agreed that the evidence was closed.

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Cite This Page — Counsel Stack

Bluebook (online)
729 S.E.2d 315, 291 Ga. 439, 2012 Fulton County D. Rep. 1983, 2012 WL 2369412, 2012 Ga. LEXIS 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/danenberg-v-state-ga-2012.