Doyle v. State

733 S.E.2d 290, 291 Ga. 729, 2012 Fulton County D. Rep. 3162, 2012 WL 4857195, 2012 Ga. LEXIS 781
CourtSupreme Court of Georgia
DecidedOctober 15, 2012
DocketS12A1036
StatusPublished
Cited by12 cases

This text of 733 S.E.2d 290 (Doyle 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
Doyle v. State, 733 S.E.2d 290, 291 Ga. 729, 2012 Fulton County D. Rep. 3162, 2012 WL 4857195, 2012 Ga. LEXIS 781 (Ga. 2012).

Opinion

Thompson, Presiding Justice.

Appellant Devon Sharif Doyle was convicted and sentenced for malice murder, several counts of aggravated assault, and possession of a firearm during the commission of a crime.1 He appeals, asserting, inter alia, trial counsel was ineffective in failing to object to prosecutorial misconduct. Finding no error, we affirm.

1. Viewing the evidence in the light most favorable to the verdict, we find the following: The victims, who were college students, were attending a return-to-college party at a house in Savannah when a small group of individuals, including appellant’s 14-year-old brother, [730]*730Tavarus, crashed the party. Tensions rose between the college students and the intruders. The students asked the intruders to leave, and they did so, only to return a short time later. An altercation ensued, and the students forced the intruders outside. At that point, appellant’s ex-girlfriend telephoned appellant and told him that his brother had been in a fight at the house. Appellant drove to the party and approached the students outside of the house while carrying a revolver. As the students retreated into the house, appellant, Tavarus, and the other intruders followed them, and Tavarus threw a chair at one of the partygoers. The students tried to shut the front door, but the intruders kept pushing and kicking against it. Then appellant fired his revolver at and through the door four times. Three of the students were wounded, one of them fatally. Tavarus identified his brother as the shooter; so did his ex-girlfriend.2 Other witnesses informed police that the shooter was wearing a red shirt and plaid pants. Police seized a red shirt, plaid pants, and a holster (which had been used to carry a revolver) from appellant’s room.

The evidence was sufficient to enable any rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant testified on direct examination as follows:

A. When I got out of the car, me and Tavarus’s friends was going up to the door. Tavarus went back in the car and grabbed the gun and followed us up to the door. . . . Not too long after that Tavarus hit somebody with a chair. After that they ran in the house and closed the door. Tavarus kicked the door. I pushed the door. Neither time did the door open. . . . That’s when Tavarus told me Devon, get out of the way. . . . In other words, he was saying he’s about to shoot. So when I backed up from the porch, I seen Tavarus put four shots in the front door.
Q. Is this the first time you’ve talked about this?
A. Yes, it is.
Q. Why didn’t you say anything before?
[731]*731A. For my brother’s safety. Going to school, he was doing a lot. I really ain’t want to go around there and tell on him because he can’t stand. I wouldn’t put that much pressure on him. He couldn’t stand it emotionally. He couldn’t stand it physically. He can’t stand it at all. So I just kept my mouth closed about the whole thing.

On cross-examination, the prosecutor questioned appellant about his failure to previously provide his version of events:

Q. And you’ve never told anybody this before.
A. Never told.
Q. Not a soul.
A. Never told.
Q. Not a soul. I’m asking you that.
A. Nobody.
Q. Not your mama.
A. Nobody.
Q. Not your brothers.
A. Nobody.
Q. Not Tavarus.
A. Nobody.
Q. Not your girlfriend.
A. Nobody.
Q. And we’re the first to hear this after you’ve heard all the evidence. This is your story.
A. Yeah.

Based on this colloquy, the prosecutor argued in closing:

He said I told no one. Don’t you think for a year and a half he would have told the one person that he didn’t do this would have been his attorney? Don’t you think his attorney would have built a case around going after Tavarus? That’s common sense. But not even him. [Defense counsel] built his case thinking there’s a weakness in the forensic. But we had a response for that. And all of a sudden his client takes that stand and says oh, I was there. The whole thing was that his client wasn’t there from the questioning of the State’s witnesses. And then it changes. What we call a “Hail Mary” pass. It’s call[ed] desperation____And you think it’s going to take that man right there a year and a half not to tell somebody, his family members, that I didn’t do it. I told nobody. All of a sudden at the end of the trial I’m doing an [732]*732about-face. I really didn’t — I was there. I really didn’t do it. . . . This man has — he’s hoping that none of you have common sense and don’t see he’s lying. And to lose a case on a lie would be tragic. Because that’s what he’s done before you today is lie And, you know, what got me on the second statement when [appellant’s ex-girlfriend] said I’m not changing my story. And she kept saying repeatedly I feel better now, I feel better now, I can sleep at night. That’s sincerity. That’s the truth. . . . And he did a “Hail Mary” pass by testifying. Desperation defense. Because if his attorney, as I told you, knew about it, he would have prepared for it. But he didn’t. Most of the closing [argument] he did was about the forensic again.

Appellant asserts the prosecution committed prosecutorial misconduct by questioning him about his post-arrest silence, commenting upon his post-arrest silence in closing argument, and expressing his personal opinion as to the mendacity of appellant and the veracity of his ex-girlfriend when she made the statement to police identifying appellant as the shooter. However, appellant’s trial counsel did not lodge an objection to the prosecutor’s questions or comments. Trial counsel’s failure to do so precludes our consideration of appellant’s assertions. Allen v. State, 272 Ga. 513, 515 (3) (530 SE2d 186) (2000). See also Gates v. State, 252 Ga. App. 20, 22 (555 SE2d 494) (2001) (contemporaneous objection rule cannot be skirted by calling alleged errors prosecutorial misconduct).

3. Next, appellant posits that trial counsel rendered ineffective assistance by failing to object to the prosecutorial misconduct alleged in Division 2. For appellant to succeed on this claim, he “must show that counsel’s performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

At the hearing on appellant’s motion for new trial, appellant’s trial counsel was not asked about his failure to object to each and every instance of alleged prosecutorial misconduct.

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Cite This Page — Counsel Stack

Bluebook (online)
733 S.E.2d 290, 291 Ga. 729, 2012 Fulton County D. Rep. 3162, 2012 WL 4857195, 2012 Ga. LEXIS 781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doyle-v-state-ga-2012.