Gardiner v. State

444 S.E.2d 300, 264 Ga. 329, 94 Fulton County D. Rep. 2048, 1994 Ga. LEXIS 459
CourtSupreme Court of Georgia
DecidedJune 13, 1994
DocketS94A0285; S94A0286; S94A0287
StatusPublished
Cited by30 cases

This text of 444 S.E.2d 300 (Gardiner 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
Gardiner v. State, 444 S.E.2d 300, 264 Ga. 329, 94 Fulton County D. Rep. 2048, 1994 Ga. LEXIS 459 (Ga. 1994).

Opinion

Thompson, Justice.

Kenneth Eric Gardiner, Dominic Brian Lucci and Mark Jason [330]*330Jones were jointly indicted, tried and found guilty of malice murder in the shooting death of Stanley Jackson, and of possession of a firearm in the commission of a felony.1

1. Each defendant challenges the sufficiency of the evidence. The three defendants were Army servicemen stationed at Fort Stewart, Georgia. Earlier on the day of the shooting, Jones approached a fellow serviceperson on base and asked to borrow certain heavy duty gear used for military maneuvers. She declined. They went on to discuss Jones’ plans for the weekend. He told her that he was going to Savannah that night because “he had somebody that he was going to shoot.” When asked who, he replied, “I got a black guy up there I got to get.” She urged him to avoid trouble and warned him of the possibility of getting caught. He responded, “[t]he object is to not get caught.”

Shortly after 10:00 p.m. that night, an eyewitness to the shooting heard rapidly repeating gunfire and observed a black, 1992 Chevrolet Cavalier automobile come to a screeching halt at the intersection of East Broad and 33rd Street in Savannah. He observed two Caucasian men, later identified by him as defendants Gardiner and Jones, leaning out of the front and rear passenger windows firing guns. The car then sped away. A third person was driving. The body of the victim was found lying in the intersection. He died as a result of multiple gunshot wounds inflicted by a high-powered weapon such as an AK-47.

Within minutes of the shooting, a police officer in the vicinity was dispatched to the scene. As he approached the area, a black car turned onto East Broad ahead of the police vehicle and proceeded toward the crime scene. The two vehicles stopped at the perimeter of the crime scene, whereupon Jones exited the black car, approached the officer and asked for directions to Club Asia. Two men remained in the car. According to the officer, they were acting “very strange” and “fumbling around” as if “they were hiding something.”

The three defendants were observed together by various other witnesses in the vicinity and at the time of the shooting. Between 9:45 and 10:30 p.m. they were denied admission to a nightclub in Savannah because Jones was underage. Between 10:00 and 11:00 p.m. they approached a uniformed off-duty police officer working security at a [331]*331nearby supermarket and asked directions to Club Asia. One of the defendants advised the officer to “check into” a shooting which had just taken place down the street.

They approached another officer outside the local police barracks and again asked directions to Club Asia. This officer was in the process of escorting the eyewitness into the station for questioning. As the suspects drove off, the witness informed the officer, “That’s the car that was over on 33rd Street. . . That’s them . . . You’re fixing to let them get away.” The witness was taken to the Club Asia parking lot where he identified the Chevrolet Cavalier as the car occupied by the shooters. The three defendants were apprehended together in the club.

While being questioned on the night of the shooting, Jones inquired about the condition of any victims and told the investigating officer, “if I [had] shot them they’d be dead.”

While in custody, Jones asked his cellmate, “What if [we were] riding in the same vehicle . . . and I take a gun . . . I’m gonna scare this guy, and point at his feet . . . and if the bullet ricochet[s] and hit[s] them, is that murder or is that an accident?”

Fellow serviceman testified that Gardiner and Lucci were preoccupied with a fantasy role-playing game called Dungeons and Dragons, in which a team of assassins plot to kill people. Lucci professed to be a weapons expert and kept six or seven throwing knives in his car. He would often drive a black Chevrolet Cavalier which belonged to a friend. Gardiner owned such a car. Upon learning that a colleague on base was listed as a witness for the state, Lucci warned him: “Well, what I’m going through right now, you don’t know what might happen to you or your family.”

The evidence against Lucci was circumstantial.2 The eyewitness testified that three perpetrators were involved. Gardiner and Jones were identified as the shooters and a third unidentified person was the driver of the black car. The three defendants were seen together by various witnesses in close proximity to, and within a short period of time of the shooting. Lucci was identified in the company of Gar-diner and Jones at the first nightclub, by the officer at the supermarket, by the officer at the police station, and finally at Club Asia. The proved facts were consistent with Lucci’s guilt and inconsistent with any reasonable theory of innocence.

The evidence against Gardiner and Jones was both direct and cir[332]*332cumstantial. The jury was authorized under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to find all three defendants guilty beyond a reasonable doubt of the offenses for which they were convicted. Defendants’ motions for directed verdicts of acquittal were properly denied.

2. Defendants assert that the trial court erred in refusing to consider the post-verdict affidavits of several jurors offered to demonstrate instances of alleged juror misconduct during the course of the trial.

The general rule is that “affidavits of jurors may be taken to sustain but not to impeach their verdict.” OCGA § 17-9-41. Exceptions have been carved:

where extrajudicial and prejudicial information has been brought to the jury’s attention improperly, or where non-jurors have interfered with the jury’s deliberations. See, e.g., Hall v. State, 259 Ga. 412 (3) (383 SE2d 128) (1989) and cases cited therein.

Spencer v. State, 260 Ga. 640, 643 (3) (398 SE2d 179) (1990).

The jurors’ affidavits advance the complaints that: (1) Juror Golden commented on the guilt of the defendants from the outset of the trial contrary to the court’s instructions; (2) juror Golden was personally familiar with family members of the victim and with certain witnesses and conversed during the trial with the victim’s father who later testified as a witness for the prosecution; (3) certain jurors did not understand instructions regarding reasonable doubt; (4) certain jurors had concerns about their personal safety and the possibility of racial unrest in the community in the event of an acquittal; (5) certain jurors were concerned about the length of the trial and therefore were not impartial; and (6) juror Cooper, an attorney, provided legal information which unfairly influenced other jurors.

The trial court was notified of juror Golden’s conduct prior to the commencement of deliberations. After an inquiry in the presence of counsel, defendants were offered an additional peremptory strike which they exercised to remove juror Golden and substitute an alternate. Any prejudice to defendants with respect to this juror’s conduct was cured with approval of all counsel.

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Bluebook (online)
444 S.E.2d 300, 264 Ga. 329, 94 Fulton County D. Rep. 2048, 1994 Ga. LEXIS 459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gardiner-v-state-ga-1994.