Patrick Booker v. State

• Court: Court of Appeals of Georgia
• Decided: June 13, 2013
• Docket: A13A0812
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., MILLER, and RAY, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

June 13, 2013

In the Court of Appeals of Georgia A13A0812. BOOKER v. THE STATE.

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 gun shots in their

mobile home. According to the girlfriend, they then saw four armed men coming

down the hallway towards 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

1 Two of the other robbers involved in the home invasion were tried separately from Booker and were convicted of multiple offenses, including malice murder and armed robbery. See Butler v. State, 290 Ga. 412 (721 SE2d 876) (2012).

2 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.

The 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 gun shots. 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,

3 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.

4 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. A hollow-point .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

S.Ct. 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

5 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). However, “[a] ruling

by the court on a point of law is not an expression of opinion[, and] neither are

remarks by the court explaining the court’s rulings.” (Punctuation and footnotes

omitted.) Rogers v. State, 294 Ga. App. 195, 196 (1) (670 SE2d 106) (2008).

The trial court’s explanation of the rule of sequestration clearly was not a

prohibited expression of opinion. The explanation was not a comment on the

credibility of any of the witnesses and did not suggest that any given witness had

violated the rule. Rather, it was a neutral explanation of the rule of sequestration that

6 did not favor either party, and, in this respect, the trial court specifically stated that

the court was “requiring . . . both counsel to make sure that your witnesses stay

outside the courtroom until they are called.” (Emphasis supplied.) Accordingly,

OCGA § 17-8-57 was not violated in this case. See Watson v. State, 278 Ga. 763, 769

(4) (604 SE2d 804) (2004) (charge to jury on rule of sequestration did not violate

OCGA § 17-8-57); Rogers, 294 Ga. App. at 196 (1) (same).

2. Booker also argues that the trial court committed reversible error in its jury

charge on malice murder and felony murder 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 on those counts. We disagree.

Because Booker did not object to the jury charge regarding malice murder and

felony murder, we review the charge only for plain error. See OCGA § 17-8-58 (b);

Kegler v. State, 317 Ga. App. 427, 434 (3) (731 SE2d 111) (2012).

Reversal based on plain error is authorized if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Satisfying all four prongs of this standard is difficult, as it should be.

7 (Citations and punctuation omitted.) Jackson v. State, 316 Ga. App. 588, 595-596 (5)

(b) (730 SE2d 69) (2012). See White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012);

State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011).

Regardless of whether any of the other prongs were satisfied, there is no plain

error because Booker cannot demonstrate that the alleged error in the jury charge

likely affected the outcome of the proceedings. Booker was not convicted of either

malice murder or felony murder, and thus cannot show that the alleged error in the

jury charge pertaining to those offenses harmed him in any manner whatsoever. See

Knox v. State, 290 Ga. App. 49, 54 (3) (658 SE2d 819) (2008) (an error in jury charge

was harmless where charge related to offense of which defendant was acquitted);

Hurston v. State, 278 Ga. App. 472, 475 (2) (629 SE2d 18) (2006) (error rendered

harmless where jury was unable to reach a verdict on the counts of the indictment that

would have been affected by the error).

3. Booker asserts that his trial counsel rendered ineffective assistance for

failing to object when the trial court explained the rule of sequestration to the jury and

when the trial court charged the jury on malice murder and felony murder. We

disagree.

8 To prevail on a claim of ineffective assistance of counsel under the test

enunciated in Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80

LE2d 674) (1984), “[Booker] must prove both that his trial counsel’s performance

was deficient and that there is a reasonable probability that the trial result would have

been different if not for the deficient performance.” Johnson v. State, 281 Ga. 770,

771 (2) (642 SE2d 827) (2007). If Booker cannot establish one of the prongs of the

Strickland test, he cannot prevail on his claim of ineffective assistance, and we need

not examine the other prong. Id. at 771-772 (2).

As discussed supra in Division 1, the trial court’s explanation to the jury of the

rule of sequestration was not a prohibited expression of opinion, and, therefore, any

objection would have been meritless. It follows that the trial counsel’s failure to

object did not constitute deficient performance and cannot support an ineffective

assistance claim. See Henry v. State, 279 Ga. 615, 617 (3) (619 SE2d 609) (2005)

(“Failure to make a meritless objection cannot be evidence of ineffective assistance.”)

(citation and punctuation omitted).

As discussed supra in Division 2, any alleged error in the trial court’s charge

on malice murder and felony murder did not affect the outcome of the proceedings

because Booker was not convicted of either offense. For the same reason, Booker

9 cannot establish prejudice for his trial counsel’s failure to object to the jury charge

and thus cannot prevail on his claim of ineffective assistance.

Judgment affirmed. Miller and Ray, JJ., concur.