307 Ga. 96 FINAL COPY
S19A0721. POWELL v. THE STATE.
ELLINGTON, Justice.
Appellant Kenneth N. Powell was tried before a Dougherty
County jury and convicted of malice murder in the shooting death of
Lionel Turner.1 Appellant contends that the evidence was
insufficient to sustain his conviction, that the trial court erred in
1 Turner was killed on June 19, 1993. On August 26, 1993, Appellant and
Donny C. Mimbs were jointly indicted by a Dougherty County grand jury for malice murder (Count 1), felony murder predicated on aggravated assault by shooting Turner with a gun (Count 2), and aggravated assault by beating Turner with a chair (Count 3). Appellant was tried separately in a November 8 to 9, 1993, jury trial. The jury found Appellant guilty of malice murder only. On November 9, 1993, the trial court sentenced Appellant to serve life in prison. A motion for new trial was filed by trial counsel on November 22, 1993. Appellant, through new counsel, filed an extraordinary motion for new trial on July 8, 1997. Appellant represented therein that, although the motion for new trial was heard December 29, 1993, no order had been entered on the motion because no transcript of the motion for new trial proceeding existed. Appellant represented that the court reporter had “left the area” before transcribing the hearing. On September 19, 1997, the trial court granted new counsel’s motion to withdraw. More than 20 years later, on April 3, 2018, Appellant’s current counsel was appointed by the trial court. Appellant filed an amended motion for new trial on September 11, 2018. Following a hearing, the trial court entered its order denying the motion for new trial on November 15, 2018. Appellant’s timely appeal was docketed in this Court to the April 2019 term and submitted for decision on the briefs. instructing the jury, and that his trial counsel provided ineffective
assistance. For the reasons that follow, we find no merit in these
claims of error, and we affirm.
Viewed in a light most favorable to the verdict, the evidence at
trial showed the following. In mid-June 1993, Appellant’s cousin,
Tony Powell (“Powell”), was allegedly assaulted by Turner and
Stephon Davis. On June 19, Appellant and Donny Mimbs walked
around their neighborhood searching for Turner and Davis. A
witness testified that Appellant had “a problem” with Turner.
Appellant was carrying a gun in his hand and looked upset.
During their search, Appellant and Mimbs crossed paths with
Powell and two other men, who joined the group. Powell asked
Appellant to put the gun away, but Appellant refused. Appellant
told Powell that he was looking for Davis because Davis and Turner
had “jumped on” Powell.
When the group reached Davis’s girlfriend’s house, Appellant
told a resident to tell Davis that Appellant was “going to get him”
because “it wasn’t right how [Davis] did that night when they was
2 fighting.” After learning that Davis was not there, the group began
walking toward Powell’s aunt’s house. On the way, Appellant saw
Turner outside his grandmother’s house, standing on the porch.
Appellant began walking toward Turner, and Mimbs and Powell
followed.
Turner’s grandmother, who was on the porch with Turner,
testified that she saw three men approaching “like they were mad.”
Mimbs “reached and got the gun” from Appellant and shot Turner.
Turner’s grandmother ran into her house after the first shot. She
testified that, before she fled inside, she saw that Appellant and
Powell remained on the porch steps. Once inside, she heard three
more shots.
According to Powell, Mimbs went up onto the porch first.
Mimbs told Appellant “you ought to kill the S. O. B.,” and then
“snatch[ed]” the gun from Appellant. Mimbs shot Turner once and
then, after a struggle between the two, shot him a second time, after
which Turner collapsed. Mimbs fired a third shot at Turner’s hip
area. Appellant then took the gun back from Mimbs and shot Turner
3 in the knee, after which Mimbs grabbed a chair and began hitting
Turner in the back of the head. After the shooting, according to
Powell, he and Appellant “ran off separately.”
Another cousin of Powell’s, Larry Brown, was approximately
four houses away from the scene at the time of the shooting. He
testified that he saw Mimbs grab the gun from Appellant and fire
four shots. Brown saw Appellant “throw a chair.” Another witness
testified that, after hearing about the shooting, she accused
Appellant of shooting “that boy,” and Appellant responded, “yeah,”
adding that anyone who assaulted his cousin “needs to be dead.”
The testimony of the pathologist who performed Turner’s
autopsy showed that Turner suffered gunshot wounds to the chest,
abdomen, right buttocks, and right knee. According to the
pathologist, Turner bled to death. The pathologist agreed on cross-
examination that the wound to Turner’s chest, which passed
through both lungs and the aorta, would have caused death within
a minute. He also testified that, in reference to the gunshot to the
knee, “[i]f it contributed at all [to Turner’s death], it was a minor
4 factor.”
1. Appellant contends that the evidence was legally insufficient
to support his malice murder conviction because Mimbs is solely
responsible for Turner’s death. Appellant argues that, while
evidence showed that he shot Turner in the knee, the knee injury
was minor and Turner was already dead because his aorta had been
severed when Mimbs shot him in the chest. Further, Appellant
argues, he did not aid or abet Mimbs, who grabbed the gun out of
Appellant’s hands and then fatally shot Turner.
When evaluating the sufficiency of evidence, “the relevant
question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781,
61 LE2d 560) (1979) (Emphasis omitted.). Here, the evidence is
sufficient to show that Appellant was a party to the crime of malice
murder. See OCGA § 16-5-1 (a) (“A person commits the offense of
murder when he unlawfully and with malice aforethought, either
5 express or implied, causes the death of another human being.”);
OCGA § 16-2-20 (a) (“Every person concerned in the commission of
a crime is a party thereto and may be charged with and convicted of
commission of the crime.”).
In relevant part, a person is concerned in the commission of a
crime only if he “(3) Intentionally aids or abets in the commission of
the crime; or (4) Intentionally advises, encourages, hires, counsels,
or procures another to commit the crime.” OCGA § 16-2-20 (b) (3),
(4). Further, “a conviction as a party to a crime requires proof that
the defendant shared a common criminal intent with the principal
perpetrator of the crime.” Downey v. State, 298 Ga. 568, 569 (1) (783
SE2d 622) (2016) (citation and punctuation omitted). “While mere
presence at the scene of a crime is not sufficient evidence to convict
one of being a party to a crime, criminal intent may be inferred from
presence, companionship, and conduct before, during and after the
offense.” Navarrete v. State, 283 Ga. 156, 158 (1) (656 SE2d 814)
(2008) (citation and punctuation omitted).
The evidence showed that Appellant and Mimbs canvassed the
6 neighborhood together in search of Turner and Davis. Appellant was
openly carrying a gun, refused to put it away, and led the group to
the porch where Turner was shot to death. Even if Mimbs took the
gun and started shooting first, Appellant took the gun back and shot
Turner as well. Appellant, who believed that Turner had previously
assaulted Powell, thereafter acknowledged that he had shot Turner
and told the witness that anyone who had assaulted his cousin
needed “to be dead.” It may be reasonably inferred from the evidence
that, even though Mimbs fired the fatal shots, the shooting was a
common enterprise between Appellant and Mimbs in which
Appellant aided Mimbs through his active participation and in
which they shared in the criminal intent to kill Turner. It follows
that a rational trier of fact could have found beyond a reasonable
doubt that Appellant was a party to the crime of malice murder. See
Powell v. State, 291 Ga. 743, 745 (1) (733 SE2d 294) (2012) (evidence
was sufficient to support appellant’s murder conviction as a party to
the crime even assuming that appellant’s companion, and not the
appellant, fired the fatal shot, as they were engaged in a common
7 enterprise at the time of the shooting and it could be reasonably
inferred from the evidence that they shared a criminal intent);
Teasley v. State, 288 Ga. 468, 469 (704 SE2d 800) (2010) (that
appellant did not actually fire the gun that fatally wounded the
victim was immaterial to his conviction as a party to the crime of
malice murder).
2. Appellant contends that the trial court erred in failing to
instruct the jury on (a) causation in a homicide case, (b) the
respective responsibilities of the trial court and the jury, (c)
circumstantial evidence, and (d) venue. Although Appellant
reserved the right to object to the jury instructions as was customary
at the time of his 1993 trial,2 he was not relieved from the necessity
of requesting instructions other than “in those circumstances where
2 See White v. State, 243 Ga. 250, 251 (253 SE2d 694) (1979) (Holding
that “[w]here the trial court inquires whether there was objection [to the jury charges] and the defendant’s counsel states that he reserves the right to object in his motion for new trial or appeal, there is no waiver.”). Because Appellant’s trial was conducted before July 1, 2007, the trial court’s charge is not subject to OCGA § 17-8-58, which “changed the prior practice whereby counsel could generally reserve objections to the charge pending a motion for new trial or appeal.” State v. Kelly, 290 Ga. 29, 31 (1) (718 SE2d 232) (2011) (citation and punctuation omitted). 8 the omission is clearly harmful and erroneous as a matter of law in
that it fails to provide the jury with the proper guidelines for
determining guilt or innocence.” Johnson v. State, 253 Ga. 37, 38
(315 SE2d 871) (1984) (citation and punctuation omitted). See also
OCGA § 5-5-24 (b) (“In all cases, at the close of the evidence or at
such earlier time during the trial as the court reasonably directs,
any party may present to the court written requests that it instruct
the jury on the law as set forth therein. . . .”); Barrett v. State, 292
Ga. 160, 165-166 (2) (733 SE2d 304) (2012) (while appellant reserved
objections to the charge during his trial in 2005, he was not relieved
from the necessity of requesting instructions; the trial court did not
err in omitting the unrequested charge as the omission was not
clearly harmful as a matter of law). The only charge requested in
writing by Appellant concerned mere presence at the scene of a
crime.
(a) Appellant contends that the trial court erred in failing to
instruct the jury sua sponte on causation in a homicide case. That
standard, as Appellant correctly points out, is proximate cause. See
9 State v. Jackson, 287 Ga. 646, 648-649 (2) (697 SE2d 757) (2010).
The indictment, which the trial court read to the jurors and
which was provided to them during their deliberations, charged
Appellant with the offense of malice murder in that he “did
unlawfully and with malice aforethought cause the death of . . .
Turner . . . by shooting [him].” The trial court instructed the jury
that “a person commits murder when that person unlawfully and
with malice aforethought . . . causes the death of another human
being.” The court also thoroughly instructed the jury on the law of
parties to a crime. Considering the charge as a whole, the jury was
informed that, in order to convict, it was required to determine that
Appellant either caused or was a party in causing Turner’s death.
As the charge did not fail to provide the jury with the proper
guidelines for determining guilt or innocence, the trial court did not
err in failing to give a separate charge on causation in a homicide
case. See Whiting v. State, 296 Ga. 429, 430-431 (2) (768 SE2d 448)
(2015) (in the defendant’s felony murder trial, the charge as given
was sufficient to inform the jury that it was required to find that the
10 defendant caused or was a party in causing the victim’s death, and
the trial court did not err in failing to instruct the jury sua sponte
on the issue of proximate causation); Flournoy v. State, 294 Ga. 741,
746 (3) (755 SE2d 777) (2014) (trial court did not err in failing to
instruct the jury on proximate cause because its “instruction on
felony murder and party to a crime, which referenced the allegations
of the indictment, was sufficient to inform the jury that, in order to
convict, it had to determine [the defendant] caused or was a party in
the causing of [the victim’s] death”).
(b) Appellant claims that the trial court erred in failing to fully
instruct the jury on the respective responsibilities of the trial court
and the jury. During its final instruction, the trial court charged,
“[n]ow, you, as the jury in this case, will determine both the law and
the facts.” Appellant argues that the instruction given was
misleading and that the trial court was obligated to fully instruct
the jury that it was bound by the court’s instructions and was
required to apply the law given by the court.
The language charged by the trial court “was formerly in the
11 Suggested Pattern Jury Instructions [and] has since been replaced.”
Hampton v. State, 272 Ga. 284, 287 (7) (527 SE2d 872) (2000). See
Dasher v. State, 229 Ga. App. 41, 44 (3) (494 SE2d 192) (1997)
(Previously, “the Pattern Jury Instructions included a charge: ‘You
will determine both the law and the facts.’ This instruction was
replaced by a more accurate and complete instruction in January
1996[.]”). The instruction given was derived from the Georgia
Constitution of 1983, Art. I, Sec. I, Par. XI (a), which provides that
“the jury shall be the judges of the law and the facts.” See Hampton,
272 Ga. at 287 (7).3
The transcript also shows that, before closing argument, the
trial court instructed the jurors to keep their “minds clear” until they
heard counsels’ arguments and “the charge of the Court, so you will
know what the appropriate law is to apply to the facts that you find
3 See also State v. Freeman, 264 Ga. 276, 278 (444 SE2d 80) (1994) (acknowledging the “firmly established” interpretation of Ga. Const. of 1983, Art. I, Sec. I, Par. XI (a) that: “It is the province of the court to construe the law applicable in the trial of a criminal case, and of the jury to apply the law so construed to the facts in evidence. While the impaneled jurors are made absolutely and exclusively judges of the facts in the case, they are, in this sense only, judges of the law.” (citation omitted)). 12 from the testimony that was presented here.” During the final
instructions, the trial court also instructed the jury that the “court
cannot interpret the facts for you,” and that “[y]ou must make your
decision upon the facts as you find them,” but that the jury could,
during the course of deliberations, submit questions to the court
which “must concern the law that the Court has charged you on.”
The trial court’s charge, viewed as a whole, instructed the jury to
apply the law as given by the court to the facts of the case, and did
not fail to provide the jury with the proper guidelines for
determining guilt or innocence. See Wright v. State, 274 Ga. 730, 732
(2) (c) (559 SE2d 437) (2002) (It was not error to charge the jury:
“you will both determine the law and the facts.” (punctuation
omitted)); Hampton, 272 Ga. at 287 (7) (It was not error to charge
the jury: “You will determine both the law and the facts in this case.”
(punctuation omitted)).
(c) Appellant contends that the trial court erred in failing to
charge the jury on circumstantial evidence. Where, as here, the
State presents both direct and circumstantial evidence, a trial court
13 must instruct the jury on circumstantial evidence only if requested
by the defendant. See Sumlin v. State, 283 Ga. 264, 267 (3) (658
SE2d 596) (2008); Yarn v. State, 265 Ga. 787, 787 (1) (462 SE2d 359)
(1995). Appellant does not show that he requested a charge on
circumstantial evidence. Accordingly, the trial court’s failure to give
the charge was not erroneous as a matter of law, and given the
amount of direct evidence, the failure to charge on circumstantial
evidence was not clearly harmful either.
(d) Appellant further contends that the trial court erred in
failing to charge the jury on venue. We have urged, and continue to
urge, trial courts to give appropriate charges on venue. See, e.g.,
Thompson v. Brown, 288 Ga. 855, 858 (708 SE2d 270) (2011); Lynn
v. State, 275 Ga. 288, 290 (3) (565 SE2d 800) (2002). However,
“where venue is proven and the trial court charges the jury generally
on the law of reasonable doubt, it is not necessary for the court to
charge the jury that proof of venue is a material allegation of the
indictment.” Shahid v. State, 276 Ga. 543, 543-544 (2) (579 SE2d
724) (2003) (citation and punctuation omitted). Accord Harwell v.
14 State, 230 Ga. 480 (1) (197 SE2d 708) (1973). See also Lanham v.
State, 291 Ga. 625, 627 (3) (732 SE2d 72) (2012) (“[W]e have declined
to reverse a conviction and require a new trial based on the trial
court’s failure to sua sponte instruct the jury on venue.”). Here, the
State presented unrebutted evidence that Turner was shot and
killed in Dougherty County, where the case was tried. See OCGA §
17-2-2 (c) (“Criminal homicide shall be considered as having been
committed in the county in which the cause of death was inflicted. .
. .”). The trial court correctly charged the jury on reasonable doubt.
In instructing the jury on the offense of murder, the trial court
specified, among other things, that
[i]f after considering the testimony and evidence presented to you, together with the charge of the Court, you should find and believe beyond a reasonable doubt that the defendant did, in Dougherty County, Georgia, on or about the date alleged in the indictment, commit the offense of murder as alleged in Count 1, then you’d be authorized to find the defendant guilty.
(Emphasis supplied.) Accordingly, in the absence of a request, the
trial court’s failure to charge the jury on venue was not reversible
error. See Lanham, 291 Ga. at 627 (3); Shahid, 276 Ga. at 543-544
15 (2).
3. Appellant contends that trial counsel provided ineffective
assistance in failing to request jury instructions on (i) causation in
a homicide case, (ii) the respective responsibilities of the trial court
and jury, (iii) circumstantial evidence, (iv) venue, (v) Appellant’s
failure to testify, and (vi) the lesser offense of voluntary
manslaughter. To establish ineffective assistance of counsel, a
defendant must show that his trial counsel’s performance was
professionally deficient and that, but for such deficient performance,
there is a reasonable probability that the result of the trial would
have been different. See Strickland v. Washington, 466 U. S. 668,
695 (104 SCt 2052, 80 LE2d 674) (1984).
To satisfy the deficiency prong, a defendant must demonstrate
that his attorney “performed at trial in an objectively unreasonable
way considering all the circumstances and in the light of prevailing
professional norms.” Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d
637) (2013) (citation omitted). See also Strickland, 466 U. S. at 687-
688. This requires a defendant to overcome the strong presumption
16 that trial counsel’s performance was adequate. See Marshall v.
State, 297 Ga. 445, 448 (2) (774 SE2d 675) (2015). In assessing
prejudice, “[w]hen the asserted error of failure to charge is reached
indirectly through a claim of ineffective assistance of counsel the test
is whether, had the charge been requested, authorized, and given,
there is a reasonable probability it would have changed the outcome
of the trial.” Springs v. Seese, 274 Ga. 659, 661 (3) (558 SE2d 710)
(2002) (citations and emphasis omitted). See also Lee v. State, 281
Ga. 776, 777 (3) (642 SE2d 835) (2007) (same).
(a) Appellant cannot show that his counsel was ineffective in
failing to request jury instructions addressing (i) causation in a
homicide case, (ii) the respective responsibilities of the trial court
and jury, (iii) circumstantial evidence, and (iv) venue. Assuming
that trial counsel was deficient in failing to request these charges,
the omission of these charges did not fail to provide the jury with the
proper guidelines for determining guilt or innocence. See Division
2, supra. Considering the jury instructions as a whole as well as the
relevant evidence, Appellant cannot show that, had the charges been
17 requested, authorized, and given, there is a reasonable probability
they would have changed the outcome of the trial. See Butts v. State,
273 Ga. 760, 768 (18) (546 SE2d 472) (2001) (where trial court’s
instructions were adequate as given, appellant could not show
prejudice in trial counsel’s failure to request charge).
(b) Appellant, who did not testify at trial, claims that his trial
counsel was ineffective in failing to request an instruction informing
the jury that he was not required to take the stand and testify in his
defense, and that no adverse inference shall be drawn by the jury
from his failure to testify. The evidence that Appellant was a party
to Turner’s murder was strong, and the trial court instructed the
jury on the State’s burden of proof and the presumption of innocence.
Nor does Appellant point to any improper reference by the State to
his failure to testify. Pretermitting whether trial counsel’s
performance was deficient, we conclude that Appellant cannot
establish a reasonable likelihood that his counsel’s failure to request
the charge changed the outcome of the trial. See Mitchell v. State,
282 Ga. 416, 421 (6) (e) (651 SE2d 49) (2007) (in the absence of a
18 curative need for the charge, and in view of the overwhelming
evidence of appellant’s guilt, appellant was not prejudiced by his
counsel’s failure to request a charge on a defendant’s right not to
testify).
(c) Appellant also contends that his trial counsel was deficient
in failing to request a jury charge on the lesser offense of voluntary
manslaughter. See OCGA § 16-5-2 (a).4 The evidence showed that
Appellant was angry at Turner because of a fight involving Turner,
Davis, and Powell that occurred several days before the shooting.
However, that prior altercation would not support a charge on
voluntary manslaughter. See Smith v. State, 296 Ga. 731, 737 (3)
(770 SE2d 610) (2015) (Where prior altercation and fighting
4 OCGA § 16-5-2 (a) provides:
A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder. 19 involving defendant’s relatives occurred some 30 to 40 minutes
before defendant arrived at the scene of the shooting, the evidence
did not support a charge on voluntary manslaughter.). There is no
evidence that Appellant, upon his arrival at Turner’s grandmother’s
house, was provoked by Turner. Appellant argues that he was
nevertheless overwhelmed by the circumstances in that Mimbs
snatched his gun, and he saw Mimbs shoot Turner and hit Turner
with a chair. However, those are not circumstances that “would have
provoked a reasonable person to kill” Turner. Rigsby v. State, 306
Ga. 38, 43 (3) (829 SE2d 93) (2019) (citations omitted; emphasis in
original). See also Bailey v. State, 301 Ga. 476, 480 (IV) (801 SE2d
813) (2017) (we “evaluate the alleged provocation evidence with
respect to its impact on a reasonable person, putting aside any
peculiar response [the defendant] may have had”). Trial counsel was
not deficient for failing to request a charge on voluntary
manslaughter because there was no evidence to support the charge.
See Bryson v. Jackson, 299 Ga. 751, 755 (2) (d) (791 SE2d 43) (2016)
(trial counsel was not ineffective in failing to request a charge on
20 voluntary manslaughter where the charge was not supported by the
evidence).
(d) The effect of prejudice arising from trial counsel’s deficient
performance is viewed cumulatively. Schofield v. Holsey, 281 Ga.
809, 811 (II) n.1 (642 SE2d 56) (2007) (“[I]t is the prejudice arising
from ‘counsel’s errors’ that is constitutionally relevant, not that each
individual error by counsel should be considered in a vacuum.”
(citation and punctuation omitted)). For the reasons stated in
Division 3 (c), trial counsel was not deficient in failing to request a
charge on voluntary manslaughter. Assuming that trial counsel was
deficient in failing to request the jury charges addressed in Divisions
3 (a) and (b), the cumulative prejudice from the assumed deficiencies
is insufficient to show a reasonable probability that the result of the
trial would have been different in the absence of the alleged
deficiencies.
Judgment affirmed. All the Justices concur.
21 PETERSON, Justice, concurring.
The Georgia Constitution has long provided that “the jury shall
be the judges of the law and the facts.” Ga. Const. of 1983, Art. I,
22 Sec. I, Par. XI (a).5 Division 2 (b) of today’s opinion essentially
concludes that it was harmless to instruct a jury in this
constitutional language because the rest of the jury instructions
made it sufficiently clear that the Constitution’s language does not
mean what it appears to say. This seems strange.
But the Court’s opinion is a faithful application of case law that
has been consistent since at least 1940. See, e.g., Harris v. State, 190
Ga. 258, 260-264 (9 SE2d 183) (1940) (overruling inconsistent
opinions that interpreted the provision more broadly). And no party
has challenged that precedent as failing to apply the original public
meaning of the Georgia Constitution, much less explained whether
the principles that guide our constitutional interpretation would
even allow such a challenge at this late date. Compare Elliott v.
5 A version of this provision was in our first Constitution, a statute enacted in 1816, and then every Constitution since 1868. See Ga. Const. of 1777, Art. XLI (“The jury shall be judges of law, as well as of fact . . . but if all, or any of the jury, have any doubts concerning points of law, they shall apply to the bench, who shall each of them in rotation give their opinion.”); Acts of the General Assembly of the State of Georgia, passed in November and December, 1816, Vol. 1, 195; Ga. L. 1833, p. 207 § 16; Ga. Const. of 1868, Art. I, Sec. 19 (applying only to libel); Ga. Const. of 1877, Art. I, Sec. II, Par. I (applying to all criminal cases); Ga. Const. of 1945, Art. I, Sec. II, Par. I (same); Ga. Const. of 1976, Art. I, Sec. I, Par. VIII (same). 23 State, 305 Ga. 179, 182-184 (II) (A) (824 SE2d 265) (2019)
(constitutional provision carried forward from previous Constitution
presumed to carry with it the provision’s original public meaning)
with id. at 184-187 (II) (B) (constitutional provision carried forward
from previous Constitution presumed to carry with it our consistent
and definitive interpretation). Accordingly, I join the Court’s opinion
in full.
DECIDED OCTOBER 21, 2019. Murder. Dougherty Superior Court. Before Judge Lockette. Troy E. Golden, for appellant. Gregory W. Edwards, District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney
24 General, Paula K. Smith, Senior Assistant Attorney General, Elizabeth H. Brock, Assistant Attorney General, for appellee.