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Docket Number

S95A1517

Attorney(S)

Robert P. Phillips III, for appellant. Spencer Lawton Jr., District Attorney, Christine Sieger, Assistant District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Marla-Deen Brooks, Assistant Attorney General, for appellee.

Judges

Robert Benham

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Smart Summary

Knight v. The State, S95A1517 (Supreme Court of Georgia, Dec. 4, 1995)

Factual and Procedural Background

In December 1991 Ruben Bangs was killed and Angela Harrington was injured by gunfire. Appellant Bobby Knight, Jr. was indicted January 19, 1994, and after a three-day trial in December 1994 was convicted of the murder of Bangs, the aggravated assault of Bangs, and the aggravated assault of Harrington. The trial court vacated the aggravated assault conviction as to Bangs in light of the felony murder verdict and sentenced appellant to life imprisonment; appellant received a consecutive sentence of 20 years' imprisonment for the aggravated assault of Harrington. Appellant's motion for new trial, filed January 4, 1995 and amended February 22, 1995, was denied April 27, 1995. Notice of appeal was filed May 17, 1995; the appeal was docketed June 23, 1995 and submitted on briefs.

Legal Issues Presented

Whether the evidence was sufficient to sustain appellant's convictions for felony murder and aggravated assault.
Whether testimony recounting prior out-of-court statements (specifically statements by co-defendant/witness Jimmy Lee Drayton) was admissible over hearsay objections.
Whether several alleged trial errors related to the testimony and treatment of Drayton were preserved for appellate review.
Whether trial counsel provided ineffective assistance in various respects, including failure to interview witnesses, failure to object to treatment of a witness as hostile, failure to object to admission of a tape recording, and failure to object to testimony by an assistant district attorney not listed on the witness list.

Arguments of the Parties

Appellant's Arguments

The evidence was insufficient to support conviction for felony murder and aggravated assault (implicit in challenging the verdicts).
The trial court erred in permitting certain testimony concerning prior statements by Jimmy Lee Drayton, including allowing the State to call Drayton for the purpose of discrediting him, treating Drayton as a hostile witness, admitting a tape recording of an interview with Drayton, permitting an assistant district attorney not on the witness list to testify, and allowing introduction of statements by Drayton about fear of retribution from appellant.
Trial counsel rendered ineffective assistance by failing to interview the surviving victim and Drayton pretrial; failing to object to the court's treatment of Drayton as hostile; failing to object to admission of the tape recording of Drayton's interview; and failing to object to testimony by an assistant district attorney not on the witness list.

Appellee's Arguments

This opinion does not contain a detailed account of the appellee's legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jackson v. Virginia, 443 U.S. 307 (99 S.C. 278, 61 L.Ed.2d 560) (1979)	Standard for sufficiency of the evidence (whether a rational trier of fact could find guilt).	The court applied this standard and concluded the evidence was sufficient to authorize convictions for felony murder and aggravated assault.
Gibbons v. State, 248 Ga. 858, 862 (286 S.E.2d 717) (1982)	Prior inconsistent statement of a witness who testifies and is subject to cross-examination is admissible as substantive evidence.	Used to support admissibility of Drayton's prior out-of-court statements when Drayton testified inconsistently at trial and was subject to cross-examination.
Foster v. State, 216 Ga. App. 26, 28 (453 S.E.2d 482) (1995)	Prior inconsistent statements are not subject to hearsay objection under these circumstances.	Reinforced conclusion that hearsay objections to testimony recounting Drayton's prior statements were properly overruled.
Barksdale v. State, 265 Ga. 9 (453 S.E.2d 2) (1995)	Distinguished: reversible error to admit as prior inconsistent statement a pretrial statement of a witness who refused to testify at trial.	Court contrasted Barksdale with present case where declarant (Drayton) testified and was cross-examined, so Barksdale did not bar admission here.
Earnest v. State, 262 Ga. 494 (1) (422 S.E.2d 188) (1992)	Objections not raised at trial are generally not preserved for appellate review.	Applied to reject appellant's several alleged trial errors related to Drayton because no objections were made at trial.
Zant v. Moon, 264 Ga. 93, 97 (440 S.E.2d 657) (1994)	Standard for ineffective assistance of counsel: must show counsel's representation fell below an objective standard of reasonableness and deprived defendant of a fair trial.	Court used this standard to evaluate and reject appellant's ineffective assistance claims.
Rutledge v. State, 245 Ga. 768 (2) (267 S.E.2d 199) (1980)	Victim's refusal to speak with defense investigator is within the victim's prerogative.	Applied in rejecting claim counsel was ineffective for not interviewing the surviving victim who testified she refused to speak pretrial.
Ethridge v. State, 163 Ga. 186 (3) (136 S.E. 72) (1926); OCGA § 24-9-63	Trial court has latitude to permit treating a witness as hostile and allow leading questions.	Cited to justify trial court's decision to permit leading questions of Drayton as a hostile witness and to find no abuse of discretion.
Ford v. State, 232 Ga. 511 (10) (207 S.E.2d 494) (1974)	Whether leading questions are permitted is within the trial court's discretion.	Supported the court's conclusion that allowing leading questions to a hostile witness was within discretion and not an abuse.
Daniels v. State, 230 Ga. 126 (6) (195 S.E.2d 900) (1973)	Appellate courts will not interfere with trial court's discretionary rulings absent abuse of that discretion.	Used to support the conclusion that no abuse of discretion occurred in treating Drayton as hostile.
Rollins v. State, 262 Ga. 698 (1) (425 S.E.2d 285) (1993)	State may use prior inconsistent statements to impeach a witness it called without requiring a showing of surprise or entrapment.	Applied to justify admission of tape recording and prior inconsistent statements of Drayton.
Ranger v. State, 249 Ga. 315, 318 (290 S.E.2d 63) (1982)	Support for using prior inconsistent statements and impeachment procedures.	Used as supporting authority for admission of prior inconsistent statements here.
Davis v. State, 249 Ga. 309, 314 (290 S.E.2d 273) (1982)	Support for admission of prior inconsistent statements when the declarant testifies and is subject to cross-examination.	Used to support admissibility of Drayton's out-of-court statements.
United States v. Owens, 484 U.S. 554, 560 (108 S.C. 838, 98 L.Ed.2d 951) (1988)	Admission of prior statements does not violate Sixth Amendment confrontation clause where declarant testifies and is subject to cross-examination.	Applied to conclude admission of tape recording did not violate confrontation rights because Drayton was present and subject to cross-examination.
Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga. App. 207 (3) (88 S.E.2d 167) (1955)	Referenced for laying necessary foundation for admission of recorded evidence/testimony.	Used to analyze whether assistant district attorney's testimony laid foundation for admission of tape recording.
Yeomans v. State, 229 Ga. 488 (2) (192 S.E.2d 362) (1972)	"Newly-discovered evidence" exception to witness-list requirements when the prosecutor did not know a witness would be needed at the time the list was furnished.	Applied to conclude the assistant district attorney not named on the witness list could have been permitted to testify under the newly-discovered evidence/surprise exception.
Harvey v. State, 165 Ga. App. 7 (4) (299 S.E.2d 61) (1983)	Support for allowing an unlisted witness to testify when sufficient surprise is shown.	Used to support conclusion that counsel's failure to object to the unlisted assistant district attorney did not constitute ineffective assistance because the witness could have been admitted for surprise.

Court's Reasoning and Analysis

The court first reviewed the State's evidence and the credibility issues at trial. The State presented evidence that appellant was present with Jimmy Lee Drayton and another person at the scene of Bangs' killing; Drayton pled guilty to felony murder, had given statements implicating appellant, and agreed to testify. At trial Drayton testified inconsistently, stating he barely knew appellant and that appellant was not involved. The court relied on the prior inconsistent out-of-court statements of Drayton (as recounted to the surviving victim and in recorded interviews) and the surviving victim Harrington's testimony that she heard appellant tell Drayton to shoot Bangs. Applying the Jackson v. Virginia sufficiency standard, the court concluded a rational trier of fact could find appellant guilty of felony murder and aggravated assault of Harrington.

Addressing hearsay and admissibility, the court explained that when a witness testifies at trial and is subject to cross-examination, the witness's prior inconsistent statements are admissible as substantive evidence and are not subject to a hearsay objection (citing Gibbons and Foster). Because Drayton testified inconsistently and was cross-examined, the court held the hearsay objection to the surviving victim's testimony recounting Drayton's statements was properly overruled, distinguishing Barksdale where the declarant refused to testify.

Many of appellant's trial error complaints regarding Drayton were rejected as unpreserved because they were not objected to at trial (citing Earnest). The court then evaluated appellant's ineffective-assistance claims under the Zant v. Moon standard and rejected them:

Failure to interview surviving victim and Drayton: the victim testified she refused to speak pretrial; counsel cross-examined her and impeached her with prior convictions. Efforts to contact Drayton were hampered by his placement in the prison system, but counsel reviewed his statements; Drayton's favorable testimony for appellant lessened need for extensive cross-examination.
Failure to object to designation of Drayton as hostile: trial court had broad latitude to treat a reluctant witness as hostile and allow leading questions; appellate interference is appropriate only for abuse of discretion, which did not occur.
Failure to object to admission of tape recording: the tape contained statements inconsistent with trial testimony; State was authorized to use such prior inconsistent statements without showing surprise or entrapment (Rollins); admission did not violate the Sixth Amendment confrontation clause or OCGA § 24-3-52 because Drayton was present and subject to cross-examination (citing United States v. Owens and Barksdale).
Failure to object to testimony by an assistant district attorney not on the witness list: although OCGA § 17-7-110 (the witness-list statute) restricted unlisted witnesses, the assistant district attorney could have satisfied the "newly-discovered evidence" exception (Yeomans) or shown sufficient surprise (Harvey); thus counsel's failure to object was not ineffective. The opinion notes the statute was repealed in 1994 but that repeal did not affect this case.

Based on these analyses, the court concluded appellant failed to show prejudice or deficient performance sufficient to establish ineffective assistance of counsel, and that the asserted trial errors were either properly decided or not preserved.

Holding and Implications

Judgment affirmed.

Consequences: The Supreme Court of Georgia affirmed the trial court's denial of appellant's motion for new trial and the convictions and sentences previously imposed — specifically, life imprisonment for the felony murder conviction and a consecutive 20-year sentence for the aggravated assault of Angela Harrington. The appellate court found the evidence sufficient, upheld the admissibility of prior inconsistent statements and the tape recording under the circumstances, found many complaints unpreserved, and rejected claims of ineffective assistance of counsel. The opinion does not announce or establish a new legal rule beyond its application of existing precedent; its effect is to affirm the trial outcome in this case.

All information in this summary is drawn exclusively from the provided opinion of the Supreme Court of Georgia in Knight v. The State, S95A1517 (Dec. 4, 1995).

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KNIGHT v. THE STATE

BENHAM, Chief Justice.

After a three-day trial in 1994, appellant Bobby Knight, Jr. was convicted of the murder of Ruben Bangs, the aggravated assault of Bangs, and the aggravated assault of Angela Harrington. Appellant now brings his appeal from the trial court's denial of his motion for new trial.

The crimes were committed on December 26, 1991. Appellant was indicted on January 19, 1994, and tried December 13-15, 1994. In light of the guilty verdicts returned on the Bangs' aggravated assault and felony murder charges and the Harrington aggravated assault charge, the trial court vacated the Bangs' aggravated assault conviction and sentenced appellant to life imprisonment Appellant was given a consecutive sentence of 20 years' imprisonment for the aggravated assault of Harrington. Appellant's motion for new trial, filed January 4, 1995, by trial counsel, and amended February 22 by appellate counsel, was denied April 27, 1995. Appellant filed a notice of appeal on May 17, and the appeal was docketed on June 23, 1995. The case was submitted on briefs.

1. The State presented evidence that appellant was in the company of Jimmy Lee Drayton and another person when Drayton shot and killed Ruben Bangs, and the third person injured Angela Harrington, a witness to the homicide, by firing a shotgun blast at her while he robbed her moments after Bangs was fatally wounded. Appellant admitted his presence at the scene, but denied having knowledge of the plans of his companions. Drayton pled guilty to the felony murder of Bangs, gave investigators several statements in which he incriminated appellant, and agreed to testify against appellant. At trial, however Drayton testified that he barely knew appellant and that appellant was not involved in the shootings. The State then used Drayton's prior inconsistent statements where in he recounted that he had told appellant that he "had to take care of some business" with Bangs. In the out-of-court statement, Drayton went on to tell officers that appellant had participated in the assaults, but had not been involved in the planning stages. Harrington, the surviving assault victim, testified that she had heard appellant tell Drayton to shoot Bangs. The evidence was sufficient to authorize a rational trier of fact to find that appellant was guilty of the felony murder of Bangs and the aggravated assault of Harrington. Jackson v. Virginia, 443 U.S. 307 ( 99 S.C. 278, 61 L.Ed.2d 560) (1979).

2. After Drayton testified, the State recalled the surviving victim to the stand and questioned her about a conversation she had had with Drayton after testifying against him at his probation revocation hearing. Over defense counsel's hearsay objection, the witness recounted Drayton's statements implicating appellant in the crimes.

The prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence ( Gibbons v. State, 248 Ga. 858, 862 ( 286 S.E.2d 717) (1982)), and is not subject to a hearsay objection. Foster v. State, 216 Ga. App. 26, 28 ( 453 S.E.2d 482) (1995). Inasmuch as Drayton's trial testimony was inconsistent with his earlier out-of-court statement to the surviving victim and Drayton was subject to cross-examination, the hearsay objection to the surviving victim's testimony was properly overruled. Compare Barksdale v. State, 265 Ga. 9 ( 453 S.E.2d 2) (1995) (where it was reversible error to admit as a prior inconsistent statement a pretrial statement of a witness who refused to testify at trial).

3. Appellant raises a number of alleged trial court errors connected to the testimony of Drayton. However, none of the asserted errors has been preserved for appellate review because no objection was raised in the trial court. Earnest v. State, 262 Ga. 494 (1) ( 422 S.E.2d 188) (1992).

Appellant complains that the trial court erred when it allowed the State to call Drayton solely for the purpose of discrediting him; when it permitted Drayton to be treated as a hostile witness; when it allowed into evidence a tape recording of an interview with Drayton; when it allowed the testimony of an assistant district attorney not named on the witness list; and when it allowed the use of statements by Drayton concerning his fear of retribution from appellant.

4. We turn our attention to appellant's contention that trial counsel did not render effective assistance of counsel, keeping in mind that appellant must show that he was deprived of a fair trial because counsel's representation fell below an objective standard of reasonableness. Zant v. Moon, 264 Ga. 93, 97 ( 440 S.E.2d 657) (1994). For the reasons that follow, we conclude that appellant has not established that trial counsel rendered ineffective assistance of counsel.

(a) As examples of ineffective assistance, appellant cites trial counsel's failure to interview the surviving victim and Drayton before trial. The surviving victim testified at trial that she had refused to speak with trial counsel's investigator before trial, as was her prerogative. Rutledge v. State, 245 Ga. 768 (2) ( 267 S.E.2d 199) (1980). Nevertheless, trial counsel conducted a thorough cross-examination of the witness and impeached her with her convictions for theft and possession of controlled substances. Addressing her failure to talk with Drayton before trial, trial counsel testified that Drayton's placement in the state prison system had thwarted her efforts, but that she had reviewed the statements he had made to police. His trial testimony, that appellant was not involved in the shootings, was supportive of appellant's innocence and did not require extensive cross-examination.

(b) Trial counsel's failure to object to the trial court's ruling that Drayton was a hostile witness is not evidence of ineffective assistance. While on the stand, Drayton demonstrated a reluctance to tell what he knew about the shootings. Therefore, the trial court had great latitude to permit the assistant district attorney to treat Drayton as a hostile witness and propound leading questions. Ethridge v. State, 163 Ga. 186 (3) ( 136 S.E. 72) (1926), OCGA § 24-9-63. Whether leading questions are permitted is within the trial court's discretion ( Ford v. State, 232 Ga. 511 (10) ( 207 S.E.2d 494) (1974)), and exercise of that discretion will not be interfered with by the appellate courts unless the discretion is abused. Daniels v. State, 230 Ga. 126 (6) ( 195 S.E.2d 900) (1973). No such abuse occurred here.

(c) Appellant next cites as evidence of ineffectiveness trial counsel's failure to object to the admission of the tape recording of the interview of Drayton by an assistant district attorney and an investigator. There is no question but that the contents of the interview were inconsistent with Drayton's testimony at trial. Compare Barksdale v. State, supra, 265 Ga. 9. The State was authorized to use the prior inconsistent statement to impeach the witness it had called without a showing of surprise or entrapment. Rollins v. State, 262 Ga. 698 (1) ( 425 S.E.2d 285) (1993). See also Ranger v. State, 249 Ga. 315, 318 ( 290 S.E.2d 63) (1982), and Davis v. State, 249 Ga. 309, 314 ( 290 S.E.2d 273) (1982). Admission of the tape recording did not violate appellant's Sixth Amendment right to confront the witnesses against him, or OCGA § 24-3-52 since the declarant, Drayton, was present at trial and subject to unrestricted cross-examination. United States v. Owens, 484 U.S. 554, 560 ( 108 S.C. 838, 98 L.Ed.2d 951) (1988); Barksdale v. State, supra.

(d) Appellant next turns to trial counsel's failure to object to the testimony of the assistant district attorney who laid the necessary foundation for the admission of the tape recording (see Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga. App. 207 (3) ( 88 S.E.2d 167) (1955)), but who was not listed on the witness list. See OCGA § 17-7-110. The statute provides that a witness whose name is not on the witness list shall not testify without the defendant's consent unless the evidence is newly discovered. Id. Had trial counsel voiced an objection, the assistant district attorney would have satisfied the statutory requirement by asserting that the evidence was newly-discovered. Falling within the "newly-discovered evidence" exception to § 17-7-170 is a witness through whom is introduced evidence which the prosecuting attorney did not know would be needed at the time the witness list was furnished to the defendant. Yeomans v. State, 229 Ga. 488 (2) ( 192 S.E.2d 362) (1972). Since the assistant district attorney would have been able to make a sufficient showing of surprise concerning Drayton's testimony to warrant the trial court allowing the unlisted witness to testify ( Harvey v. State, 165 Ga. App. 7 (4) ( 299 S.E.2d 61) (1983)), trial counsel's failure to object did not constitute ineffective assistance of counsel.

OCGA § 17-7-110 was repealed by the General Assembly in 1994. Ga. L. 1994, p. 1895. The repeal, applicable to all cases docketed on or after January 1, 1995 (Ga. L. 1994, p. 1895, § 13), does not affect this case. OCGA § 17-16-3 provides for the furnishing of the State's list of witnesses to a defendant whose case is docketed on or after January 1, 1995.

Judgment affirmed. All the Justices concur.