Gobert v. State ( 2021 )

In the Supreme Court of Georgia
Decided: April 19, 2021
S21A0141. GOBERT v. THE STATE.
BETHEL, Justice.
In May 2016, a Walker County jury found Michael James
Gobert guilty of felony murder and other crimes in connection with
the shooting death of Johnny Montgomery and the aggravated
assaults of Edrius Putnam and Deisman Harrison. On appeal,
Gobert argues that the evidence presented at his trial was
insufficient to sustain his convictions; the trial court erred by
excluding Gobert from bench conferences; the trial court erred by
failing to require the court reporter to transcribe jury selection and
the charge conference; and the trial court erred by failing to rebuke
the prosecutor for allegedly improper statements made during
closing argument or grant a mistrial. For the reasons set forth
below, we affirm. 1
1. Viewed in the light most favorable to the verdicts, the
evidence presented at trial showed the following. At around 8:00
p.m. on October 19, 2015, Nicole Carroll, Gobert’s adult step-
daughter, invited both Harrison and Montgomery over to her mobile
home, which was adjacent to Gobert’s home and on his property.
Harrison and Montgomery invited Putnam to join them, and the
three men arrived at Carroll’s mobile home together. Upon their
1 The crimes occurred on October 29, 2015. On January 5, 2016, a Walker
County grand jury indicted Gobert on 11 counts: malice murder of Montgomery
(Count 1); felony murder of Montgomery (Count 2); aggravated assault of
Montgomery (Count 3); two counts of aggravated assault of Putnam (Counts 4
and 5, respectively); aggravated assault of Harrison (Counts 6); and five counts
of possession of a firearm during the commission of a felony (Counts 7-11). At
a jury trial held from May 23 to 27, 2016, Gobert was found not guilty on
Counts 1 and 7 but guilty of the remaining counts. The trial court sentenced
Gobert to life in prison without the possibility of parole on Count 2, 20 years
each on Counts 4 and 6, to be served concurrently with Count 2; and five years
each on Counts 8, 10, and 11, to be served consecutively to Count 2. For
purposes of sentencing, Count 3 merged with Count 2, and Count 9 merged
with Count 8. Due to a scrivener’s error, in its original sentencing order, the
trial court erroneously entered a sentence on Count 5. However, the trial court
amended its sentencing order to remove the sentence for Count 5 as it should
have merged into the felony murder count. On July 5, 2016, Gobert filed a
timely motion for new trial, which he later amended. The trial court denied the
amended motion on July 18, 2019. Gobert filed a notice of appeal on July 26,
2019. This case was docketed in this Court to the term commencing in
December 2020 and submitted for a decision on the briefs.
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arrival, the group began drinking alcohol, and Harrison,
Montgomery, and Carroll began to engage in sexual activity as a
group, as they had done on prior occasions. After Harrison and
Montgomery exited Carroll’s bedroom, Putnam entered and began
having sex with Carroll. However, Carroll did not permit Putnam to
continue their sexual activity. Putnam then became angry with
Carroll, called her a “b****,” pushed her, and grabbed her throat.
Upon hearing the commotion in the bedroom, Harrison and
Montgomery entered to assist Carroll and “de-escalate the
situation.” Harrison and Montgomery grabbed Putnam and tried to
remove him from Carroll’s home. Putnam, however, resisted. He
continued punching at Carroll, so she hit him with a pool cue. When
Montgomery and Harrison finally got Putnam outside the home,
Putnam picked up a dehumidifier on Carroll’s porch and threw it at
Carroll, striking her in the face.
Harrison and Montgomery managed to get Putnam into
Montgomery’s car with the intention of leaving the property.
Montgomery sat in the driver’s seat. As the car began pulling away,
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Gobert and his wife emerged from their home next door, having
heard the disturbance at Carroll’s home. Upon exiting his home,
Gobert began firing toward the occupants of the car. As Montgomery
tried to drive away, Gobert continued firing. The car hit a shed on
Gobert’s property and became stuck.
Putnam exited the car and ran into the woods after the car
crashed into the shed, but Harrison and Montgomery were unable
to escape. After Gobert began firing at the vehicle, Harrison hid
behind a child’s car seat in the backseat. He heard Montgomery say,
“I’ve been shot,” before Montgomery slumped down over the steering
wheel.
Harrison then saw Gobert run toward the car carrying a gun.
When he reached the car, Gobert pointed the gun at Harrison and
instructed him to get out and get on his knees. Harrison said,
“Please don’t kill me, sir,” and then asked Gobert if Montgomery was
okay. Gobert replied that Montgomery was unconscious and may not
be alive. Gobert held Harrison at gun point until law enforcement
officers arrived. While holding Harrison at gunpoint on the ground,
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Gobert told him, “I should shoot you, n*****.”
Four neighbors reported hearing gunshots. After the shooting,
Misty Sanchez and another neighbor, William Swisher, heard
Harrison “beg for his life.” Another neighbor called 911.
When police officers arrived in response to the call, they found
Gobert and his wife holding handguns and standing over Harrison,
who was on his hands and knees. Officers also noticed that the car
that had struck the shed was still running. Harrison advised the
police officers that Montgomery was inside the car. The police
officers then found Montgomery slumped over the center console
with a gunshot wound to the head. He later died in the ambulance
on the way to the hospital.
As officers were attending to Montgomery, Putman emerged
from the woods behind the property, shouting, “I’m a fireman. Don’t
shoot!” Officers noticed that Putnam was walking with a limp. The
police later learned that Putnam had been shot in the leg when he
was a passenger in the car, but a key in his pocket had redirected
the bullet, leaving him with only a minor leg injury.
5
At the scene, the officers also spoke with Carroll, who had
“bloody marks” on her face. During their investigation, the officers
opened the door to the police car where Gobert was being detained.
Before the officers said anything to him, Gobert said, “My life is over,
and I messed up.” After receiving Miranda 2 warnings and signing
an acknowledgement and waiver of his rights at the police station,
Gobert told detectives that earlier in the evening he awoke to voices
outside. He looked out and saw “a black man” arguing with Carroll.
Gobert told the police that he yelled, “Halt or I’ll shoot,” and that
Putnam responded, “If you shoot me, you’ll get the murder charge.”
Gobert responded to Putnam, “I don’t think so, you came onto my
property starting this trouble.”
Gobert admitted that he shot at the car several times. When
asked why, he said that when he fired at the car, he did not know if
Carroll had been injured or know any details of the argument. He
told the detectives that he shot at the people in the car because,
2 See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694)
(1966).
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“they were trespassing and causing trouble.”
Gobert asserts that the evidence was insufficient to support his
convictions for the felony murder of Montgomery and the aggravated
assaults of Putnam and Harrison. When evaluating the sufficiency
of the evidence to support a conviction, “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.”
(Emphasis omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B)
(99 SCt 2781, 61 LE2d 560) (1979). On appeal, “this Court does not
reweigh the evidence or resolve conflicting testimony.” Mosby v.
State, 300 Ga. 450, 452 (1) (796 SE2d 277) (2017).
(a) Gobert first challenges the sufficiency of the evidence as to
his conviction for felony murder. Gobert was convicted of the felony
murder of Montgomery predicated on aggravated assault.
Specifically, Count 2 of the indictment alleged that Gobert caused
Montgomery’s death while in the commission of aggravated assault
by shooting Montgomery in the head. Although the trial court
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properly merged the underlying aggravated assault count (Count 3)
for sentencing, we must consider whether the evidence presented at
trial was sufficient to support a finding that Gobert committed the
aggravated assault because it was the predicate felony for the felony
murder. See Casey v. State, ____ Ga. ____ (1) (851 SE2d 550, 552-
553) (2020).
OCGA § 16-5-1 (c) provides that “[a] person commits the offense
of murder when, in the commission of a felony, he or she causes the
death of another human being irrespective of malice.” OCGA § 16-5-
21 (a) (2) provides, in relevant part, that “[a] person commits the
offense of aggravated assault when he or she assaults . . . [w]ith a
deadly weapon[.]” As relevant here, a person commits an assault
when he or she “[a]ttempts to commit a violent injury to the person
of another[.]” OCGA § 16-5-20 (a).
Eyewitness testimony established that, after Gobert emerged
from his home, he shot numerous times into the car occupied by
Montgomery, Harrison, and Putnam. Gobert admitted shooting at
the men that night, and witnesses at the scene testified that he
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yelled a threat at them after opening fire. Montgomery was struck
in the head by one of the shots and later died.
Gobert argues that the evidence was insufficient in light of the
evidence that he acted in self-defense, defense of others, and defense
of his property. “When a defendant effectively raises an affirmative
defense such as self-defense the State bears the burden of disproving
the asserted defense beyond a reasonable doubt.” Mosby v. State, 300
Ga. 450, 451 (1) (796 SE2d 277) (2017). The State presented evidence
that Gobert was not in a position to determine whether and to what
extent Carroll was in danger and other evidence that “undermined
[Gobert’s] claim of self-defense.” Martin v. State, 306 Ga. 538, 541
(1) (832 SE2d 402) (2019). Further, Gobert shot at the car while the
three men were fleeing, and neither Carroll nor the Goberts were in
any danger or any imminent threat of harm at that point. See OCGA
§ 16-3-21 (a) (stating that a person is “justified” in using deadly force
“only if he or she reasonably believes that such force is necessary to
prevent death or great bodily injury to himself or herself or a third
party[.]”); see also OCGA § 16-3-23 (defining defense of habitation).
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Gobert’s arguments in this regard, like his arguments concerning
the reliability of the police investigation and quality of the State’s
evidence, were matters within the province of the jury to consider
and decide. See Lowery v. State, 310 Ga. 360, 360 (1) (a) (851 SE2d
538) (2020); see also Ferguson v. State, 297 Ga. 342, 344 (1) (733
SE2d 749) (2015) (jury was authorized to disbelieve defendant’s self-
defense theory).
Accordingly, this evidence was sufficient to authorize a rational
trier of fact to find Gobert guilty of aggravated assault and the felony
murder of Montgomery predicated on that aggravated assault. See
Jackson, 442 U. S. at 319 (III) (B); see also Dunbar v. State, 263 Ga.
769, 769 (1) (438 SE2d 356) (1994).
(b) Gobert also challenges the sufficiency of the evidence
presented at trial as to the aggravated assaults of Putnam (Count 4)
and Harrison (Count 6). As with the evidence supporting Gobert’s
conviction for felony murder predicated on the assault of
Montgomery, the evidence presented was sufficient to support the
jury’s verdicts on these counts of aggravated assault.
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Count 4 alleged that Gobert committed an aggravated assault
against Putnam by shooting him in the right leg. Count 6 alleged
that Gobert committed an aggravated assault against Harrison by
firing a gun in his direction. As to both counts, the jury heard
evidence that Gobert fired multiple shots into the car where Putnam
and Harrison were riding and that one of those shots hit Putnam’s
leg. Thus, the evidence presented at trial was sufficient to support
the jury’s verdicts as to the aggravated assaults of Putnam and
Harrison. Accordingly, this enumeration of error fails. 3
2. Gobert also contends that the trial court erred by failing to
include Gobert in bench conferences that Gobert’s attorney
attended. We disagree.
Before the first bench conference in the jury selection process
after Gobert’s case had been called for trial, the trial court stated the
3 Gobert has not challenged the sufficiency of the evidence presented in
regard to the three counts of possession of a firearm during the commission of
a felony for which he was found guilty and sentenced. Because this case was
docketed to this Court’s term commencing in December 2020, we do not review
the sufficiency of the evidence as to those counts sua sponte. See Davenport v.
State, 309 Ga. 385, 399 (4) (846 SE2d 83) (2020).
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following: “Let’s take that up, up here. Mr. Dunn, your client’s
always welcome up here just so you know.” Dunn, Gobert’s trial
counsel, responded, in Gobert’s presence, “Mr. Gobert, the defendant
is staying here, Your Honor.” The court then stated, “All right. Noted
for the record.” The court then conducted four additional bench
conferences with potential jurors, Gobert’s trial counsel, the
prosecutor, and a court reporter, which resulted in the dismissal of
some potential jurors. Gobert made no objection at trial to his
absence from any of those bench conferences but now asserts on
appeal that it was error to exclude him.
A defendant has a right to be present at critical stages of the
criminal proceeding against him. See Huff v. State, 274 Ga. 110, 111
(2) (549 SE2d 370) (2001). “[P]roceedings at which the jury
composition is selected or changed are critical stages at which the
defendant is entitled to be present.” (Citation and punctuation
omitted.) Zamora v. State, 291 Ga. 512, 518 (7) (b) (731 SE2d 658)
(2012). However, “the right to be present belongs to the defendant,
and he is free to relinquish it if he so chooses.” (Citation omitted.)
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Burney v. State, 299 Ga. 813, 820 (3) (b) (792 SE2d 354) (2016). A
defendant
may personally waive his right to be present at a stage in
the trial, or counsel may waive this right for the
defendant. But in order for the waiver of counsel to be
binding on the defendant, it must be made in his presence
or by his express authority, or be subsequently acquiesced
in by him.
(Citation and punctuation omitted.) Pennie v. State, 271 Ga. 419,
421 (2) (520 SE2d 448) (1999). Gobert was present in court both
when the trial court invited him to “always” join his counsel at bench
conferences and when his attorney waived his presence at such
conferences, and he did not voice any objection to his counsel’s
statement. Nor did he or his counsel ever seek his inclusion in any
of the subsequent bench conferences of which Gobert now complains
on appeal. Thus, his right to be present was waived, and this
enumeration of error fails.
3. Gobert also contends that the trial court erred when it failed
to instruct the court reporter to transcribe jury selection and the
charge conference. However, the record shows that jury selection
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and the charge conference were, in fact, transcribed and recorded,
including individual queries with potential jurors. Accordingly, this
claim provides no basis for reversal.
4. Gobert also argues that the trial court erred when it failed
to either grant his motion for mistrial or rebuke the prosecutor in
accordance with OCGA § 17-8-75 when the prosecutor, in the
presence of the jury, referenced the reasons behind a witness’s
unavailability to testify. For the reasons explained below, we
conclude that, even if the trial court committed error by not rebuking
the prosecutor, any such error was harmless. We also conclude that
the trial court did not abuse its discretion by not granting a mistrial.
During the defense’s closing argument, Gobert’s counsel
commented on the fact that the State did not call Putnam as a
witness. In response, during its closing argument, the State
remarked that “Putnam is a defendant in state court. I can’t put him
up on the stand.” Outside the presence of the jury, Gobert’s counsel
objected to this statement and moved for a mistrial on the ground
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that the State was arguing matters not in evidence. 4 The State
claimed it was responding to Gobert’s argument about the fact that
the State had not called Putnam to testify. The trial court noted that
the defense had opened the door to the State’s argument and that
Putnam had invoked his right against self-incrimination. The trial
court then denied the motion for mistrial and brought the jury back
in to provide an explanation for what occurred. Before the trial court
instructed the jury, Gobert’s counsel stated that he would object to
any instruction and renewed his motion for mistrial. The trial court
replied that it would allow Gobert to have a standing objection to
what the trial court told the jury. The trial court then instructed the
jury that “self-incrimination issues get very tangled” and that if
either the State or the defense had called a witness, the witness had
the right against self-incrimination, and if the witness chose to
assert that right, the jury would not hear testimony from that
4 Even though closing arguments were not transcribed, the court
reporter recorded Gobert’s objection to the prosecutor’s remark, the discussion
of the remark with the court, the subsequent motion for mistrial, and the
court’s ruling and curative instruction to the jury. Neither party disputes the
content of the remarks made during either side’s closing argument.
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witness. The trial court also emphasized that what lawyers said
during opening and closing remarks is not evidence.
(a) Gobert claims that the trial court erred by failing to rebuke
the prosecutor, as required by OCGA § 17-8-75, which provides:
Where counsel in the hearing of the jury makes
statements of prejudicial matters which are not in
evidence, it is the duty of the court to interpose and
prevent the same. On objection made, the court shall also
rebuke the counsel and by all needful and proper
instructions to the jury endeavor to remove the improper
impression from their minds; or, in his discretion, he may
order a mistrial if the prosecuting attorney is the offender.
However, even assuming that the trial court erred by failing to
rebuke counsel, any such error was harmless. See Dobbins v. State,
309 Ga. 163, 168 (3) (844 SE2d 814) (2020) (trial court error under
OCGA § 17-8-75 analyzed for harmless error). As discussed above,
the evidence of Gobert’s guilt was strong, and his justification
defenses were weak and unsupported. Moreover, the trial court
instructed the jury both before opening statements and after closing
arguments that the lawyers’ statements were not evidence. See
Dobbins, 309 Ga. at 168-169 (3) (explaining that even assuming that
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the trial court erred in not rebuking the prosecutor under OCGA §
17-8-75, any such error was harmless because of the strong evidence
against the defendant and the trial court’s instructions that closing
argument is not evidence); see also Fleming v. State, 306 Ga. 240,
243 (2) (830 SE2d 129) (2019) (same). As a result, “it is highly
probable that the trial court’s alleged error in failing to comply with
OCGA § 17-8-75 did not contribute to the verdicts.” (Citation and
punctuation omitted.) Dobbins, 309 Ga. at 169 (3).
(b) Gobert also argues that the trial court abused its discretion
by denying his motion for mistrial after the prosecutor’s closing
argument referred to information not in the record. We disagree.
“It is within the sound discretion of the trial court to grant or
deny a motion for mistrial, and such ruling will not be disturbed
unless it resulted from a manifest abuse of discretion.” (Citation and
punctuation omitted.) Jordan v. State, 303 Ga. 709, 713 (4) (814
SE2d 682) (2018). “When determining whether the trial court
abused its discretion, [this Court will] consider [the allegedly
improper statement], other evidence against the accused, and the
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actions of the trial court and counsel dealing with the impropriety.”
(Citation omitted.) Taylor v. State, 303 Ga. 225, 229 (3) (811 SE2d
286) (2018). And when considering requests for mistrial during
closing arguments, “a closing argument is to be judged in the context
in which it is made.” (Citation omitted.) Stephens v. State, 307 Ga.
731, 737 (3) (838 SE2d 275) (2020).
As discussed above, even though the closing arguments were
not transcribed, both parties agree on the general substance of the
comments made. As detailed above, the trial court instructed the
jury that nothing said by the lawyers during opening and closing
remarks is evidence and further explained Putnam’s Fifth
Amendment privilege against self-incrimination to the jury. Before
and after the trial court gave this instruction, Gobert objected that
this instruction was not enough to cure the harm done by the
prosecutor’s statements and moved for a mistrial. Under these
circumstances, especially considering the instructions given by the
trial court and the strong evidence against Gobert, the trial court
did not abuse its discretion by denying Gobert’s motion for a
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mistrial. See Stephens, 307 Ga. at 737 (3). Accordingly, this
enumeration fails.
Judgment affirmed. All the Justices concur.
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