Kornegay v. State , 174 Ga. App. 279 ( 1985 )

Beasley, Judge.

Defendants Kornegay and Tennyson were charged with rape, aggravated assault, and two counts of kidnapping with bodily injury. They were convicted of rape, and defendant Tennyson was convicted also of simple battery. Tennyson was sentenced to a total of fifteen years and Kornegay to twelve years. They were represented by retained counsel at trial.

Following conviction and sentencing, counsel filed a motion on the general grounds. Before the hearing on the motion, new counsel filed a motion for new trial which repeated the general grounds and added two more. The two additional grounds were ineffective assistance and representation of counsel and inflammatory remarks by their counsel which were allegedly prejudicial to the defendants. Although there was no formal withdrawal, apparently the substitution of attorneys was tacitly agreed to by everyone. After a hearing, the court denied the motion. The new counsel now represents defendants on appeal from the judgments of conviction and sentence.

Appellants enumerate as error their attorney’s closing argument, on the ground that it was such that it denied them their right to effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution. No objection was made to the argument at trial, nor did the court intervene to affect it in any way.

Defendants’ theory of the case was that the young couple hitchhiking from Wisconsin not only consented to the sexual intercourse with the woman but actually offered it in partial payment for a ride to Columbus, their destination. Defendants both testified to this effect.

Counsel’s closing argument to the jury was based on the tack that the behavior of all four parties involved was despicable, but that what defendants had done was not rape and that despite what “sorry” individuals defendants were, the state had not proved beyond a reasonable doubt that the intercourse was without the consent of Ms. Daniels. It was further argued that defendants had authored no threats or injury to Ms. Daniels’ companion and that no kidnapping ever occurred.

Counsel appealed to the jurors, not asking them to find that defendants were blameless individuals for the episode engaged in, but that they certainly were not guilty of crimes. He of course blasted the character of the hitchhikers and asked that the verdict demonstrate that such people were not welcome in the community. But he said of defendants: “I told them [when I went to see them before trial], ‘Y’all are the sorriest bastards I have ever seen,’ telling these [referring to defendants]. I said, ‘Y’all niggers 40 or 50 years ago would be lynched for something like this, but you’re not under the law guilty of rape because these people are just as guilty as you are.’ ” He reinforced this with further demeaning references and stories regarding race, and at the end of his argument he summed it all up by saying, “It just ain’t right for them [the hitchhikers] to come through here doing what they did and it was not right for the two niggers to do what they did.”

On appeal, defendants complain that their attorney did not meet the standards for effective assistance of counsel guaranteed by the Sixth Amendment in that he went so overboard in trying to make it palatable for the jury to acquit them without having it appear that the jury was approving of defendants’ character and behavior, that he actually took up sides with the state and abandoned the defense of his clients, and in calling them “the sorriest bastards he had ever seen,” and “niggers.” Held:

Because of the presumption that a lawyer is competent, “the burden rests on the accused to demonstrate a constitutional violation.” United States v. Cronic, 52 LW 4560, 4562-3 (1984). The standard by which to measure claims of “actual ineffectiveness,” as was claimed by defendants, is set out in Strickland v. Washington, 52 LW 4565 (1984): “The benchmark for judging any claim of ineffectiveness,”, the Court wrote, “must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 4570. The question divides itself into two parts: “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 4570. See Davenport v. State, 172 Ga. App. 848 (324 SE2d 201) (1984).

Prevailing standards for counsel are succinctly stated in the ABA Standards for Criminal Justice, which includes The Defense Function. It commands that “[a] lawyer should not make arguments calculated to inflame the passions or prejudices of the jury.” General Standard 7.8 (c), “The Defense Function” (Approved Draft). Remarks of counsel evoking racial, religious, or ethnic prejudice should never be made in a court of justice. ABA Standards, “The Defense Function” (Commentary) 305.

Counsel has wide latitude in closing argument, in choice of theory to be advanced, in choice of style, tactics, language. The court will not second-guess the attorney who has undertaken the responsibility for representing his clients in their fight against the charges brought. As the Supreme Court has said: “In closing arguments each side is permitted to make any argument which is reasonably suggested by the evidence.” Durden v. State, 250 Ga. 325, 329-330 (297 SE2d 237) (1982). The parameters were long ago explained in Walker v. State, 5 Ga. App. 367 (63 SE 142) (1908): “Counsel should not go outside the facts appearing in the case and the inferences to be deduced therefrom, and lug in extraneous matters as if they were a part of the case; but upon the facts in the record, and upon the deductions he may choose to draw therefrom, an attorney may make almost any form of argument he desires. Of course, there are certain exceptions dictated by the decorum of the court and similar considerations; but the remarks here objected to are within no such exception. We are not inclined to countenance any undue hampering the right of counsel to argue cases in whatever manner may seem to them most expedient.” This was further explained: “All reasonable latitude should be allowed attorneys in their arguments to the jury on the facts and on inferences and deductions from the facts.” Martin v. State, 5 Ga. App. 606 (63 SE 605) (1909). Such is good law today. See Walker v. State, 232 Ga. 33, 36-37 (205 SE2d 260) (1974); Dickens v. Adams, 137 Ga. App. 564, 569 (224 SE2d 468) (1976).

The closing argument must be read in its entirety to ascertain whether counsel failed to meet the constitutional standards. While we do not approve the offensive and crude language which was used throughout, we do not find that it showed or intimated in any way that counsel had joined the state in asking for conviction or that he had abandoned the defendants’ cause. Quite the contrary.

But the closing argument goes beyond the bounds of permissibility in that it opens a door for the factor of race to be considered by the jury in determining guilt or innocence of the defendants. The record does not indicate that defendants acquiesced in it in any way. Can the law presume that these defendants acquiesced in or even knew their attorney would employ this unlawful tactic, just because they did not jump up and object when he ignored the law’s prohibition and called them “niggers” in his closing argument, the finale of the case?

Counsel’s repeated use of the racial epithet should have been stopped with a strong reprimand by the trial court, at the very least, even if counsel meant this line of argument as a trial tactic on defendants’ behalf. See OCGA § 17-8-75. As stated in Seaboard Coast Line R. v. Towns, 156 Ga. App. 24 (274 SE2d 74) (1980): “The appellate courts of this state have long held that an argument reasonably calculated to appeal to or evoke racial prejudice is improper and that a trial court, in denying a motion for mistrial, must take ‘some action to prevent unfair prejudice to a party by admonition or rebuke to counsel and/or instruction to the jury with the purpose of eradicating the effect of prejudicial remarks.’ Brown v. State, 110 Ga. App. 401, 406 (138 SE2d 741) (1964).” The court did not reprimand counsel or instruct the jury, thus by its silence giving the imprimatur of judicial tolerance to the factor of race being at least subliminally relevant to consideration of guilt or innocence. Appeals to the prejudice engendered by belief in racial inferiority have no place in our system of criminal justice, see Ham v. South Carolina, 409 U. S. 524 (93 SC 848, 35 LE2d 46) (1973), even if the theory is that the prejudice would work in defendants’ favor.

The factor of racial prejudice has been formally and officially squelched in our society after long and arduous struggles. Where it remains informally, it cannot be condoned. Certainly, then, its use cannot be invoked by counsel in a court of law, without running counter to the Sixth and Fourteenth Amendments’ guarantees.

Racial prejudice being a highly volatile and incipient and cancerous factor, its deliberate introduction rendered counsel’s performance deficient. See Hamilton v. Alabama, 376 U. S. 650 (84 SC 982, 11 LE2d 979) (1963), facts set out in Bell v. Maryland, 378 U. S. 226, 248, fn. 4 (84 SC 1814, 12 LE2d 822) (1964), reversing contempt against a black witness who refused to answer due to the solicitor’s insistence on calling her by her first name. The Court denominated it a “relic of slavery.”

The second inquiry is whether the deficient performance prejudiced the defense. Protections against racial prejudice derive constitutional stature from a principal purpose as well as from the language of those who adopted the Fourteenth Amendment. Ham v. South Carolina, supra, 409 U. S. at 526-528. When there is error, the test is whether it is highly probable that the error did not contribute to the judgment, so as to render [it] harmless beyond a reasonable doubt.” Dixon v. State, 173 Ga. App. 280 (325 SE2d 893) (1985). Sanford v. State, 153 Ga. App. 541, 542 (265 SE2d 868) (1980). In applying this test, we must keep in mind that “one of the purposes of the Due Process Clause of the Fourteenth Amendment is to insure [the] ‘essential demands of fairness.’ ” Ham, supra, 409 U. S. at 526. How can we conclude it was harmless error, applying the test? Just because defendants were found not guilty of kidnapping the couple who asked for a ride, and of aggravated assault on the male, does not demonstrate clearly that, when it came to a consideration of the racially emotional charge of rape by “niggers” of a young white woman, the inferentially sanctioned connotation of lesser status and easier conviction did not infect and affect the jurors’ minds. We cannot presume the absence of unlawful discrimination; the presumption instead, in the circumstances of this case, is that the injection of prejudice infected the verdict. At the least, it was offered as an ingredient for consideration, without any hint of prohibition by the court, and we cannot say the jury excised or rejected it. We cannot say that counsel’s unlawful characterizations did not allow the jury to regard defendants as racially inferior persons whose conviction for that reason would therefore be more easily reached. See Brown v. State, 110 Ga. App. 401, 405 (138 SE2d 741) (1964). The “essential demands of fairness” insured by the Due Process Clause of the Fourteenth Amendment require a new trial.

Judgment reversed.

Deen, P. J., Pope and Benham, JJ., concur. Deen, P. J., and Benham, J., concur specially. McMurray, P. J., concurs in the judgment only. Banke, C. J., Birdsong, P. J., Carley and Sognier, JJ., dissent.