Flanders v. State , 279 Ga. 35 ( 2005 )

Thompson, Justice.

Arkee Sheriff Flanders was convicted of malice murder, felony murder, and possession of a firearm during the commission of a felony, in connection with the shooting death of Jessica Tower.¹ On appeal, Flanders asserts, inter alia, that the trial court gave an improper charge on malice murder allowing the jury to infer intent to kill from the use of a deadly weapon. We agree that the charge was erroneous, however, we hold that the error was harmless. We find no reversible error in Flanders’ other contentions.

Construed to support the verdict, the evidence showed that Jessica Tower was shot in the head at close range with a .380 caliber semiautomatic pistol while she was sitting alone in her car in the early morning hours. The car lurched forward and subsequently crashed into a nearby building where the police later found it.

Flanders, an ex-boyfriend of Jessica’s sister, Erica Tower, was a suspect in a theft of money from Jessica’s residence three weeks earlier. On that occasion, after a fight between Flanders and Erica at the Towers’ home, Flanders entered Jessica’s car and stole $377 from her purse. Jessica called the police and made a full report of the theft, and the police questioned Flanders about the stolen money. Flanders initially denied knowledge of the theft, but later admitted taking the money.

Jessica did not pursue prosecuting Flanders; instead she attempted to arrange for the return of the money without his arrest. On the night in question, Flanders was on his way home from a nightclub when he telephoned Jessica and proposed that they meet in Shaw Park where he would return the money. Flanders took with him a Larson .380 semiautomatic handgun, which had been left at his home by a friend the previous day. Jessica drove to Shaw Park and pulled her car up to Flanders so that he was standing on the passenger side. She rolled down the passenger window. Flanders, who was armed with the gun, leaned into Jessica’s car and from a distance of about six inches, shot Jessica in the head. Flanders did not attempt to render aid to Jessica; instead, he ran from the scene.

Later that morning, Flanders hid the weapon under a friend’s mattress. That afternoon, Flanders was picked up for questioning concerning the shooting. He received Miranda² warnings and agreed to talk to the officers. During the course of the lengthy interview, Flanders at first denied any knowledge of the shooting, and then attempted to implicate his friend. Finally, after making incriminating statements, Flanders admitted that he shot Jessica, but that the shooting had been accidental.

At trial, Flanders admitted to taking the money from Jessica; that he chose Shaw Park as the location for their meeting; and although he told Jessica he would return some of the money to her at their meeting, he did not do so before shooting her. Flanders continued to maintain that the shooting was an accident. The State’s firearms expert testified that the gun required eight and one-half pounds of rearward pressure to fire which, according to the firearms expert, constituted “a heavy trigger pull.”

1. The evidence was sufficient for a rational trier of fact to have found Flanders guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Arguing that the State exercised a pattern of racially discriminatory strikes by striking all of the three African-Americans on the jury panel, Flanders asserts the trial court erred when it denied his Batson³ challenge. We disagree.

The evaluation of a Batson challenge involves a three-step process: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven discriminatory intent.

Thomas v. State, 274 Ga. 156, 161 (5) (549 SE2d 359) (2001). A trial court’s finding as to whether the opponent of a strike has proven discriminatory intent is entitled to great deference and will not be disturbed unless clearly erroneous. Barnes v. State, 269 Ga. 345 (6) (496 SE2d 674) (1998).

Flanders made a prima facie case of racial discrimination by establishing that the State struck all of the African-American jurors on the panel. The State then proffered its reasons for each of the strikes.

The State explained it struck the first prospective juror because his recollection abilities were called into question when he could not remember on what type of jury he had previously served; his service would create an extreme hardship because he was required to care for a dependent aunt; and he would find the evidence too offensive. These explanations are race-neutral, related to the case to be tried, and are all clear and reasonably specific reasons for exercising the challenge. Gamble v. State, 257 Ga. 325 (5) (357 SE2d 792) (1987). See also Sears v. State, 268 Ga. 759 (8) (493 SE2d 180) (1997) (hardship imposed on mother of dependent infant is race-neutral reason for exercising peremptory challenge).

The State struck the second prospective juror because her son recently had been prosecuted for a DUI. The prior conviction of a family member is a sufficiently race-neutral reason to exercise a peremptory strike. Henry v. State, 265 Ga. 732 (2) (462 SE2d 737) (1995).

The prosecutor explained that he struck the third prospective juror because of her employment as a social worker, and that it is the practice of his office to strike jurors with backgrounds in social work and psychology.⁴ This has also been held to be a race-neutral explanation. Askew v. State, 254 Ga. App. 137 (9) (564 SE2d 720) (2002). See also Roundtree v. State, 257 Ga. App. 810 (2) (572 SE2d 366) (2002); Horne v. State, 237 Ga. App. 844 (4) (517 SE2d 74) (1999) (employment in social work one of several race-neutral reasons for excluding juror).

Flanders failed to carry his burden of proving purposeful discrimination. See Foster v. State, 272 Ga. 69 (5) (525 SE2d 78) (2000); Williams v. State, 271 Ga. 323 (2) (519 SE2d 232) (1999). It follows that the trial court did not err in denying Flanders’ Batson motion. Barnes, supra at 345 (6).

3. We reject Flanders’ assertion that his statement to the police was induced with the hope of benefit, and therefore involuntary. The investigating officer testified at a Jackson v. Denno⁵ hearing that Flanders was not under arrest at the time he gave the statement, that he was nonetheless advised of his Miranda rights and appeared to understand them, and that he was not threatened, coerced, or promised anything in return for his statement.

Flanders did not testify at the hearing or provide a specific basis for excluding his statement. And nothing in the record suggests the investigating officers coerced Flanders either by threats to his mother or by threats as to the length of time they would keep him at the police station. Pittman v. State, 277 Ga. 475 (2) (592 SE2d 72) (2004).

The trial court determined that Flanders was advised of his constitutional rights, that he knowingly and voluntarily relinquished those rights, and that his subsequent statements were voluntary. Considering the totality of the circumstances, that determination is not clearly erroneous. Atkins v. State, 274 Ga. 103 (4) (549 SE2d 356) (2001).

4. Any assertion that first appellate counsel was ineffective for failing to challenge the admissibility of Flanders’ statement is rendered moot by our ruling in Division 3.

5. Flanders asserts that his statement to the police was a confession which the State failed to corroborate at trial.

The State cannot rely solely on Flanders’ statement to prove its case. “If [the] statement is an admission, the State must present additional direct or circumstantial evidence of his guilt of felony murder. [Cit.] If the statement is a confession, the State must introduce additional evidence which corroborates it. OCGA § 24-3-53.” Walsh v. State, 269 Ga. 427, 429 (1) (499 SE2d 332) (1998). “An admission differs from a confession in that a confession acknowledges all of the essential elements of the crime.” Id.

Flanders admitted to the police that he called Jessica and arranged the meeting at Shaw Park; that he came armed with the .380 pistol because he thought she may bring a companion in an attempt to ambush him; that he waited for her to drive up and then approached the front passenger window; and that he leaned inside with the gun in hand. Flanders stated that he “forgot [the gun] was in my hand... and it just went off.” Although felony murder does not require malice or intent to kill, it does, however, “require that the defendant possess the requisite criminal intent to commit the underlying felony.” Holliman v. State, 257 Ga. 209, 210 (1) (356 SE2d 886) (1987). Since Flanders did not admit the underlying aggravated assault, his statement was in the nature of an admission. The State satisfied its burden of introducing sufficient direct and circumstantial evidence of his guilt of malice and felony murder by showing that the gun which Flanders carried to the scene was the same gun that fired the fatal shot, that he had access to the weapon, and that he arranged the meeting with Jessica. Even if corroboration were required, the State produced sufficient evidence of the other material elements of malice and felony murder to provide the necessary corroboration. See Walsh, supra at 430 (corroboration requirement is satisfied by “the existence of additional evidence which corroborates [a] confession in any particular”). See also Chapman v. State, 275 Ga. 314 (2) (565 SE2d 442) (2002); Sands v. State, 262 Ga. 367 (1) (418 SE2d 55) (1992).

6. It follows that the trial court did not err in refusing to give a requested charge on the principle of corroboration since such a charge was not adjusted to the evidence.

7. During opening statement, defense counsel opined that the lead detective did not believe that Flanders “knew how to handle that particular gun, much less pull the trigger. So I think when you hear the evidence, the State’s own detective . . . believed that it was an accident.” During the State’s direct examination of the detective, the prosecutor asked, “Did you ever in your own mind feel like this was —■ was there any way that this was an accident?” The trial court allowed the question, over objection, because it was raised in opening statement by the defense.

Clearly, Flanders’ counsel opened the door to testimony to the subject by suggesting during opening statement that the detective believed the shooting to be accidental. See generally Whitt v. State, 257 Ga. 8 (2) (a) (354 SE2d 116) (1987). Moreover, even if the trial court erred in admitting the statement of the detective, it was cumulative of earlier testimony admitted without objection. The State’s ballistics expert, who testified before the lead detective, was asked whether the weapon was “subject to accidental firing.” She responded: “the only way that that weapon would fire for me was by pulling the trigger. It would not fire any other way.” Flanders did not object to this statement. Thus, error if any, in allowing the detective’s testimony is harmless. See Rose v. State, 275 Ga. 214 (4) (563 SE2d 865) (2002); Gordon v. State, 273 Ga. 373 (4) (c) (541 SE2d 376) (2001); Johnson v. State, 270 Ga. 234 (4) (507 SE2d 737) (1998).

8. The trial court charged the jury:

You may infer that a person of sound mind and discretion intends to accomplish the natural and probable consequences of that person’s intentional acts. And if a person of sound mind and discretion intentionally and without justification uses a deadly weapon or instrumentality in the manner in which the weapon or instrumentality is ordinarily used and thereby causes the death of a human being, you may infer the intent to kill.

At the time of Flanders’ trial in 1999, this was considered a proper, although discouraged, charge. Subsequently, in Harris v. State, 273 Ga. 608 (2) (543 SE2d 716) (2001), this Court ruled the charge to be erroneous. When Harris was decided, the present case was pending on direct review. Harris expressly provides that the rule “will be applied to all cases in the ‘pipeline’ — i.e., cases which are pending on direct review or not yet final.” Id. at 610 (2). Unlike Harris, the evidence of malice in this case is overwhelming, and, therefore, it is highly probable that the error did not contribute to the verdict. Thus, the error is harmless. See Franks v. State, 278 Ga. 246 (6) (599 SE2d 134) (2004); Fulton v. State, 278 Ga. 58 (4) (597 SE2d 396) (2004); Scott v. State, 275 Ga. 305 (5) (565 SE2d 810) (2002). Judgment affirmed. All the Justices concur.

1 A grand jury indicted Flanders on June 11, 1998, and charged him with malice murder, felony murder predicated on the underlying felony of aggravated assault, possession of a firearm during the commission of a felony, theft by taking for the taking of money from Jessica Tower, and both burglary and theft by taking for the unlawful entry and taking of property from the dwelling house of Ray Harris. Trial commenced on April 20, 1999; four days later, a jury found Flanders guilty of all charges, except for the burglary and theft counts relating to Harris. The felony murder conviction was vacated as a matter of law, Malcolm v. State, 263 Ga. 369 (4) (434 SE2d 479) (1993), and the trial court sentenced Flanders to life in prison for malice murder, plus a concurrent term of 12 months. Flanders’ timely motion for new trial was denied on July 9, 2003. A notice of appeal was filed on July 30, 2003. The case was docketed in this Court on July 22, 2004, and submitted for a decision on briefs on September 13, 2004.

2 Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

3 Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

4 In fact, the prosecutor stated his intention to strike a Caucasian juror on the subsequent panel for exactly the same reason, and the record reflects that was done.

5 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).