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Poellnitz v. State

Supreme Court of Georgia

November 3, 2014

POELLNITZ
v.
THE STATE

Murder. DeKalb Superior Court. Before Judge Hancock, Senior Judge.

Barry M. Hazen, Thomas M. West, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Andrew G. Sims, Assistant Attorney General, for appellee.

MELTON, Justice. All the Justices concur.

OPINION

Page 344

Melton, Justice.

Following a jury trial, Joseph Leroy Poellnitz, Jr., was found guilty of malice murder, felony murder, aggravated assault, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony.[1] On appeal, Poellnitz contends that the trial court made a number of improper evidentiary rulings and that he received ineffective assistance of counsel. For the reasons set forth below, we affirm.

1. In the light most favorable to the verdict, the record shows that, on August 4, 2009, Alpha Lorenzo Booker was shot and killed. [296 Ga. 135] The day before the murder, Poellnitz, Booker, and Maisha Wright, who has two children with Poellnitz, were running errands. Afterwards, Poellnitz and Booker took Wright to the apartment complex where she and Poellnitz lived. Poellnitz and Booker then left together, and, later that night, Poellnitz returned in an agitated state. Poellnitz went outside, and Wright followed.

Page 345

Booker jumped out of his truck and onto a red car where he smashed the windshield with his foot. At that point, Wright witnessed Poellnitz pull out a gun and shoot Booker. Poellnitz immediately drove away in his green Ford Expedition. Police later received multiple tips that a green Ford Expedition had been seen leaving the apartment parking lot shortly after the shooting. Those tips were corroborated by the security cameras.

After being shot, Booker stumbled to the back porch of Lakitta Wyatt's apartment. Police responded, and Booker was transported to a hospital where he later died. Booker did not identify the person who shot him. Months later, however, Wright told her friend Zabria Hill what happened on the night of the murder. This ultimately led to Wright telling the police in a recorded interview that she had seen Poellnitz shoot Booker. Wright later recanted her statement and provided an affidavit to the defense that she had lied to the police. She claimed the police threatened to take her children away if she did not give a statement implicating Poellnitz. She also stated that she never told Hill that she saw Poellnitz shoot Booker. The detective who conducted the interview refuted Wright's claims, as did Hill.

This evidence was sufficient to allow the jury to find Poellnitz guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

2. Poellnitz contends that the trial court erred by denying his request to instruct the jury regarding the voluntariness of Wright's prior inconsistent statement to police in which she implicated Poellnitz. Specifically, Poellnitz asked the trial court to use the Suggested Pattern Jury Charge on the voluntariness of a defendant's statement. As Poellnitz recognizes, however, this charge relates specifically to a defendant, and it is based on a statute regarding the admissibility of a confession. See OCGA § 24-3-50.[2] It is axiomatic that a requested " jury instruction must be adjusted to the evidence and embody a correct, applicable, and complete statement of law." (Citations and punctuation omitted.) Roper v. State, 281 Ga. 878, 880 (644 S.E.2d 120) [296 Ga. 136] (2007). The charge requested by Poellnitz was not applicable to the testimony of a witness other than the defendant. As a result, it was not an applicable statement of law, and the trial court did not err in rejecting the instruction. Id.

3. Poellnitz argues that his due process rights were violated when, during closing argument, the prosecutor was allowed to encourage jurors to find Poellnitz guilty in order to send a message to other defendants in DeKalb County. As an initial matter, Poellnitz made no contemporaneous objection during closing argument, and he has waived this contention for purposes of appeal. See Andrews v. State, 293 Ga. 701, 704 (4) (749 S.E.2d 734) (2013). Moreover, as Poellnitz recognizes, " [i]t is not improper for a prosecutor to appeal to the jury to convict for the safety of the community ..., or to ... argue to the jury the necessity for enforcement of the law and impress on the jury ... its responsibility in this regard." ...


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