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Anderson v. State

Supreme Court of Georgia

September 13, 2017

ANDERSON
v.
THE STATE.

          Benham, Justice.

         James Edwin Anderson was found guilty of felony murder and other crimes arising out of the shooting death of Franklin Ron Burch.[1] For the reasons set forth below, we affirm.

         Viewed in the light most favorable to the verdict, the evidence presented at trial shows that Burch was dating appellant's daughter-in-law Brittany Anderson, who was involved in a divorce proceeding with appellant's son, Edwin Anderson, Jr. Several weeks before the shooting, after learning that Ms. Anderson was seeing Burch, appellant called his daughter-in-law while intoxicated and left voice mail messages in which he threatened Burch, and those messages were played to the jury. On the day of the shooting, appellant's son exchanged angry words with Burch when he went by Burch's house in the afternoon to pick up his five-year-old son, after which Burch got into his vehicle and chased Anderson, Jr., down the road where more angry words were exchanged. Appellant and his wife were in St. Simon's Island on a brief vacation, and Anderson, Jr., telephoned his mother to tell her he was upset by the encounter and wanted to bring his son to join his parents and get away from the situation. While waiting for Anderson, Jr., to arrive, appellant and his wife proceeded to a restaurant for dinner. When Anderson, Jr., had not yet arrived when they returned to their hotel room, appellant informed his wife that he was going back home to Wayne County to have a talk with Burch. Appellant testified at trial that he first stopped by his own home to retrieve guns and ammunition out of his locked gun safe because he did not know where his son was and he was concerned that his son might take the guns and either harm himself or others. He admitted, however, that he could have simply taken the key to the locked safe.

         Appellant loaded all five of his firearms into the covered bed of his truck and started driving toward where he believed Burch lived. At some point he telephoned his daughter and asked her to look up Burch's address. It was well after dark when he drove by that address and while he saw what he believed to be his daughter-in-law's car in the driveway, he could tell the house was unoccupied. Appellant pulled off to the side of the road. Anderson, Jr., having learned that his father had driven back to Wayne County to find Burch, called appellant and asked him not to go to Burch's house, but appellant told his son that he needed to "resolve this." Shortly thereafter, appellant saw a truck that he believed to be Burch's pull into the driveway of Burch's house. Appellant had already retrieved the rifle from the back of the truck and placed it on the front seat, and he had placed a Colt .45 semiautomatic in the pocket of the passenger door. Appellant knew the rifle had one round in it, and although several other rifle cartridges were found in the cup holder of his truck after he turned himself in, appellant denied they had ever been loaded into the rifle. Appellant pulled his vehicle into Burch's driveway and saw Ms. Anderson inside the open garage near the door to the house. Appellant grabbed his rifle, went to the front of his vehicle, and saw Burch standing near the garage. Appellant testified he took the rifle with a scope with him as he exited the vehicle, but not one of the handguns, because the rifle would be easier for Burch to see in the dark. According to appellant, he wanted to have the rifle with him as a "symbol" to keep Burch from possibly "jumping on me, " since he knew Burch was younger and in better physical condition. In a recorded statement appellant gave to the investigator who interviewed him when he turned himself in later that evening, he repeatedly stated that he took the rifle out of the truck because he wanted to scare Burch but that he had no intention of harming him. He loaded one bullet in the rifle thinking that he might shoot into the air if necessary to scare Burch.

         In the recorded statement, appellant stated that when he saw Burch coming at him after he exited his truck, he decided to strike him in the stomach with the barrel of the rifle so that Burch would bend forward and appellant could then then tell him that he just wanted to talk. In that statement, appellant claimed the two men did not struggle over the rifle but that, instead, it simply went off while he had the barrel pressed against Burch's stomach. He told the investigator he had the rifle repaired in the 1990s because it had misfired and he believed that may have been what had happened on the night in question because he had fired the weapon only a few times in the many years he owned it. At trial, however, appellant testified that when Burch came toward him Burch reached for the rifle and the two men engaged in a "[t]ug of war, " as Burch tried to "tear it out of my hands." At that point, according to appellant, the gun discharged. He was not sure what had happened, or whose hand was on the trigger when the gun went off, but he saw blood "everywhere" and panicked, got into his truck, and drove away.

         Ms. Anderson testified at trial that she was inside the open garage when appellant pulled into Burch's driveway, and when she saw appellant get out of his truck "toting" a long gun at his side she hollered, "No, Big Edwin [the name she called appellant], no." She remembered Burch's hands going up, and as appellant walked around the front of the truck steadily approaching Burch, Burch said, "No, man, no." She saw Burch take maybe two steps back and then she saw him bent over with his hand on the barrel of the gun. She heard the gun go off, after which Burch slumped to the ground. On cross-examination, Ms. Anderson acknowledged that on the night of the shooting the investigating officer asked her if there had been a struggle and she had responded affirmatively, but at trial she rejected defense counsel's characterization that a "struggle" ensued between appellant and the victim over the gun. Instead, she explained that there was never a fight over the gun, but that she saw Burch bent over with his hands on the end of the barrel as the gun was pressed into his stomach.

         Emergency medical personnel were called and arrived at the scene, as did the Screven Police Chief. Efforts to revive Burch were unsuccessful and he died at the scene. After speaking by telephone with his wife and daughter, appellant turned himself in to the authorities and gave the statement that was recorded. Pursuant to a warrant to search appellant's truck, the agent who took appellant's statement found a .308-caliber rifle and four other firearms, along with four .308-caliber cartridges and other ammunition. DNA testing confirmed that blood found on the driver-side tire was Burch's. The forensic pathologist who conducted an autopsy of Burch's body testified at trial that Burch died from a gunshot wound at near contact range to the abdomen, and that parallel scrapes appearing on the victim's chest were the result of the barrel of the gun and the gun scope scraping over Burch's skin. He also identified an abrasion on the victim's left lower abdomen. Firearms testing confirmed that the metal jacket recovered from Burch's abdomen during the autopsy was fired from the rifle found in appellant's truck.

         1. Although appellant does not challenge the sufficiency of the evidence to sustain the convictions, this Court regularly conducts an examination of the record to determine the legal sufficiency of the evidence in murder cases. We conclude the evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that appellant was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Appellant asserts the trial court erred in denying his motion for new trial because during voir dire one of the jurors, who is identified in this opinion by his initial "H., " improperly concealed his connection to the case and his bias toward the victim. Appellant asserts a defendant is entitled to a new trial based on juror misconduct if the defendant is able to demonstrate that "(1) the juror failed to answer honestly a material question on voir dire and (2) a correct response would have provided a valid basis for a challenge for cause." See Glover v. State, 274 Ga. 213, 214 (2) (552 S.E.2d 804) (2001). The problem with that argument is that the record does not demonstrate that H. failed to give honest answers to voir dire questions.

         (a) During voir dire, H. answered all questions that were asked of him. He disclosed, in response to questioning, that he was appellant's neighbor; that his father and appellant's father had been friendly business competitors; that he considered himself to be a personal friend to the victim's father; that he knew Brittany Anderson and Anderson, Jr., who had been his neighbors; and that he had been personal friends with the Chief Assistant District Attorney for forty years, was friends with the sheriff, and knew the Screven Police Chief (who was identified as a witness and later testified at trial). The record shows the crimes were committed and the case was tried in a rural county where many individuals and families are acquainted and have numerous interconnections. In fact, other members of the jury array also answered that they were acquainted with persons connected to the case. With respect to each person H. identified as being a friend or acquaintance, he stated that he could nevertheless be impartial and fair, and could make a decision based solely on the evidence. With respect to those individuals he said he knew who were identified as potential witnesses, H. stated his acquaintance would not cause him automatically to believe the witness. The answers H. gave during voir dire regarding these persons were consistent with the testimony he gave at the hearing on the motion for new trial, except that at the motion hearing H. gave additional details in response to additional questions the parties asked him. Appellant has failed to demonstrate that H. failed to give honest answers to the questions he was asked regarding his knowledge about or acquaintance with persons identified to him in voir dire.

         The same can be said regarding H's answers regarding his occupation. H. answered on voir dire that he was employed by the local funeral home which handled the arrangements for Burch's funeral, and that he had conversations with both the Burch and Anderson families associated with his duties at the funeral home. He mentioned that he was referred to as a mortician. No follow up questions were asked with respect to these disclosures. At the motion for new trial hearing, however, H. disclosed in response to more detailed questioning that he embalmed Burch's body, and confirmed that at that time he had the opportunity partially to inspect and view the gunshot wound and abrasions on the body. Appellant argues that as the decedent's embalmer, he would have been qualified to testify that the victim had sustained a gunshot wound. See Young v. State, 232 Ga. 285, 289 (206 S.E.2d 439) (1974). But in the current case, that the victim had died from a gunshot wound was an undisputed fact, and H. was not identified as a potential witness prior to trial. Consequently, H. was not a known prospective witness who was subject to being excused for cause upon a proper motion. Compare Lively v. State, 262 Ga. 510, 511 (1) (421 S.E.2d 528) (1992) (a juror with close connections to the victim, who had given the victim "fatherly advice" concerning her relationship with the accused, and who was listed as a State's witness should have been excused).

         As noted, H. disclosed that he knew a number of individuals connected to the case, including both the victim and the accused, as well as their respective families. Relying upon Lively, supra, appellant argues that a close relationship between a juror and the victim and the victim's family prevents the juror from rendering an impartial verdict despite the juror's testimony that he could be a fair and impartial juror. But the degree of the juror's involvement with the victim in Lively is distinguishable from the juror's involvement in this case. Not only did that juror know the victim and her family, he had discussed with the victim her relationship with the accused and had given her "fatherly advice" concerning that relationship and other matters that might be brought out at trial. The juror had also discussed the relationship between the victim and the accused with the accused, himself. Demonstrating the close relationship between the juror and the victim's family, he was asked to serve as a pall bearer at her funeral, and did serve. The juror also testified he had expressed his remorse to the victim's family about her death. Given these facts, this Court held that, regardless of the juror's testimony that he could be impartial, the record failed to support the trial court's finding "that the juror could put aside his close relationship with the deceased and his personal knowledge of her difficulties with the defendant and render an impartial verdict based solely on the evidence presented at trial." Lively, supra, 262 Ga. at 511 (1). Moreover, in Lively, the juror was identified as a potential State's witness. H. testified at the motion for new trial hearing that he greeted the Burch family when they arrived at the funeral home to make funeral arrangements and that he hugged them and expressed condolences for their loss, but this conduct does not rise to the level of connection with the victim and her family as that involved in the Lively case. H. did not attend the victim's funeral.

         H. disclosed during voir dire that he was acquainted with, or even friends with, several persons who were scheduled to testify at trial, and appellant asserts this prevented him from being an unbiased juror. In particular, appellant points to H.'s answer in response to questioning at the motion for new trial hearing that he would testify, if asked, to the good character and truthfulness of the Chief of Police of the Screven police department, who was the first law enforcement officer to arrive at the scene of the shooting and who testified at trial about what he observed. Appellant argues this demonstrates juror bias in that H. was predisposed to believe this State's witness. In this case, however, the witness in question offered no expert testimony and the testimony about his first-hand observations involved no disputed issues. H. testified similarly when asked whether he could testify to the good character and truthfulness of another person who was identified prior to trial as a potential witness but who was not called. Neither party asked such questions of H. during voir dire. Accordingly, appellant has failed to demonstrate that H. failed to answer voir dire questions honestly. Neither has appellant shown H. was a biased juror. Appellant's reliance on cases that involve intentional misrepresentations by a juror on voir dire, [2] or unreasonable failure to disclose relevant information in response to questions on voir dire[3] are inapposite to the facts of this case and unpersuasive with respect to appellant's assertion that he is entitled to a new trial for juror misconduct on the basis of implied bias. Because appellant has failed to demonstrate that H. answered questions dishonestly during voir dire, he has failed to meet the requirements of the first prong of the two-pronged test set forth in Glover for determining whether a defendant is entitled to a new trial for juror misconduct-that the juror failed to give honest answers to voir dire questions. The trial court did not err in denying the motion for new trial on this ground. See Downey v. State, 298 Ga. 568, 571 (3) (783 S.E.2d 622) (2016) (to prevail on a juror misconduct claim the defendant must satisfy both the required prongs for establishing such a claim).

         (b) Appellant further argues that H. had knowledge about the victim's wounds, including the abrasions on the victim's chest and abdomen, and thus had exposure to extrinsic physical evidence in the case that other jurors did not have. Relying on Remmer v. United States, [4] appellant argues this extrinsic knowledge should be deemed presumptively prejudicial. In Remmer, however, a juror had been contacted during trial by a person who suggested to him that he could profit from returning a verdict favorable to the defendant. That comment was reported to the trial court and investigated by the F.B.I., but the defendant and his counsel were not informed. The United States Supreme Court held that such private communications or tampering with a juror during trial "is, for obvious reasons, deemed presumptively prejudicial, " and that under such circumstances an evidentiary hearing was required to determine the impact of the communications on the juror and whether it was, in fact, prejudicial to the defendant. Id. at 229-230. Of course, this case does not involve private communications during trial. Moreover, in this case, an evidentiary hearing was conducted in response to the motion for new trial at which H. testified that the decisions he made as a juror were based solely upon what he saw and heard in the courtroom and upon the ...


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