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Defendant appealed his sentence and conviction involving murder, burglary, and related offenses. The court held that the trial court did not err by excusing potential jurors; convictions for eight of the alleged offenses were proper; defendant's contention that the trial court erred by allowing the prosecutor to state an incorrect interpretation of the law was without merit; the court rejected defendant's contention that a new trial was required because his conviction for malice murder as a party to the crime was mutually exclusive of his convictions of tampering with evidence; the trial court did not fail to instruct the jury on the manner by which he allegedly committed the aggravated assaults in Counts 11 and 12; any issues with regard to the felony murder counts was moot because defendant's felony conviction was vacated by operation of law; the trial court did not err in denying a motion for mistrial; the trial court did not abuse its discretion in denying the motion for continuance; and the trial court had sufficient evidence to sentence defendant as a recidivist.Receive FREE Daily Opinion Summaries by Email
In the Supreme Court of Georgia
Decided: January 23, 2012
S11A1679. YOUNG v. THE STATE.
CARLEY, Presiding Justice.
After a jury trial, Appellant Torrell McGarrett Young was found guilty of
malice murder, two counts of felony murder, two counts of burglary, armed
robbery, two counts of attempted armed robbery, three counts of aggravated
assault, three counts of tampering with evidence, and conspiracy to distribute
cocaine. The felony murder verdicts were vacated by operation of law. The trial
court entered judgments of conviction and sentenced Appellant to life
imprisonment for malice murder, two consecutive 20-year terms for burglary,
a consecutive life sentence for armed robbery, two concurrent 10-year terms for
attempted armed robbery to be served consecutively to all other terms, and three
concurrent 10-year terms for tampering with evidence. The trial court merged
all other offenses into those convictions for sentencing purposes. After the
filing of a motion for new trial, the trial court entered an order granting the
motion with respect to one of the tampering with evidence convictions and the
conspiracy to distribute cocaine count, but denying the remainder of the motion.
Appellant appeals from that order.*
1. Construed most strongly in support of the verdicts, the evidence shows
that on September 27, 2004, Appellant Torrell M. Young met with Roderick
Cooper, Donnie Murphy, Carla Simmons, Ashley Davis, and Jodi McWalters
at the Bulldog Inn in Athens, Georgia. The group conspired to rob the victim,
Paul Rucker, because Appellant had observed a large amount of money in the
victim’s wallet the previous day. The next day, Appellant, Cooper, Murphy, and
Ms. Simmons proceeded to the victim’s residence in Commerce, Banks County.
Ms. Simmons entered the residence, offered the victim sex in exchange for
money, and led the victim to his bedroom. Appellant and Murphy then entered
The crimes occurred on September 28, 2004, and the grand jury returned
the indictment on September 11, 2006. The jury found Appellant guilty on
January 31, 2007, and, on that same day, the trial court entered the judgments
of conviction and sentences. The motion for new trial was filed on February 21,
2007, amended on December 21, 2010, and granted in part and denied in part
on January 7, 2011. Appellant filed the notice of appeal on January 19, 2011.
The case was docketed in this Court for the September 2011 term and submitted
for decision on the briefs.
the residence as planned, and found the couple in the bedroom. Ms. Simmons
subsequently exited the house and went back to the waiting car.
Once inside, Murphy hit the victim in the head with a liquor bottle while
Appellant kicked the victim and beat him with a telephone. Both men also
proceeded to search the residence for money. After a short while, Ms. Simmons
urged Cooper, who had been waiting in the car, to enter the residence to check
on Appellant and Murphy. Cooper, armed with a handgun, entered the house,
and, upon finding the others, pointed the gun at the victim and demanded
money. Appellant then took Cooper’s gun and held it to the victim’s head
demanding money. After no money was discovered, Appellant told Murphy to
make sure that the victim was physically incapacitated so that he could not get
to a phone. Appellant and Cooper then exited the residence with a computer
that they found in the living room on the way out. While alone in the residence
with the victim, Murphy strangled the victim to death with his hands. Murphy
emerged from the house covered in the victim’s bodily fluids and carrying the
wine bottle that he used to strike the victim, which he discarded minutes later
out the window of the car. The group drove to a nearby gas station whereupon
they cleaned the computer and Murphy cleaned himself. Appellant later sold the
computer, and the group used the proceeds to buy drugs.
After not being able to reach the victim on the day of the murder and when
no one answered the knock on the door the following day, the victim’s brother
entered the residence and found the victim deceased on the floor of the bedroom.
At trial, the medical examiner testified that the cause of the victim’s death was
blunt force trauma to the head complicated by asphyxia by manual strangulation.
The evidence was sufficient to authorize a rational trier of fact to find Appellant
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. Appellant contends that the trial court erred by excusing several
potential jurors because, according to Appellant, there is no evidence that these
jurors filed a request to be excused or an affidavit as required by OCGA § 1512-1.1. He further argues that the jurors were excused indiscriminately in
violation of this Court’s holding in Yates v. State, 274 Ga. 312, 314-316 (2)
(553 SE2d 563) (2001).
Pursuant to OCGA § 15-12-1.1 (a), a trial court may excuse a potential
juror if he or she is engaged “in work necessary to the public health, safety, or
good order,” is a full-time student, is the primary caregiver of a child six years
of age or younger, is a “primary teacher in a home study program,” or shows
other good cause. However, “whether to excuse a juror for hardship lies within
the trial court’s discretion.” Gulley v. State, 271 Ga. 337, 344 (7) (519 SE2d
655) (1999). Moreover, a trial court’s discretion to excuse jurors exists
independent of and in addition to its statutory duty to excuse jurors. Sealey v.
State, 277 Ga. 617, 620 (8) (593 SE2d 335) (2004).
Contrary to Appellant’s assertion, the trial court did not issue a blanket,
indiscriminate excusal of all jurors who raised a hardship. Besides the fact that
some jurors were denied a hardship request, the record shows that the trial court
complied with the Banks County Superior Court’s standing order regarding
juror excusals. The court issued two separate orders listing every juror that was
excused as well as the reason for the excusal. In the second order, the trial court
thoroughly explained the procedure that was followed with regard to excusing
First, no juror was excused or deferred unless that juror made
inquiry to the clerk’s office requesting to be excused. After the
juror requested to be excused, the clerk informed the [trial court] of
the reason for the request, and the [trial court] made a decision to
excuse the juror based on that information, to contact the juror
personally and inquire of him or her as to the request, or to deny the
At a pre-trial hearing, the trial court went through the list of all jurors who were
excused and gave reasons for his actions. See English v. State, 290 Ga. App.
378, 383 (3) (b) (659 SE2d 783) (2008). Additionally, “[t]here is absolutely no
evidence that the excusals or deferrals in this case were allowed in such a
manner as to alter, deliberately or inadvertently, the representative nature of the
jury lists. [Cit.]” English v. State, supra. Finally, “[t]he jury panels which were
put upon the accused contained  veniremen, substantially more than
required by OCGA § 15-12-160.” Hall v. State, 254 Ga. 272 (3) (328 SE2d
In Yates v. State, supra, this Court reversed a conviction due to an
improper excusal of potential jurors.
However, the present case is
distinguishable. The Yates court emphasized that the discretion to excuse jurors
lies with the trial court. However, in that case, the county clerk, without any
written guidelines and without any input by the trial court, granted the excusals.
In the present case, the trial court, not the clerk, granted all the excusals and also
followed specific written guidelines provided by the judicial circuit. The Yates
court also pointed out that the clerk made no inquiry into the nature of most of
the excuses and appeared to have granted every request. In contrast, the trial
court in the present case personally telephoned those jurors who he believed
required a deeper inquiry into their hardship request, and not all jurors were
granted a deferral. Finally, the excusals of potential jurors in Yates were in
violation of a previous order in that case issued by the trial court requiring the
defense to be present when any juror was excused, and the defense was not
given any notice of any excusals until the first day of voir dire. In the present
case, the trial court issued an order informing Appellant that he would be
granting excusals to potential jurors without counsel present, and also provided
Appellant with updates of the jurors excused and the reasons therefore. Hence,
Yates v. State does not demand a reversal in this case.
Although the record does not contain an affidavit for every excused juror,
after a thorough review of the trial court’s procedure, “we do not find ‘such
disregard of the essential and substantial provisions of the statute as would
vitiate the array().’ [Cit.]” Bryant v. State, 288 Ga. 876, 882 (6) (708 SE2d
362) (2011). See also Hendrick v. State, 257 Ga. 17, 18 (2) (354 SE2d 433)
(1987); Franklin v. State, 245 Ga. 141, 147 (1) (e) (263 SE2d 666) (1980),
overruled on other grounds Nash v. State, 271 Ga. 281 (519 SE2d 893) (1999).
3. Appellant contends that the convictions for eight of the alleged
offenses were improper because the trial court effectively lowered the State’s
burden of proof by allowing the prosecutor to argue that he was guilty of these
offenses as a party to the crime even though the indictment alleged that he was
the actual perpetrator of these offenses. However,
OCGA § 16-2-21 does not require that one who is a party to the
crime be indicted as a party; rather, it provides that one who is a
party to the crime may be indicted, convicted and punished for that
crime upon proof that he was a party to the crime.
Brinson v. State, 261 Ga. 884 (1) (413 SE2d 443) (1992). See also Byrum v.
State, 282 Ga. 608, 609-610 (2) (652 SE2d 557) (2007). In the present case, the
jury was satisfied beyond a reasonable doubt that these eight offenses were
committed and that Appellant was a party to their commission. That is all that
is required under Georgia law, and, therefore, the convictions were proper.
4. Appellant contends that the trial court erred by allowing the prosecutor
to state during closing argument that, with regard to the proof required to
establish a conviction for armed robbery, the immediate presence element of
armed robbery may be satisfied even if the property taken is in a separate room
from the victim. According to Appellant, this is an erroneous statement of the
law which requires a reversal. However, “[o]ne’s ‘immediate presence’ in this
context stretches fairly far, and robbery convictions are usually upheld even out
of the physical presence of the victim if what was taken was under his control
or his responsibility and if he was not too far distant.” Welch v. State, 235 Ga.
243, 245 (1) (219 SE2d 151) (1975). In Welch, a conviction for armed robbery
was upheld where money was taken from a convenience store’s cash register
after the victim was forced to leave in his car with a co-conspirator. In Wesley
v. State, 294 Ga. App. 559, 561 (1), fn. 2 (669 SE2d 511) (2008), a conviction
for armed robbery was affirmed where, after the victim was forced into the
basement of his house, the perpetrator searched the rest of his residence, taking
several of the victim’s valuables. Similarly, in the present case, the victim had
been forced into his bedroom where he was violently detained while Appellant
and a co-conspirator took his valuables from the living room. The goods stolen
had been previously under the victim’s control as they were owned by him and
located in his house, and the victim was being threatened in the very next room,
certainly not too far distant. Therefore, as the prosecutor’s statement was not
an incorrect interpretation of the law, this enumeration is without merit. See
Matthews v. State, 268 Ga. 798, 804 (7) (a) (493 SE2d 136) (1997); Lester v.
State, 267 Ga. App. 795, 798 (1) (600 SE2d 787) (2004); Smith v. State, 261
Ga. App. 25 (1) (581 SE2d 673) (2003).
5. Appellant alleges that a new trial is required because his conviction for
malice murder as a party to the crime is mutually exclusive with his convictions
of tampering with evidence for concealing Murphy’s bloodied garments and
shoes and a bottle used as a weapon. See Dumas v. State, 266 Ga. 797, 799 (2)
(471 SE2d 508) (1996). “Verdicts are mutually exclusive ‘where a guilty
verdict on one count logically excludes a finding of guilt on the other. (Cits.)’
[Cits.]” Jackson v. State, 276 Ga. 408, 410 (2) (577 SE2d 570) (2003).
Appellant makes no argument as to how a finding of guilt for murder logically
excludes a finding of guilt for tampering with evidence, but instead attempts to
argue that he was guilty of merely hindering the apprehension of a criminal, a
conviction of which is mutually exclusive to a conviction of the substantive
crime. State v. Freeman, 272 Ga. 813, 815 (2) (537 SE2d 92) (2000). Even
assuming that Appellant could create an argument around a crime for which he
was not indicted and for which we are to assume that he would be found guilty,
Appellant’s argument is inane because he states that he should have been
convicted of hindering instead of tampering with evidence because he did not
have the intent to prevent the apprehension of Murphy but to prevent the
apprehension of himself. However, in contrast to the crime of evidence
tampering, a defendant is guilty of the offense of hindering the apprehension of
a criminal under OCGA § 16-10-50 only if the criminal who is being sheltered
is someone other than the defendant. Therefore, Appellant’s own argument
contradicts his conclusion.
At trial, the prosecution presented evidence that, immediately after the
murder, Appellant and his codefendants stopped at a convenience store where
Murphy’s bloody clothes and shoes were discarded. The prosecution also
produced evidence that Murphy threw the bottle out of the window of the car as
the group was driving home from the store. Therefore, the evidence was
sufficient to convict Appellant of two counts of tampering with evidence.
Moreover, a verdict of guilty for evidence tampering is not mutually exclusive
of a verdict of guilty for malice murder because the elements of evidence
tampering are not at all logically inconsistent with the elements required for
murder. Waits v. State, 282 Ga. 1, 3 (2) (644 SE2d 127) (2007). See also
DeLeon v. State, __ Ga. __, Case Number S11A0939, decided October 3, 2011
(convictions of felony murder and tampering with evidence upheld); White v.
State, 287 Ga. 713, 717 (1) (d) (699 SE2d 291) (2010) (convictions of malice
murder and tampering with evidence upheld).
6. Appellant contends that the trial court erred by failing to state in the
jury instructions on two counts of aggravated assault the manner by which
Appellant allegedly committed the offenses as specified in the indictment.
Count 11 of the indictment alleges that Appellant committed the offense of
aggravated assault with the use of a handgun, and Count 12 of the indictment
alleges that Appellant committed the offense of aggravated assault by using his
hands and feet in a such a way that is likely to result in serious bodily injury,
that is, by bludgeoning, kicking, and strangling the victim. Appellant claims
that the trial court omitted in its instructions that the jury must find, in order to
convict him for aggravated assault, that he brandished a handgun and used his
hands and feet in a violent way. However, the transcript belies Appellant’s
claim. In its charge to the jury, the trial court stated the following:
Count 11 alleges aggravated assault in that the Defendants did
unlawfully make an assault upon the person of Paul Rucker with a
handgun, a deadly weapon, by pointing the handgun at Paul
Rucker, thereby placing him in reasonable apprehension of
immediately receiving a violent injury. Count 12 alleges
aggravated assault in that the Defendants did, while acting as a
party to the crime with Donald Murphy, unlawfully make an assault
upon the person of Paul Rucker with objects, to wit: hands and feet
which, when used offensively against another person are likely to
result in serious bodily injury, by bludgeoning, kicking, and
strangling Paul Rucker, thereby attempting a violent injury to said
Further on in the jury instructions, the trial court explained the differences
between Counts 11 and 12, including that the aggravated assault in Count 11
alleges that Appellant, with the use of a deadly weapon, placed the victim in
reasonable apprehension of receiving a violent injury, and that the aggravated
assault in Count 12 alleges that Appellant violently injured the victim with an
object, which was previously specified as his hands and feet. Thus, contrary to
Appellant’s claim, the trial court did not fail to instruct the jury on the manner
by which he allegedly committed the aggravated assaults in Counts 11 and 12.
7. Appellant contends that the felony murder count which was predicated
on the felony of conspiracy to distribute cocaine must be vacated since the count
which alleged conspiracy to distribute cocaine was vacated by the trial court due
to a defect in the indictment. According to Appellant, he cannot be convicted
of felony murder when he has not been convicted of the separate underlying
felony. However, any issue with regard to the felony murder counts “is moot
because [Appellant’s] felony murder conviction was vacated by operation of law
based on his conviction for the charge of malice murder. [Cit.]” Darville v.
State, 289 Ga. 698, 700 (3) (715 SE2d 110) (2011). See also White v. State,
supra at 714-715 (1) (a); Parker v. State, 282 Ga. 897, 899 (4) (655 SE2d 582)
Moreover, this Court has held that as long as there are sufficient facts in
the felony murder count that puts the defendant on notice of the underlying
felony, then a felony murder conviction is proper even if the defendant is not
indicted separately for the underlying felony. Middlebrooks v. State, 253 Ga.
707-708 (2) (324 SE2d 192) (1985). See also Jones v. State, 282 Ga. 47, 49 (2)
(644 SE2d 853) (2007). Count 3 of the indictment states that Appellant is
accused of the offense of felony murder in that he caused the death of the victim
“while in the commission of a felony, to wit: conspiracy to distribute cocaine.”
Therefore, not only did the indictment set forth sufficient facts of the underlying
felony in the felony murder count, but it also named the predicate felony, which
this Court has stated constitutes “the better method.” Middlebrooks v. State,
supra at 708 (2), fn. 2. The felony murder charge put Appellant on notice of the
precise predicate offense, and, thus, in the absence of a malice murder guilty
verdict, a conviction for felony murder would have been proper even though the
trial court vacated the separate underlying felony count.
8. Appellant contends that the trial court erred by denying a motion for
mistrial after a police officer testified that Appellant admitted to him that he
sells crack, which, according to Appellant, improperly placed his character into
evidence. However, the trial court permitted the State to elicit this testimony
because it was relevant to the theory of the case that Appellant and his coconspirators assaulted, robbed, and murdered the victim in order to procure
funds to participate in the illegal drug trade.
“‘While motive is not an essential element in the proof of the crime
of murder, the State is entitled to present evidence to establish that
there was a motive[,] (and) evidence which is relevant to an issue
in a case is not rendered inadmissible by the fact that it incidentally
puts the defendant’s character in issue. (Cit.)’ (Cit.)” [Cit.]
Inman v. State, 281 Ga. 67, 71 (3) (b) (635 SE2d 125) (2006). In Inman, this
Court upheld a trial court’s decision to permit testimony regarding the
appellant’s previous drug offenses because the testimony was admitted to
establish the appellant’s motive for committing the crimes for which he was
being tried. As the testimony regarding Appellant’s involvement in the drug
trade was also admitted for its relevance to the motive underlying the alleged
crimes, the trial court was not in error for permitting its admission. See Morgan
v. State, 276 Ga. 72, 76 (6) (575 SE2d 468) (2003); Collins v. State, 273 Ga. 30,
31 (2) (538 SE2d 34) (2000); Hartman v. State, 266 Ga. 613, 614 (2) (469 SE2d
9. Appellant contends that the trial court erred by refusing to grant him
a continuance of the presentence hearing and by sentencing Appellant as a
Pursuant to OCGA § 17-10-2 (a) (1), after a verdict of guilty has been
rendered by the jury in any felony case, “the judge shall dismiss the jury and
shall conduct a presentence hearing . . . [and] shall hear additional evidence in
extenuation, mitigation, and aggravation of punishment. . . .” In the present
case, the trial judge held the presentence hearing immediately after the jury
found Appellant guilty and was dismissed. Appellant, however, was not
anticipating that the presentence hearing would take place immediately and thus
was not prepared to introduce evidence and did not have any witnesses to testify
on his behalf. He argues that the trial court erroneously denied his motion for
a continuance, as he has an absolute right to a presentence hearing. However,
“[w]hether a continuance should be granted for lack of preparation lies within
the discretion of the trial court. [Cits.]” Jackson v. Hopper, 232 Ga. 419, 420
(1) (207 SE2d 58) (1974). “In this case, the trial court did not prevent
[Appellant] from participating in [a presentence] hearing; the trial court merely
refused to delay the hearing until such time as [Appellant] deemed appropriate.”
Gibbins v. State, 229 Ga. App. 896, 901 (7) (495 SE2d 46) (1997). See also
Jackson v. State, 266 Ga. 308, 309 (3) (467 SE2d 495) (1996); Scott v. State,
213 Ga. App. 84, 88 (5) (444 SE2d 96) (1994). The trial court gave Appellant
the opportunity to present evidence, introduce witnesses, and argue for
mitigation of his sentence. Appellant admits that it was his error that he was not
prepared for the hearing. Moreover, Appellant has “‘failed to identify specific
witnesses or evidence to be offered on mitigation’” and thus has “‘failed to
demonstrate any harm from the denial of the continuance.’ [Cit.]” Hooker v.
State, 278 Ga. App. 382, 388 (6) (629 SE2d 74) (2006). See also Wilson v.
State, 250 Ga. 630, 637-638 (8) (300 SE2d 640) (1983); Schwindler v. State,
254 Ga. App. 579, 590 (16) (563 SE2d 154) (2002). Therefore, Appellant has
not shown that the trial court abused its discretion in denying the motion for
Appellant also contends that the trial court erred in sentencing him as a
recidivist due to the alleged failure of the State to inform him of his prior
convictions that would be entered into evidence. See Armstrong v. State, 264
Ga. 237, 238 (1) (442 SE2d 759) (1994); Gates v. State, 229 Ga. 796, 797 (4)
(194 SE2d 412) (1972). However, Appellant did not raise an objection during
the presentence hearing that notice of his prior convictions was deficient, and
therefore any alleged error is deemed waived. Armstrong v. State, supra at 239
(3). Moreover, the notice that was required to be given to Appellant was
of all previous convictions [the State] intends to introduce at trial,
to allow [Appellant] to examine [the] record to determine if [the]
convictions are in fact his, if he was represented by counsel, and
any other defect which would render such documents inadmissible
during [the] pre-sentencing phase of trial.
Redden v. State, 294 Ga. App. 879, 881 (1), fn. 4 (670 SE2d 552) (2008).
Appellant claims that the notice with regard to his prior convictions was
deficient because, in the paperwork provided to him by the State, one of the
specified convictions was in someone else’s name and another did not specify
whether Appellant had been represented by an attorney. Appellant does not
claim that he did not have notice of what convictions would be entered against
him, only that the paperwork concerning these convictions had some errors.
Regardless of whether the paperwork had errors, Appellant received adequate
prior notice of the specific convictions that were to be used against him. It was
his responsibility to determine if the convictions were valid for use as evidence
and to provide any specific objections to the court. As the evidence shows, the
State provided certified copies of all convictions entered into evidence, and
these copies show that Appellant was the named offender, that he was
represented by counsel, and that he freely and voluntarily entered into any plea
deal. Therefore, the trial court had sufficient evidence to sentence Appellant as
Judgments affirmed. All the Justices concur.