Clyde v. State

Hunstein, Justice,

dissenting.

It is not necessary that circumstantial evidence exclude every other hypothesis except that of guilt, but only reasonable inferences and hypotheses. Pecina v. State, 274 Ga. 416, 419 (554 SE2d 167) (2001). It is for the jury to decide whether all reasonable hypotheses have been excluded. Id. The jury in this case heard evidence about *841Clyde and his cousins, brothers Nashon and James Perry, regarding a planned confrontation with the Sardis Clique members, and the efforts Clyde exerted in order to purchase the two weapons used by the Perrys, including the murder weapon, in carrying out that plan. The jury heard evidence that Clyde “hid” one weapon in the sofa of a Perry relative and placed the other weapon in some bushes close to the planned attack. Two hours before the shooting that resulted in the murder of Wanda Jackson and the aggravated assault upon Deamber Hiighes, Clyde actively interfered with the efforts by police to locate and remove deadly weapons in the possession of Perry family members in order to prevent the rumored attack. Thereafter the Perry brothers obtained the weapons “hidden” by Clyde and used one of them to fire shots at a Sardis Clique member, fatally striking an innocent bystander.

Construing the evidence in the light most favorable to uphold the jury’s verdict, my review of the transcript establishes that sufficient evidence was adduced to enable a rational trier of fact to find Clyde guilty beyond a reasonable doubt as a party to the murder, aggravated assaults and firearm possession charges. See OCGA § 16-2-20 (b). Likewise, the evidence, including N. Perry’s prior felony conviction, authorized the jury to find Clyde guilty of intentionally aiding and abetting N. Perry in violating OCGA § 16-11-131 (b) (prohibiting the receipt, possession or transportation of any firearm by a convicted felon). See United States v. Falletta, 523 F2d 1198 (5th Cir. 1975).

Accordingly, because I find no merit in any of the arguments raised by Clyde on appeal,21 would affirm the judgment entered on his conviction.

I am authorized to state that Justice Thompson joins in this dissent.

*842Decided July 16, 2003 Reconsideration denied July 29, 2003. Ellis R. Garnett, for appellant. Charles M. Ferguson, District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.

This Court found no error in those arguments asserted by the Perry brothers in Perry v. State, 276 Ga. 836 (585 SE2d 614) (2003) in which Clyde joined. Additionally, I would hold the trial court did not abuse its discretion in denying Clyde’s motion for severance, see Kidwell v. State, 264 Ga. 427, 432 (10) (444 SE2d 789) (1994); see also Langley v. State, 258 Ga. 251, 252 (2) (368 SE2d 316) (1988) (“[t]he mere fact that the evidence against one conspirator was stronger than the evidence against the other conspirator was no reason to grant a severance”); did not err by refusing to allow Clyde to impeach the verdict with testimony about alleged juror misconduct, see Lewis v. State, 249 Ga. App. 812, 815 (4) (549 SE2d 732) (2001); did not abuse its discretion in admitting autopsy photographs, see Felder v. State, 273 Ga. 844 (5) (545 SE2d 918) (2001); and properly admitted evidence regarding the “prior difficulties” between the Sardis Clique and Perry family group. See generally Edge v. State, 275 Ga. 311 (3) (567 SE2d 1) (2002).