Brown v. State

302 Ga. 454

807 S.E.2d 369

BROWN

v.The STATE.

S17A1141

Supreme Court of Georgia.

Decided: October 30, 2017

Brian Steel, for appellant.

Daniel J. Porter, District Attorney, Lee F. Tittsworth, Charissa R. Henrich, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Aimee F. Sobhani, Assistant Attorney General, for appellee.

NAHMIAS, Justice.

Appellant Ahmad Edward Brown challenges his convictions for malice murder and other crimes in connection with the shooting death of Deonta Moore. Appellant contends that he was denied the effective assistance of counsel at trial and that the trial court improperly commented on the evidence. We reject these contentions and affirm Appellant's convictions, but we vacate the trial court's judgment in part and remand the case for correction of a sentencing error.¹

1. (a) Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. On June 10, 2010, Moore obtained $1,100 in counterfeit currency from a friend; Moore told the friend that he was going to "finesse" (trick) someone with the fake money and share the proceeds with the friend. Using his cousin's cell phone, Moore then contacted Andre Allen to buy three ounces of marijuana. Allen did not have that much marijuana on hand, so he contacted Appellant, who agreed to provide the drugs and to meet Allen and Moore at Moore's apartment complex in Duluth.

Allen drove to Moore's apartment complex, parked his car, and met with Moore. When Appellant arrived, Moore got into Appellant's car and exchanged the counterfeit money for three bags of marijuana as Allen waited by his own car. Moore got out of Appellant's car and began walking away quickly. When Appellant realized that Moore gave him counterfeit money, Appellant yelled at Moore, who ran through the breezeway of Building 1600 and into a grassy field. Allen, who had arranged the drug deal, did not want Appellant to think that he was involved in the scam, so he chased after Moore. Allen caught Moore in the field, held him down, and told him to return Appellant's "stuff." Carrying a gun, Appellant also chased Moore. When Appellant reached Allen and Moore, Appellant told Allen to get out of the way and started scuffling with Moore. Appellant then fired his gun once into Moore's head, killing him. Appellant and Allen fled, leaving the apartment complex in separate cars.

Shamika Hubbard, who lived in Building 1600, testified that she saw a car pull into a parking spot and later saw two men exit the car, one of whom had a gun and was chasing the other. She heard a gunshot and then saw the car leave the apartment complex. Rafael Rodriguez, who was 17 and lived with his mother at the apartment complex, testified that he saw a man chasing another man near Building 1600, saw the man being chased fall down, and then heard a gunshot and saw two men running away. Rodriguez went home and told his mother that he saw a man get shot, but she did not believe him. The next morning, however, he and his mother discovered Moore's body lying in the bushes and called the police. Near Moore's body, police located a shell casing along with three bags of marijuana weighing a total of 2.6 ounces.

Information from a cell phone found in Moore's pocket led the police to Allen. Allen was scheduled to meet with his probation officer on June 21, 11 days after the shooting. Detective John Richter of the Gwinnett County Police Department went to the meeting to question Allen about Moore's death. During the interview, the video recording of which was played for the jury at trial, Allen described Appellant's role in the shooting while downplaying his own role. Allen was arrested after the interview. Cell phone records showed about 20 calls between Appellant and Allen on the evening of the shooting, and cell tower data showed that for about ten minutes that night, Appellant's cell phone, Allen's cell phone, and the cell phone taken from Moore's pocket were in range of the cell tower covering the apartment complex. Appellant cancelled his cell phone service the day after the shooting.

Appellant was arrested in late July. A jail cellmate testified that Appellant said he shot a man near an apartment complex breezeway after meeting with the man to sell him drugs, that he always kept a gun on him in case something went wrong, and that he disconnected his cell phone number after the shooting.

Allen pled guilty to voluntary manslaughter and was sentenced to 20 years with the last ten to be served on probation. He testified against Appellant, as did his sister and his children's mother, to whom he had described Appellant's role in the shooting in the days after the murder. Appellant did not testify at trial. The defense theory was that Allen lied about Appellant's involvement in the crimes, with defense counsel emphasizing that nobody but Allen identified Appellant at the crime scene.

(b) Appellant does not challenge the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court's practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes for which a judgment of conviction was entered, as well as selling marijuana, see footnote 1 above. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Vega v. State, 285 Ga. 32, 33, 673 S.E.2d 223 (2009) (" ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ " (citation omitted)).

(c) In sentencing Appellant, the trial court purported to merge the aggravated assault and selling marijuana verdicts into the felony murder verdicts, and then to merge the felony murder verdicts into the malice murder conviction. This merger analysis was erroneous, as Appellant properly acknowledges in his brief. The felony murder counts were actually vacated by operation of law, and therefore the aggravated assault and selling marijuana counts could not be merged into the felony murder counts. See Graves v. State, 298 Ga. 551, 556, 783 S.E.2d 891 (2016). See also Southall v. State, 300 Ga. 462, 462 n.1, 796 S.E.2d 261 (2017). The trial court should have merged the aggravated assault verdict into the malice murder conviction, and Appellant should have been sentenced on the selling marijuana count (Count 5), which the court is directed to do on remand.

2. Appellant's primary claim on appeal is that he was denied the effective assistance of counsel at trial due to his counsel's failure to make several objections.

To establish that his trial counsel was constitutionally ineffective, Appellant must prove both deficient performance by counsel and resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 LE2d [L.Ed.2d] 674 (1984). To show that his lawyer's performance was deficient, Appellant must demonstrate that the lawyer performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. at 687–690 . This is no easy showing, as the law recognizes a "strong presumption" that counsel performed reasonably, and Appellant bears the burden of overcoming this presumption. Id. at 689 . To carry this burden, he must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not. See Humphrey v. Nance, 293 Ga. 189, 192, 744 S.E.2d 706 (2013). In particular, "decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course." Reed v. State, 294 Ga. 877, 882, 757 S.E.2d 84 (2014).

Even when a defendant has proved that his counsel's performance was deficient in this constitutional sense, he also must prove prejudice by showing "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694 [104 S.Ct. 2052]. "It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding." Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 178 LE2d [L.Ed.2d] 624 (2011) (citation and punctuation omitted). Rather, Appellant must demonstrate a "reasonable probability" of a different result, which, the United States Supreme Court has explained, is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694 [104 S.Ct. 2052].

The reviewing court need not "address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697 . In all, the burden of proving a denial of effective assistance of counsel is a heavy one, see Wells v. State, 295 Ga. 161, 164, 758 S.E.2d 598 (2014), and Appellant has failed to carry that burden.

Davis v. State, 299 Ga. 180, 182–183, 787 S.E.2d 221 (2016).

(a) Appellant claims first that his trial counsel performed deficiently by failing to object on the grounds of hearsay and improper bolstering when two witnesses testified that Allen told them within days of the shooting that Appellant shot Moore. Such objections, however, would likely have been overruled, and a "lawyer is not required to make an objection that he reasonably believes will fail." Davis, 299 Ga. at 190, 787 S.E.2d 221 (citing Premo v. Moore, 562 U.S. 115, 124, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011) ).

During cross-examination of Allen, Appellant's counsel attacked Allen's credibility in various ways, including by insinuating that Allen fabricated the story of Appellant's involvement in the shooting in order to receive a...