Gray v. State

357 Ga.App. 47

849 S.E.2d 772

GRAY

v.The STATE.

A20A1160

Court of Appeals of Georgia.

October 7, 2020

Certiorari Denied May 3, 2021

Donald Franklin Samuel, Atlanta, for Appellant.

Sherry Boston, Decatur, Jason Matthew Rea, Atlanta, for Appellee.

Miller, Presiding Judge.

A DeKalb County jury found Frankie Gray guilty of two counts of aggravated assault and two counts of terroristic threats. Gray appeals from the judgment, sentence, and the trial court's denial of his motion for new trial. Gray argues that (1) his trial counsel was ineffective in failing to call three witnesses who were prepared to testify that one of the victims brandished a firearm before Gray shot him in self-defense; (2) the trial court erred in failing to instruct the jury on impeachment based on a prior felony conviction; (3) the trial court erred in permitting the State to introduce evidence that the police found currency and a scale with marijuana residue inside Gray's house after the shooting; and (4) the cumulative effect of the trial court's errors and trial counsel's ineffective assistance deprived him of a fair trial. A review of the record reveals no reversible error, and we therefore affirm.

Viewed in the light most favorable to the jury's verdicts,¹ the record shows that Dellan Lightburn and Gray lived in the same neighborhood. One day in June 2016, Dellan observed one of his friends arguing with Gray over the telephone, concerning the quality of marijuana which Gray had sold to the friend. Dellan testified that because Gray had sold him "good" marijuana on the previous day, he became involved in the argument and asked Gray to return the friend's money. Gray, however, told Dellan that the sale was none of his business. During a later telephone conversation concerning the transaction, Dellan called Gray a "snake," and Gray threatened, "Boy, I'm going to do you." Dellan then threatened to kill Gray's children.

Gray later spoke with Dellan's brother, Brandon Lightburn, and explained that he and Dellan would have to fight because they had been arguing over "somebody else[’s] issue." Brandon attempted to diffuse the situation, explaining to Gray that they were adults with families and lived in the same neighborhood. Later that day, while Brandon was heading home, Gray called him and said, "[w]here he at? Where he at? You better come up here. You better come up here." Brandon urged Gray to talk about the situation, but Gray again said, "come up."

Brandon drove to Gray's home, and upon entering Gray's garage, he saw Gray put a black gun behind his back in the waistband of his pants. Brandon again told Gray that they were adults and urged him to "just let it go." After learning that Brandon was at Gray's home, Dellan and his girlfriend also went to Gray's home. Upon their arrival, Gray told Dellan that they were going to fight and asked whether they would be fighting in the front or in the backyard. Gray asked Dellan whether he would put his gun down, and Dellan responded that he did not need a gun for what he was about to do. Dellan pulled up his pants in preparation for the fight and put his hands up, and Gray began shooting at him. Dellan was shot several times, including in the thumb.

When Brandon went to the ground, Gray began pacing and told him, "I might as well just shoot you in the head now; I'm going to prison." While both brothers were on the ground, Gray warned them that if they moved, he would kill them. Gray's wife exited the home and persuaded Gray to allow the brothers to leave. Gray warned them to stay on their side of the street, and Dellan and his girlfriend drove to the hospital. Later that day, Gray called Brandon and told him that he would "plead self-defense" and state that the brothers had come to his home with a gun. A search warrant was issued for Gray's home, and the search disclosed $30 in the wall and a scale with marijuana residue.

Gray was indicted on two counts of aggravated assault ( OCGA § 16-5-21 ) and two counts of terroristic threats ( OCGA § 16-11-37 (a) ).

The jury found Gray guilty of all counts, and the trial court sentenced him to serve 20 years in prison. Gray filed a motion for new trial, which the trial court denied after a hearing. This timely appeal followed.

1. First, Gray argues that his trial counsel was ineffective in failing to call three witnesses who were prepared to testify that Dellan brandished a firearm before Gray shot him in self-defense. In Gray's view, his trial counsel acted deficiently in failing to call (1) Aalilah Hughes, his wife; (2) Cherreese Charleston, who was present at the home at the time of the shooting; and (3) Deante Cross-Benson, who died prior to the hearing on the motion for new trial. We determine that trial counsel did not render ineffective assistance, and this argument therefore lacks merit.

In order to succeed on his claim of ineffective assistance, [Gray] must prove both that his trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. To prove deficient performance, [Gray] is required to show that his trial counsel acted or failed to act in an objectively unreasonable way, considering all of the circumstances and in light of prevailing professional norms. To prove prejudice, [Gray] is required to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. This burden is a heavy one. And if [Gray] fails to satisfy either part of the Strickland^{[2 ]} test, we need not examine the other part. In reviewing the trial court's decision, we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Bell v. State , 352 Ga. App. 802, 807-808 (2), 835 S.E.2d 697 (2019). "[T]he decision as to which defense witnesses to call is a matter of trial strategy and tactics, and ... tactical errors in that regard will not constitute ineffective assistance of counsel unless those errors are unreasonable ones no competent attorney would have made under similar circumstances." (Citations omitted.)

Hubbard v. State , 285 Ga. 791, 794 (3), 683 S.E.2d 602 (2009). Further, when assessing an attorney's selection of trial tactics, "the court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance as even the best criminal defense attorneys would not defend a particular client in the same way." (Footnote omitted.) State v. Wofford , 321 Ga. App. 249, 256 (1) (a), 739 S.E.2d 110 (2013).

At the hearing on the motion for new trial, trial counsel explained that all three witnesses attended the trial and were available to testify. As to Aalilah Hughes, trial counsel testified that, in her first written statement, she did not indicate that she saw anyone with a gun and that she told a separate officer that "she didn't see anything." He added that Hughes also gave an audio-recorded statement in which she "g[ave] evidence to help prosecute [Gray]." Specifically, trial counsel recalled Hughes stating that Gray fled the scene, and he did not want the jury hearing such evidence from Gray's wife. Trial counsel also recalled Hughes stating to the police that if they wanted information regarding the incident, they would need to ask Gray. Thus, in trial counsel's view, Hughes gave a significant amount of information that the State could use against Gray. Trial counsel added that Hughes’ subsequent "elaborate" statement "sort of impeach[ed]" her first statement, and he did not deem her a credible witness.

With regard to Cherreese Charleston, trial counsel testified that upon interviewing her about the incident, Charleston stated that Gray had told Brandon "that it was okay to come onto the property with his gun." Trial counsel believed that such evidence would have undercut the self-defense theory and supported the State's theory that Gray had invited the brothers over to fight. He added that Charleston was present on the day of the incident, that she did not offer a statement to the police at that time, and that the fact that Charleston only gave a statement weeks later undermined her credibility. He explained, "[t]he State can easily say, well, when you had the opportunity to give a statement immediately after the incident, you didn't make one. When you had the opportunity to get ... Mr. Gray out of this, explain it to the police early on, you didn't make a statement."

As to the third witness, Deante Cross-Benson, trial counsel testified that, as part of his statement, Cross-Benson stated that as Dellan was lying on the ground, he was apologizing to Gray and "sort of begging for his life." In trial counsel's opinion, evidence that Gray was continuing to point a gun at Dellan under these circumstances could have been seen by the jury as excessive, therefore undercutting the self-defense theory. He added that Cross-Benson also did not provide a statement on the day of the incident.

Trial counsel testified, therefore, that "there were problems with each of the [three witnesses’] statements in terms of credibility." He explained,

ultimately, I talked to the witnesses with [Gray], and what we agreed was that we were going to put [Gray's son] up first of the witnesses, of Ms. Hughes, Ms. Charleston, Mr. Cross-Benson .... We chose to put up [Gray's son] first. And we said, we'll see how it goes. And if that testimony went well, you know, we decide whether to call them. So we put [Gray's son] up, his testimony went well. He didn't really get asked many questions. The State didn't try to, for example, impeach him on the fact that he saw the victim Mr. Lightburn reaching into his waist to grab a gun. So that sort of went

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