Harris v. State

309 Ga. 599

847 S.E.2d 563

HARRIS

v.The STATE.

S20A0855

Supreme Court of Georgia.

Decided: August 24, 2020

Christina R. Cribbs, for appellant.

Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Juliana Sleeper, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Mark S. Lindemann, Assistant Attorney General, for appellee.

McMillian, Justice.

Robert Harris was convicted of malice murder and other offenses in connection with the fatal shooting of Kenneth Roberts and the assault of five other men.¹ Harris was jointly indicted and tried with co-defendants Marcus Battle and Jacobey Carter. This Court affirmed Battle's and Carter's convictions in Battle v. State , 301 Ga. 694, 804 S.E.2d 46 (2017).

In this appeal, Harris asserts that his trial counsel rendered constitutionally ineffective assistance for failing to object to certain testimony from the investigating detective and that his motion-for-new trial counsel was constitutionally ineffective for failing to raise a Brady² claim and in not asserting a due process violation because Harris's conviction rests, in part, on false evidence. Harris also argues that the trial court abused its discretion in denying his motion for continuance and committed a merger error at sentencing. Although we conclude that the trial court erred in sentencing Harris for aggravated assault under Count 5, we otherwise affirm.

1. Our opinion in Battle sets out the facts underlying the crimes in this case as follows.

The evidence construed in favor of the verdicts showed the following. On the evening of September 7, 2012, Kevin Brittain, Kenneth Roberts, Walter Williams, Jearmain Finch, Travron Gill, and Kyle Pope were "hanging out" and smoking marijuana in the carport of Brittain's home on Erin Avenue in Fulton County. They were not selling marijuana and did not have firearms. After about an hour had passed, three to five African-American men with shirts over their faces and wielding pistols emerged from around a corner and yelled at the group, "freeze, don't nobody move," "don't nobody reach for a pistol," "put your hands up," and "y'all know what it is." The six friends raised their hands but within seconds the gunmen started shooting. Brittain stayed in place with his head down. Pope ran around the outside of the house and hid in some bushes. Williams took off running but was shot "in the rear." Finch had his hands up and was first shot in the hand, and as he turned around and tried to run he was shot in the back and the left foot and fell to the ground; he was hospitalized for almost two months and sustained impairment to his ability to walk. Gill kept his head down, but after seeing Finch fall, he ran through the back yard and over a fence. Roberts, still with his hands raised, was shot in the right hand; the bullet went through his wrist and exited his forearm. As he turned to run, he was shot in the right thigh and then twice in the back. Roberts died as the result of the four gunshot wounds.

Earlier that day, Adrieonna Jumper, who was then dating Carter, drove him around the area of the shooting in her rented white Hyundai Sonata. At one point, Carter exited the car, walked up the street, and spoke with a group of people in the "Big Four" store. One of the men, "Kyshawn," said that someone at the Chevron station had jewelry and money in his pocket, that he knew where the man was, and that he "got to move." Roberts wore a very visible large diamond watch with a diamond link. Kyshawn asked who wanted to go rob the person, and Harris asked, "what's the lineup," i.e., who was going along on the robbery. Battle discussed going and decided to join in the robbery. Carter returned to Jumper's car and asked Jumper if she could give him and the group a ride, and Jumper agreed.

She recognized Harris and referred to him by his nickname, "Ding." She did not then know Battle by name, but she noticed that he had dreadlocks, and later identified him in a photographic lineup. Carter gave Jumper directions to Erin Avenue but did not say why they were going there, and Jumper drove them to Brittain's home.

Following the shooting, the gunmen returned to Jumper's car, and she drove Harris, who was wounded, to the hospital. Battle did not stay with them. Later on, Jumper and Carter cleaned the back seat of the car with soap and water. After he was shot, Finch told his friends to take him to the fire station up the street from the house. They left Finch at the fire station and brought firemen back to the house to show them Roberts's body. Police and EMTs came to the scene of the shooting. Finch was taken to the hospital. Subsequently, Williams realized that he had been shot, and he was then taken to the hospital. Later on the night of September 7, Battle was at a neighborhood club and told Nathaniel Howard that he had gotten into a shootout, that one guy was running, and that he shot him in the back and thought that he had killed him. Earlier that day, Howard had seen Battle with a revolver. Battle also was worried that he had dropped his cell phone.

The detective that responded to the shooting went to the hospital and noticed that both Harris and Finch were brought in around the same time, but he did not immediately get to speak to either of them. The detective collected Harris's clothing and possessions as evidence. Among Harris's possessions was Battle's cell phone, which was later confirmed as the phone Battle was carrying and using the day of the shooting. Records of a call to Battle's phone ten minutes before the shooting revealed that the phone was then located in the general geographic area of the crime scene.

The investigating detective received a tip that Carter was related to the investigation, and he had a description of a white four-door sedan. He tracked the car to Jumper and Carter, and was able to impound it. Harris's blood was found in the vehicle. Video surveillance at the hospital showed that Harris was removed from the rear passenger's side of this car, which had blood stains in the rear passenger seat. The detective interviewed Jumper, and she admitted that she was at the scene of the shooting with Carter. She told the detective that Harris had flagged them down while they were driving, that Carter spoke with Harris, that Carter asked her if they could get a ride, that Carter gave her directions to Erin Avenue, and that Carter instructed her as to how to position the vehicle.

...

In interviewing Howard, the detective determined that the motive behind the shooting was robbery and that Battle, Carter, and Harris were involved. Howard identified all three as being related to the shooting.

Battle, 301 Ga. at 695-97, 804 S.E.2d 46.

With regard to Harris, the evidence at trial also showed that Harris told investigators that on the day of the incident, he happened to be walking, alone, from his aunt's house in the area of the crime scene with the intent of purchasing marijuana when he ran into three men with whom he exchanged words. Moments later he heard gunfire and realized that he had sustained a gunshot wound to his leg. He said he continued up the street, leaned on someone's car to rest, and called his girlfriend to drive him to the hospital. Harris denied ever being in the driveway of the house where the shootings occurred. However, police verified that at least one of the three men Harris eventually identified had been in jail at the time of the crimes.³ Additionally, an eyewitness testified that after the shootings, he saw a man limping back to a white car with a gun in his hand. The surveillance footage from the hospital showed Harris being removed from Jumper's white car, and Harris's girlfriend denied driving him to the hospital. Traces of blood in Jumper's car were identified as belonging to Harris, and a blood trail leading from the driveway at the crime scene also was identified as Harris's blood.⁴

Although Harris does not challenge the sufficiency of the evidence, we have independently reviewed the record consistent with our current practice in murder cases and conclude that the evidence presented at trial was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Harris was guilty of the crimes for which he was convicted.⁵ See Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Harris contends that he received constitutionally ineffective assistance from both his trial counsel and the counsel who represented him in connection with his motion for new trial.

In order to establish his claims of ineffective assistance of counsel, Harris must demonstrate that his counsel were professionally deficient and that there is a reasonable probability that the outcome of his trial would have been different if counsel had not performed deficiently. See Strickland v. Washington , 466 U.S. 668, 687, 694 (III) (A) (B), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

An attorney performs deficiently under Strickland if he discharges his responsibilities at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms. Prejudice is shown by demonstrating a reasonable probability sufficient to undermine confidence in the outcome that, but for counsel's alleged unprofessional errors, the result of the proceeding would have been different.

Newton v. State , 308 Ga. 863, –––– (3), 843 S.E.2d 857 (2020) (citations and punctuation omitted). "If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong." Lawrence v. State , 286 Ga. 533, 533-34 (2), 690 S.E.2d 801 (2010).

(a) Harris asserts that his trial counsel rendered constitutionally ineffective assistance by failing to object when the investigating detective improperly opined that Harris had...