Howard v. State

899 S.E.2d 669

HOWARD

v.The STATE.

S24A0105

Supreme Court of Georgia.

Decided: March 19, 2024

Superior Court, Muscogee County, Bemon McBride, Judge

Angela Dillon, P.O. Box 5587, Columbus, Georgia 31906, for Appellant.

Gary Drew Bergman, Prosecuting Attorney’s Council of Georgia, 1590 Adamson Parkway, Fourth Floor, Morrow, Georgia 30260, Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Meghan Hobbs Hill, Assistant Attorney General, Clint Christopher Malcolm, Assistant Attorney General, Michael Alexander Oldham, Senior Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Stacey Sherrard Jackson, District Attorney, Tina G. Stanford, A.D.A., Chatahoochee Circuit District Attorney’s Office, 100 Tenth Street, Columbus, Georgia 31901, for Appellee.

Peterson, Presiding Justice.

Marquavious Howard appeals his felony murder conviction for the 2017 shooting death of Jacorbin King.¹ Howard argues that (1) the evidence was insufficient to sustain his convictions, (2) his trial counsel was ineffective for failing to file a motion to suppress evidence of a photo identification, and (3) the trial court erred in excusing a juror for cause. We conclude that (1) the evidence was sufficient, (2) Howard has not shown that counsel performed deficiently in failing to move to suppress evidence of the photo identification, and (3) Howard’s juror claim fails because he has not shown that the selected jury was biased or incompetent. We therefore affirm.

The evidence at trial showed as follows. On the night of April 29, 2017, a group of teenagers, including Tramal Williams ("Tramal"), Samuel Jones ("Sam"), and Tyler Teal, went to King’s Muscogee County apartment, planning to steal marijuana. Teal carried a BB gun, and Sam carried his father’s firearm. At the apartment, Tramal grabbed the marijuana and began to run out, causing a fight that spilled out into the hallway. During the scuffle, Sam fell down a stairwell and lost some belongings, including his father’s gun.

Agitated about losing the items, Sam began making phone calls, asking for another gun and threatening to kill someone. Sam called his older sister, Jylonda Jones ("Jylonda"), who lived in Hoover, Alabama, and asked for her help; she agreed to come pick him up and asked her 21-year-old boyfriend, Howard, to accompany her on the approximately two-and-a-half-hour drive. On the morning of April 30, 2017, Jylonda and Howard picked up Tramal, Sam, and Teal in a white Toyota Camry and drove to King’s apartment. Everyone went inside except for Jylonda. The group initially came back to the car after being unable to find Sam’s belongings, but then went back in a few minutes later after Howard noted a bedroom door had been locked. After the group reentered the apartment, King emerged from behind the locked bedroom door, a struggle ensued, and Howard shot King multiple times.

Tramal testified that he saw Howard with a firearm magazine on the morning of the shooting. Tramal testified that King "barged out into" Howard when King came out of the bedroom, then Tramal heard gunshots as he ran out of the apartment building.

Sam testified that he saw Howard with a handgun just before the group entered King’s apartment for the last time. Sam testified that Teal became entangled with King when King "bust out of the [bed]room[,]" and King made contact with Howard’s person, with King "go[ing] for [Howard’s] mouth area." Sam testified that he pulled Teal off of King, then heard shots as he and Teal ran out of the apartment.

Teal testified that he heard one shot while he was trying to break up a fight between Howard and King, then ran away. Teal testified that Howard was the only other member of their group who was in the apartment when the victim was shot. Teal testified that he did not see Howard with a gun but saw him clutching his pants in such a manner that he could have been holding one.

Jylonda testified that she knew Howard to have a weapon generally. Sam, Teal, and Tramal all testified that none of the three of them had a firearm in the apartment on the morning of the shooting.

A neighbor who heard the shooting, Rodrell Williams, saw the group entering and leaving the apartment building. The neighbor said a person matching Howard’s description was carrying a weapon, and was accompanied by three others who looked like "little kids." Rodrell’s wife called 911 around 7:00 a.m. and testified that she heard gunshots while she was on that call.

Surveillance video capturing the area adjacent to King’s apartment building showed the arrival of a white sedan on the morning of April 30, 2017, then a group of four young men twice walking away from, then running back toward, the car. In their trial testimony, Jylonda, Sam, and Tramal identified Howard on the surveillance video as being part of the group.

A jail bunkmate of Howard, Merrick Redding, testified that Howard confessed to shooting King. According to Redding, Howard told him that he rode to Columbus with his girlfriend to retrieve her brother, then went to King’s apartment to retrieve a gun, shoe, and glasses that had been lost in a botched robbery, and that when King burst through a locked door, Howard shot him multiple times with a .40-caliber, FN-brand pistol. Redding reported that Howard told him that King and Teal had tussled, and King hit Howard in the mouth. According to Redding, Howard first shot King in the side, then fired more shots as King was falling, then finally, because Howard was upset about being hit in the mouth, Howard shot King in the head, firing a total of four to six shots.

A firearms expert testified that the shell casings recovered from the scene were consistent with having been fired by, among other possible types of guns, a .40-caliber FN handgun and had all been ejected from the same firearm. The expert also testified that bullets recovered from the scene, as well as two bullets recovered from King’s body, were consistent with having been fired by a .40-caliber FN handgun and had all been fired from the same firearm. The autopsy of King revealed four gunshot wounds, one in the head and three in the abdomen or torso, with at least one indicating a bullet entered the left side of the victim. The medical examiner testified that the distance between King and the gun when it was discharged could not be determined.

1. Howard first argues that the evidence was insufficient to support his felony murder conviction. We disagree.

[1, 2] When evaluating the legal sufficiency of evidence, we view the evidence in the light most favorable to the verdicts and inquire whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "Under this review, we must put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact." Mims v. State, 304 Ga. 851, 853 (1) (a), 823 S.E.2d 325 (2019) (citation and punctuation omitted).

[3] To support Howard’s conviction for felony murder, the evidence presented at trial had to show that he caused King’s death while in the commission of an aggravated assault with a deadly weapon. See OCGA § 16-5-1 (c). The relevant portion of Georgia’s aggravated assault statute requires the prosecution to show that a defendant committed assault "[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]" OCGA § 16-5-21 (a) (2). The crime of assault in Georgia requires that the defendant "[a]ttempt[ed] to commit a violent injury to the person of another; or … [c]ommit[ted] an act which place[d] another in reasonable apprehension of immediately receiving a violent injury." OCGA § 16-5-20 (a). A jury may find a defendant guilty beyond a reasonable doubt if the evidence shows either that he directly committed the crime or that he was a "party thereto." OCGA § 16-2-20 (a). And a jury may infer a defendant’s criminal intent, and thereby find him guilty as a party to a crime, "from his presence, companionship, and conduct before, during, and after the offense." Willis v. State, 315 Ga. 19, 24 (2), 880 S.E.2d 158 (2022) (citation and punctuation omitted).

[4] Howard appears to argue that the evidence (1) was insufficient to show that he directly committed felony murder, because the evidence did not show that he shot King, and (2) was insufficient to support his conviction on a party-to-the-crime theory, given a lack of evidence that the group that entered King’s apartment the morning of the shooting planned anything other than retrieving a weapon. Howard does not challenge the evidence showing that he was in King’s apartment when King was shot, instead arguing that the evidence was "insufficient to prove anything other than Howard was merely present at the scene[.]"But there was ample evidence showing that he was the person who shot Howard. Tramal, Sam, and Teal all testified that none of the three had a firearm, and they all testified that they either saw Howard with a gun or that he appeared to have one. This testimony was supported by the testimony of King’s neighbor that he saw someone matching Howard’s description carrying a gun. Teal also testified that Howard was the only other member of their group who was in the apartment when he heard King being shot. Moreover, Howard admitted to a jail bunkmate that he shot King in the head and torso with a .40-caliber FN pistol. And that account by the jail bunkmate was corroborated by ballistics evidence consistent with King having been shot with a .40-caliber FN handgun and autopsy findings that King was shot in the head and torso.

[5, 6] Howard also appears to suggest that the evidence was insufficient to show that he shot King because...