Mohamed v. State

307 Ga. 89

834 S.E.2d 762

MOHAMED

v.The STATE.

S19A0705

Supreme Court of Georgia.

Decided: October 21, 2019

Akil K. Secret, for appellant. Timothy G. Vaughn, District Attorney, Keely K. Pitts, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew M. Youn, Assistant Attorney General, for appellee.

Benham, Justice.

Abdullahi Mohamed was convicted of malice murder in connection with the stabbing death of fellow inmate Johnny Lee Johnson. Following the trial court’s denial of his motion for new trial, Mohamed appeals, contending that the evidence is insufficient to sustain his conviction, that the trial court erred in several instances, and that trial counsel was constitutionally ineffective.¹ We affirm.

Viewed in a light most favorable to the jury’s verdict, the evidence presented at trial showed the following. The victim, Mohamed, and Mohamed’s two co-defendants were all inmates in the D-2 dormitory at Telfair State Prison. Witnesses testified at trial that the victim was in his cell when Mohamed entered with a knife and started a fight with the victim that carried out into the cell block’s common area; witnesses saw stab wounds on the victim’s chest when he exited his cell.

When the fight moved into the common area, the victim used a broomstick to fight with multiple men, including Mohamed. During this time, the victim was further punched and stabbed. The victim suffered non-fatal stab wounds to his shoulder and chest and a fatal stab wound to the chest.

1. Mohamed asserts that the evidence adduced at trial was insufficient to support his conviction for malice murder and, relatedly, that the trial court erred in denying his motion for directed verdict. A challenge to the trial court’s denial of a motion for a directed verdict of acquittal is subject to the same test as we apply to a challenge to the sufficiency of the evidence supporting an appellant’s conviction: "whether the evidence presented at trial, when viewed in the light most favorable to the verdicts, was sufficient to authorize a rational jury to find the appellant guilty beyond a reasonable doubt of the crimes of which he was convicted." Virger v. State , 305 Ga. 281, 286 (2), 824 S.E.2d 346 (2019). See also Jackson v. Virginia , 443 U. S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Mohamed was charged individually and as a party to the crime of malice murder.² OCGA § 16-2-20 (a) provides that "[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime." "Whether a person is a party to a crime may be inferred from that person’s presence, companionship, and conduct before, during, and after the crime." (Citations and punctuation omitted.) Williams v. State , 304 Ga. 658, 661 (1), 821 S.E.2d 351 (2018). Whether the evidence supports such an inference is a question for the jury. See id.

In this case, two eyewitnesses testified that they saw Mohamed run into the victim’s cell wielding a knife and then attack the victim. These two witnesses also testified that, when the victim emerged from his cell as the fight moved into the common area, the victim had a stab wound on his side. Mohamed, with support from his fellow aggressors, continued fighting with the victim in the common area where Mohamed was seen stabbing the victim again. As Mohamed notes, the evidence did not establish which attacker inflicted the fatal wound, but that makes no difference here; his conduct supports the jury’s conclusion that he shared an intent to murder the victim, regardless of whether he inflicted the fatal wound.³ See Jackson v. State , 303 Ga. 487, 489 (1), 813 S.E.2d 372 (2018) ("Even where it is undisputed that the victim was [fatally wounded ] by another person, every person concerned in the commission of the crime may be convicted of the crime.").

The evidence recounted above was sufficient to authorize a rational jury to find Mohamed guilty beyond a reasonable doubt of the crime of which he was convicted, see Jackson , 443 U. S. at 319, 99 S.Ct. 2781, and, accordingly, the trial court did not err in denying Mohamed’s motion for a directed verdict of acquittal, see Virger , 305 Ga. at 288, 824 S.E.2d 346.

2. Mohamed asserts that the trial court erred in three respects. We address each in turn.

(a) Mohamed argues that the trial court erred in permitting armed, uniformed law enforcement officers to remain around him throughout the trial, thereby unduly prejudicing him.

"[U]se of security measures to prevent dangerous or disruptive behavior that threatens the conduct of a fair and safe trial is within the trial court’s discretion." Krause v. State , 286 Ga. 745, 750 (5), 691 S.E.2d 211 (2010). But we need not consider whether the trial court abused its discretion here because the record shows, and Mohamed concedes, that he failed to object to the security measures during the course of the trial. "Failure to raise the issue deprives the trial court of the opportunity to take appropriate remedial action and waives appellate review of any alleged impropriety." Weldon v. State , 297 Ga. 537, 541, 775 S.E.2d 522 (2015).

(b) Mohamed next claims that the trial court erred when it admitted testimony regarding the presence of gangs and gang activity at Telfair State Prison, arguing that the evidence was irrelevant and served no purpose other than to place his character in issue.

As an initial matter, we note that, while co-defendant Gipson objected to the testimony at issue, Mohamed neither joined Gipson’s objection nor raised his own. Accordingly, his claim may be reviewed only for plain error. See Anthony v. State , 303 Ga. 399, 408 (7), 811 S.E.2d 399 (2018). To establish plain error, a defendant must identify a clear and obvious legal error that he did not affirmatively waive and demonstrate that the error affected his substantial rights. See State v. Kelly , 290 Ga. 29, 33 (2) (a), 718 S.E.2d 232 (2011). Where a defendant makes such a showing, this Court is authorized to exercise its discretion to correct that error only where the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. Id.

During the presentation of its case-in-chief, the State questioned three witnesses about the presence of gangs in Telfair State Prison. First, the State asked Officer Ben Northcutt, a corrections officer at the prison, whether he was aware of any "gangs or groups or affiliations of different inmates" at the prison around the time of the crime. After Northcutt testified generally about the prison’s "gang problem," the State asked him how to determine whether an inmate was a member of "a group or affiliation." At that point, co-defendant Gipson objected on grounds of relevance, which the trial court overruled. Northcutt then testified regarding clothing and tattoos inmates might display and noises they might make to indicate their affiliation with other inmates. As to specific groups present at the prison, Northcutt identified "the Muslim guys" and "the Christian guys." The State next questioned inmate Thomas Echols about his observations of "groups or affiliations or gangs" in the prison, and Echols identified street gangs, like the Bloods and the Crips, as well as religious groups. Finally, inmate Rashard Styles testified that "a lot of gangs" were present in the prison. When Styles mentioned the Bloods and Crips, the State pressed him further, asking about other groups of people. Styles then specifically mentioned "the Muslims." These three witnesses offered no explanation as to how membership in a religious group might relate to gang activity.⁴

Presuming for the sake of argument that the admission of this concerning evidence was error, we conclude that there is no plain error because Mohamed has not demonstrated that this testimony affected his substantial rights or, in other words, that it likely affected the outcome of his trial. See Kelly , 290 Ga. at 33 (2) (a), 718 S.E.2d 232. Notably, there was no evidence showing either that the crime was gang-related or that the defendants were motivated to participate in the crime by virtue of shared group membership. The prosecution made no reference to such a theory either in its opening statement or closing argument. See Peoples v. State , 295 Ga. 44, 57 (4) (c), 757 S.E.2d 646 (2014) (improperly admitted evidence of appellant’s prior crimes likely did not affect jury’s verdict where State did not emphasize the evidence either in opening statement or in closing argument and strong evidence showed appellant was, at a minimum, guilty as a party to the crime). In light of the tenuous connection between this evidence and Mohamed, as well as the other strong evidence against him, we conclude that Mohamed cannot demonstrate that the admission of this evidence likely affected the outcome of the trial, and this claim fails. See Harris v. State , 302 Ga. 832, 835 (2), 809 S.E.2d 723 (2018) (no plain error where evidence of defendant’s guilt was "strong").

(c) In his final claim of trial court error, Mohamed contends that the trial court erred – and, as a result, violated his constitutional right to be present at trial – when, outside Mohamed’s presence, it responded to questions from the jury.

During the jury’s deliberations, the jury submitted a note to the trial court in which it asked to review a DVD exhibit. Several follow-up notes were exchanged between the trial court and the jury; in each instance, the trial court formulated its response in consultation with the State and counsel for Mohamed and his co-defendants but outside the presence of the defendants themselves. Before the jury returned to the courtroom to view the exhibit, Mohamed and his co-defendants returned to the courtroom, and Mohamed’s trial counsel "brought him up to speed" on what had transpired in his absence. Mohamed neither voiced an...