Reed v. State

307 Ga. 527

837 S.E.2d 272

REED

v.The STATE.

S19A1342

Supreme Court of Georgia.

Decided: December 23, 2019

Brian Steel, The Steel Law Firm, P.C., 1800 Peachtree Street, N.W., Suite 300, Atlanta, Georgia 30309, for Appellant.

Patricia B. Attaway Burton, Paula Khristian Smith, Christopher M. Carr, Katherine DeRosa Emerson, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia, Layla Hinton Zon, Amber Rae Bennett, Alcovy Judicial Circuit District Attorney’s Office, 1132 Usher Street, N.W. Suite 313, Atlanta, Georgia 30303, for Appellee.

Nahmias, Presiding Justice.

Appellant Hentrez Reed was convicted of malice murder and other crimes in connection with the shooting death of Nigel James. On appeal, he contends that his trial counsel provided ineffective assistance in three ways: (1) by not filing a motion to suppress inculpatory statements Appellant made during his interview by the police; (2) by not filing a motion to suppress his historical cell site location information; and (3) by not objecting to the admission of testimony regarding an "affidavit" he wrote and the admission of an accompanying note written by a co-defendant. We affirm.¹

1. As described in our opinion affirming the convictions of Appellant’s co-defendant Curtis McCammon, when viewed in the light most favorable to the verdicts, the evidence presented at their joint trial showed the following² :

According to Areon Clemons, on the afternoon of September 1, 2015, McCammon called Clemons to ask for a ride. McCammon and Clemons had been friends for about six months, during which the two men would "[s]moke weed, play basketball together, [and] burglarize houses." McCammon had just stolen some televisions and needed help transporting them. Clemons drove to meet McCammon in the Ellington residential community in Covington, and McCammon told him that Nigel James was coming to meet them to buy the televisions. After James left the community with two televisions, McCammon and Clemons went to buy marijuana from a drug dealer they knew as "Dizzy." That evening, James called McCammon to say that he wanted some money back because one television was not the right size, and they agreed to meet at the community’s pool house.³

On the way there in Clemons’s car, McCammon told Clemons that he wanted to rob and kill James. McCammon had seen James with cash when James paid for the televisions earlier that day. McCammon told Clemons to stop at Appellant’s house on the west side of the Ellington community so McCammon could get a gun. Appellant was using drugs when they arrived. Appellant then joined McCammon and Clemons, and Clemons drove to a street near the pool house, where they parked. The three men walked to the rear of the pool house to wait for James. As they waited, Appellant showed McCammon how to use the gun and told him not to be scared. When James arrived, Clemons ran back to his car as McCammon and Appellant walked toward James’s car; the gun was in McCammon’s hand. As Clemons ran, he heard several gunshots. McCammon and Appellant then returned to Clemons’s car; they apparently had not taken anything from James. As Clemons drove away, McCammon and Appellant said that they wanted to go rob Dizzy (the drug dealer) because they believed Dizzy would have cash they could steal. Clemons refused, however, and instead he dropped off McCammon and Appellant at Appellant’s house and left.

James had been shot several times, but he managed to drive away from the pool house area toward the east side of the community. Minutes later, a teenager called 911 to report that a man was yelling for help, saying he had been shot, and banging on the front door of the teenager’s home and neighbors’ homes. Responding officers found James lying in the grass with a garden hose running water over his bleeding wounds. His car was stopped in the middle of the street with the engine still running; the car had blood and bullet holes in it. James told the officers that he had been shot near the bridge and the lake, which were next to the pool house. He asked the officers for his cell phone, indicating that it would have information about the shooter on it, but the officers could not find the cell phone at that time. James was taken to a hospital, but soon died. The police found about $1,300 in cash in James’s belongings at the hospital.

Eight days later, police officers arrested McCammon and Clemons as they were driving away from a house that they had just burglarized. In an interview with the police, McCammon admitted that he had sold stolen televisions to James and that James had called him later that day to get a refund for the television that was too small. After telling the police a variety of stories, Clemons confessed to his, Appellant’s, and McCammon’s involvement in the murder.

[About two weeks after the murder, detectives interviewed Appellant at the police station. He denied any knowledge of the murder and claimed that he was not home that evening but instead was in Riverdale, approximately 20 to 30 miles away from the Ellington community. He also initially denied knowing anything about the gun used in the murder. Eventually, however, Appellant admitted knowing where the gun was located. He then took the detectives to his brother’s home to retrieve the gun – a .45-caliber pistol – which he had hidden behind a washing machine. Appellant also admitted buying a 9mm handgun that he knew was stolen. The same day Appellant was interviewed, the police searched his home and car. They found the stolen 9mm handgun, cocaine, baggies, a baggy sealer, and a scale.]

According to Clemons, he and McCammon were in jail in adjoining cells and were talking when McCammon slid a one-page, handwritten document under the door to Clemons. On the front of the document was an affidavit stating (falsely) that Clemons had stolen the murder weapon from Appellant’s house without Appellant’s knowledge. On the back was a note indicating that Appellant wanted McCammon to sign the affidavit, but that McCammon was not going to do that. Clemons believed that Appellant wrote the affidavit and that McCammon wrote the note on the back.⁴

Clemons later entered a negotiated guilty plea to conspiracy to commit murder, attempted armed robbery, aggravated assault, and a gun crime, for which he was sentenced to serve a total of 10 years in prison followed by 25 years on probation. In exchange, Clemons testified for the State at McCammon’s and Appellant’s joint trial.

At the trial, the medical examiner who performed James’s autopsy testified that James suffered five gunshot wounds – four to the left side of his torso and one to his right leg. Two of the wounds to his lower torso caused severe and ultimately fatal internal bleeding. Bullets recovered from James’s body and from the crime scene matched the [.45-caliber] gun that Appellant had hidden at his brother’s house. Cell phone records showed that McCammon’s and James’s phones called each other three times just minutes before the murder, that McCammon’s and Appellant’s phones were in the Ellington community area at the time of the murder, and that – although McCammon and Appellant had no phone contact in the 11 days before the murder – McCammon’s phone communicated with Appellant’s phone 36 times throughout the eight days between the murder and McCammon’s arrest.

Appellant did not testify.

McCammon v. State , 306 Ga. 516, 517-519, 832 S.E.2d 396 (2019) (bracketed paragraph added to include evidence specific to Appellant).

Appellant does not dispute the legal sufficiency of the evidence supporting his convictions. Nevertheless, as is 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 of which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; McCammon , 306 Ga. at 520, 832 S.E.2d 396. 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)).

2. Appellant contends that his trial counsel provided ineffective assistance in three ways. To prevail on these claims, Appellant must prove that his counsel’s performance was professionally deficient and that he was prejudiced as a result. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish deficient performance, Appellant must show that counsel 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, 104 S.Ct. 2052 ; Davis v. State , 299 Ga. 180, 182-183, 787 S.E.2d 221 (2016). " ‘[A] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.’ " Stripling v. State , 304 Ga. 131, 138, 816 S.E.2d 663 (2018) (citation omitted). To establish prejudice, Appellant must show "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. "We need not review both elements of this test if the appellant fails to prove one of them." Stripling , 304 Ga. at 138, 816 S.E.2d 663.

(a) Appellant first argues that his trial counsel provided ineffective assistance by failing to file a motion to suppress his statements that led the police to the murder weapon. Appellant asserts that his incriminating statements during his police interview were involuntary and inadmissible under OCGA § 24-8-824 because they were induced by a "hope...