Smith v. State

313 Ga. 752

873 S.E.2d 142

SMITH

v.STATE.

S22A0271

Supreme Court of Georgia.

Decided: May 17, 2022

Benjamin A. Davis, Jr., 3455 Peachtree Road, Suite 500, Atlanta, Georgia 30326, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Parisia Faith Sarfarazi, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Gregory W. Edwards, District Attorney, Dougherty County District Attorney's Office, P.O. Box 1827, Albany, Georgia 31702, Jeremy R. Hager, A.D.A., Dougherty County District Attorney's Office, 225 Pine Avenue, Room 231, Albany, Georgia 31702, Harold Ronald Moroz, A.D.A., Dougherty County District Attorney's Office, 539 N Westover Blvd, Apt 321, Albany, Georgia 31707, for Appellee.

McMillian, Justice.

Tracy LaShawn Smith appeals his conviction for felony murder in connection with the death of Jerome Walden.¹ On appeal, Smith asserts that the trial court erred in overruling his special demurrer to the felony murder charge. He further argues that the trial court erred in failing to grant a new trial on his claims of constitutionally ineffective assistance of trial counsel, based on counsel's failure to (1) object to the verdict form and the trial court's jury instruction on felony murder, which Smith contends allowed the jurors to render a potentially non-unanimous verdict; (2) file a general demurrer as to the felony murder count; and (3) file a plea in bar on the ground that Smith was not re-tried within the time period required by his statutory speedy trial demand. We affirm for the reasons discussed below.

The evidence presented at trial showed that on or about June 22, 2011, Smith sold Walden $30 worth of crack cocaine and a pack of cigarettes "on credit." Two days later, on the night of June 24, Demarcus Dontravious Lewis was riding with Smith and Calvin Sharmond Brooks when Smith told the others that he was going to collect the money Walden owed him. Lewis said that the three drove to Melissa Moncrief's house to find Walden, and Smith knocked on the door. Walden was at Moncrief's house, and when Smith asked for his money, Walden said he did not have it. Smith left briefly but then returned and knocked again. Walden again said he did not have the money and shut the door. Lewis said that Smith went to the side of Moncrief's house and grabbed a board with nails in it on his way to Moncrief's back door.

As Smith entered Moncrief's house carrying the board, Walden ran out the front door and down an alley beside the house. Brooks and Lewis pursued Walden. When they caught up to Walden, Lewis hit him and knocked him down. According to Lewis, both he and Brooks then kicked Walden. Smith arrived on the scene, and Lewis said Smith used the board to beat Walden "from his stomach to his head." A witness who was in the vicinity at the time saw someone lying in the alley with two men standing over him – Smith and a person the witness knew as "Wocka-Flocka."² The witness said that Wocka-Flocka was kicking the person on the ground, and Smith was beating the person with a board.

Moncrief testified that, while inside her house, she could hear the sounds of someone being beaten outside and told her sister to call 911. When Moncrief went outside to check on Walden, she saw Lewis jumping up and down on Walden in the alley. As Smith and the others began to leave, Moncrief asked about Walden, and Smith replied, "Oh, we just knocked that n****r out." Smith and the others then left Walden in the alley. Walden never regained consciousness and later died from what the medical examiner described as "complications of blunt force injuries of the head."

1. Smith first contends that the trial court erred by overruling his special demurrer, asserting that Count 1 of the indictment alleging felony murder was duplicitous because it was predicated on the commission of aggravated assault "and/or" aggravated battery. "We review [the trial court's] ruling on [Smith's] special demurrer de novo to determine the legal sufficiency of the allegations in the indictment." Bullard v. State , 307 Ga. 482, 486 (2), 837 S.E.2d 348 (2019).

"An [indictment] is duplicitous if it joins separate and distinct offenses in one and the same count. ‘Duplicity’ is the technical fault in pleading of uniting two or more offenses in the same count of an indictment." State v. Boyer , 270 Ga. 701, 703 (2), 512 S.E.2d 605 (1999) (citations and punctuation omitted). However, "[t]he longstanding rule in Georgia is that an indictment may take the form of a single count which contains alternative allegations as to the various ways in which the crime may have been committed." Dugger v. State , 297 Ga. 120, 123 (5), 772 S.E.2d 695 (2015) (citation and punctuation omitted). See also Morris v. State , 280 Ga. 179, 181 (3) (b), 626 S.E.2d 123 (2006) ("This court has long held that where one offense could be committed in several ways, it is permissible to incorporate the different ways in one count." (punctuation omitted) (quoting Leutner v. State , 235 Ga. 77, 79 (2), 218 S.E.2d 820 (1975) ).

Count 1 of the indictment charged Smith with felony murder "for that the said accused ... while in the commission of the offense of aggravated assault, a felony, and/or aggravated battery, a felony, did, acting jointly and in concert with another as parties to the crime thereto, cause the death of Jerome Walden[.]" Smith filed a special demurrer to the indictment, asserting that the felony murder count was defective because it charged multiple offenses – felony murder based on aggravated assault and felony murder based on aggravated battery – in the same count and citing OCGA § 16-1-7 (a) (2).³ The trial court denied the special demurrer at a subsequent hearing on the matter.

Contrary to Smith's argument, Count 1 of the indictment charged Smith with only one offense – the unlawful killing of Walden during the commission of a felony in violation of OCGA § 16-5-1 (c).⁴ Although it alleged alternate ways that the crime of felony murder was committed, i.e., during the commission of aggravated assault and/or during the commission of aggravated battery, such an allegation is proper under Georgia law. Therefore, the trial court correctly determined that Count 1 was not subject to a special demurrer on the ground of duplicity. See Lumpkins v. State , 264 Ga. 255, 256 (1), 443 S.E.2d 619 (1994) (recognizing that it is permissible to charge felony murder in one count of an indictment, "which alternatively alleged the underlying felonies"). Cf. Leutner , 235 Ga. at 79 (2), 218 S.E.2d 820 (indictment not subject to special demurrer where it incorporated elements of both malice murder and felony murder under former Ga. Code Ann. § 26-1101 in one count (now codified at OCGA § 16-5-1 (a) (malice murder) and 16-5-1 (c) (felony murder))).

2. Smith also asserts that the trial court erred in failing to grant a new trial based on his three claims of ineffective assistance of trial counsel.

To establish these claims of constitutionally ineffective assistance of counsel, Smith must show both that his trial counsel's performance was deficient and that he suffered prejudice as a result. See Strickland v. Washington , 466 U.S. 668, 687 (III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "An appellant must prove both prongs of the Strickland test, and if he fails to prove one prong, it is not incumbent upon this Court to examine the other prong." Winters v. State , 305 Ga. 226, 230 (4), 824 S.E.2d 306 (2019) (citation and punctuation omitted).

To establish deficient performance, an appellant must overcome the strong presumption that his counsel's conduct falls within the broad range of reasonable professional conduct and show that his counsel performed in an objectively unreasonable way in light of all the circumstances and prevailing norms.

Hughes v. State , 312 Ga. 149, 153-154 (2), 861 S.E.2d 94 (2021) (citation and punctuation omitted). To establish the prejudice prong, Smith must show "there is 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 (III) (B), 104 S.Ct. 2052.

(a) Smith asserts that his trial counsel's performance was deficient because he failed to object to the trial court's jury instruction on the charge of felony murder and to the general verdict form provided to the jury, which he contends allowed the jury to return a potentially non-unanimous verdict on felony murder. See Ramos v. Louisiana , ––– U.S. ––––, 140 S.Ct. 1390, 1397, 206 L.Ed.2d 583 (2020) (holding that the jury unanimity requirement under the Sixth Amendment to the United States Constitution applies to state and federal criminal trials equally); Richardson v. United States , 526 U.S. 813, 824 (II) (B), 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) (holding that the jury must agree unanimously about which specific violations made up "the continuing series of violations" required for conviction under former 21 USC § 848 (a) based on a statute-specific analysis of the unanimity requirement).

Smith contends that his trial counsel should have objected to the following portion of the trial court's final instruction to the jury:

If you find and believe beyond a reasonable doubt that [the] defendant committed the homicide alleged in this bill of indictment at the time [the] defendant was engaged in the commission of the felony of aggravated assault or aggravated battery, then you would be authorized to find the defendant guilty of murder, whether the homicide was intended or not.

He further asserts that his trial counsel should have objected to the jury's use of a general verdict in considering the felony murder count.⁵ He argues that the instruction and the verdict form allowed the jurors to convict him of felony murder even if they were not in unanimous agreement on the underlying felony upon...