Washington v. State

313 Ga. 771

873 S.E.2d 132

WASHINGTON

v.The STATE.

S22A0322

Supreme Court of Georgia.

Decided: May 17, 2022

Richard Carter Armond, The Armond Firm, LLC, 260 Constitution Boulevard, Lawrenceville, Georgia 30046, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Ashleigh Dene Headrick, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Patsy A. Austin-Gatson, District Attorney, Clifford Louis Kurlander, A.D.A., Lee Franklin Tittsworth, A.D.A., Gwinnett County District Attorney's Office, 75 Langley Drive, Lawrenceville, Georgia 30046, for Appellee.

Nahmias, Chief Justice.

Appellant Tremaine Washington was convicted of malice murder and other crimes in connection with the shooting death of Robert Jesse Purcell. In this appeal, he contends that (1) the trial court erred by merging, instead of vacating, the counts of felony murder and aggravated assault when sentencing him, (2) his trial counsel provided ineffective assistance in numerous ways, (3) the trial court violated his constitutional right to a trial by jury by allowing the jury to deliberate without all of the evidence, and (4) the trial court denied his constitutional right to be present during trial by conducting a hearing about sending exhibits to the jury room after he left the courtroom. For the reasons explained below, we affirm.¹

1. Purcell, a homeless man who slept in his car behind the pizza restaurant in Snellville where he worked, was shot and killed in his car in the early morning hours of May 27, 2016. On the afternoon of May 28, after Purcell failed to show up at work, the police found his car abandoned on a highway exit ramp with his body in the trunk.

The evidence against Appellant, which was overwhelming, included the following. A woman who lived with Appellant's best friend testified that on the morning of May 27, she overheard Appellant tell his friend that, when attempting to rob a man who was sleeping in his car the night before, Appellant shot and killed the man, then stole his car, cell phone, and a few dollars. The next morning, May 28, the woman watched Appellant clean out Purcell's car in her driveway – seeing Purcell's name on mail removed from the glove compartment – and overheard Appellant tell his friend that the body of the man he shot was in the trunk. She also heard Appellant use Purcell's cell phone to call Purcell "off of work" at the pizza restaurant.

A neighbor who lived across from Appellant testified that on the morning of May 28, he saw Appellant scrubbing the back seat of Purcell's car and taking a basket of clothes out of the car. The basket, which was later found during a search of Appellant's house, contained a comforter with a bullet hole and a stain that tested positive for Purcell's blood, Purcell's driver's license, and several tshirts from the restaurant where Purcell worked. Eleven fingerprints were found on Purcell's car, nine of which matched Appellant. Surveillance video recordings showed Appellant near where the murder occurred and where the car was abandoned at the relevant times, and a video recording from a Kroger store showed that Appellant and his friend Tye Stewart were in the store on the afternoon of May 28 when an ecoATM² recorded Stewart selling Purcell's cell phone.

On May 29, officers arrested Appellant in the woods behind his friend's house after a brief chase. They later found a gun near where he was arrested, which ballistics testing confirmed was the murder weapon. Appellant was interviewed after his arrest. He gave multiple stories, but ultimately confessed that he shot and killed Purcell, then stole Purcell's car and a few dollars, before later abandoning the car on the highway exit ramp.³ A review of Purcell's, Stewart's, and Appellant's cell phones showed that the default e-mail on Purcell's phone was changed to Appellant's e-mail address after the murder, Purcell's phone sent a number of text messages to Stewart's phone the next afternoon, and Appellant's phone sent numerous text messages referring to the crimes.

2. Appellant contends first that the counts of felony murder and aggravated assault, which the trial court merged for sentencing purposes, should instead be vacated. The State correctly concedes that the counts of felony murder should have been vacated rather than merged. See Manner v. State , 302 Ga. 877, 890-891, 808 S.E.2d 681 (2017) ("Because the verdicts for malice murder and felony murder involved the same victim, the felony murder verdicts are vacated by operation of law."). But while "the trial court's nomenclature was incorrect, the error does not affect [Appellant]’s sentence," so "there is no sentencing error to correct." Id. at 891, 808 S.E.2d 681. And the aggravated assault count was properly merged into the malice murder conviction. See id. ("The court properly merged the aggravated assault [count] into the malice murder verdict, as those two counts of the indictment were both premised on the act of shooting [the victim]."). Thus, this enumeration fails.

3. Appellant next raises multiple claims that his trial counsel provided ineffective assistance. To succeed on these claims, Appellant must show that his counsel's performance was professionally deficient and that he suffered prejudice as a result. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish that counsel's performance was deficient, "Appellant must demonstrate that the lawyer performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms." Davis v. State , 299 Ga. 180, 182-183, 787 S.E.2d 221 (2016).

This is no easy showing, as the law recognizes a "strong presumption" that counsel performed reasonably, and Appellant bears the burden of overcoming this presumption. To carry this burden, he must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not. In particular, "decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course."

Id. at 183, 787 S.E.2d 221 (citations omitted). To prove prejudice, Appellant must demonstrate that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. See id. (citing Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ). If Appellant fails to make a sufficient showing on one part of the Strickland test, we need not address the other part. See id. As we will explain, Appellant has not established that his trial counsel provided ineffective assistance.

(a) Failure to give an opening statement.

Appellant's first claim consists of a single sentence in his brief: "Trial counsel failed to even give an opening statement." This claim was not preserved for appellate review, because Appellant failed to raise it in his amended motion for new trial, at which time he was represented by new counsel. See Moore v. State , 311 Ga. 506, 513, 858 S.E.2d 676 (2021). In any event, trial counsel explained at the motion-for-new-trial hearing that he had difficulty formulating a defense theory due to the State's strong evidence and Appellant's changing story. It was not unreasonable for counsel to waive his opening statement to allow him to tailor his defense and arguments to the evidence presented. See Lawrence v. State , 286 Ga. 533, 534, 690 S.E.2d 801 (2010) (holding that trial counsel's decision not to give an opening statement in order to "leave the door open" to pursue whatever defense strategy would be most advantageous after hearing the State's evidence was "a reasonable strategic decision [that] does not amount to ineffective assistance" (punctuation omitted)).

(b) Failure to object to surveillance recordings.

Appellant contends that his trial counsel was ineffective for failing to object to the admission of surveillance video recordings from a Shell gas station, which placed Appellant near where Purcell's car was abandoned, and the images and transaction recorded by the ecoATM in the Kroger store during the sale of Purcell's cell phone. Appellant argues that the recordings were not properly authenticated because the witnesses through which they were admitted – a computer forensics investigator with the district attorney's office for the gas station videos and John Cleland, the lead detective on the case, for the ecoATM images and transaction record – lacked personal knowledge of the proper functioning of the security camera system and the ecoATM.

But even assuming that the State failed to establish a proper foundation for these exhibits,

[Appellant]’s claim of ineffective assistance fails because he does not argue, much less demonstrate, that the State could not have provided additional foundational support for the admission of the [exhibits] if his counsel had objected. And as this Court previously held, "refraining from objecting to foundational matters that can be readily cured is not an unreasonable strategy."

Vivian v. State , 312 Ga. 268, 273, 862 S.E.2d 138 (2021) (citation omitted). See also Hayes v. State , 298 Ga. 98, 105, 779 S.E.2d 609 (2015) ("[Appellant] did not produce any evidence that the witness who was questioned about the exhibit would have been unable to correct any deficiency in the foundation respecting the [exhibit], or that another witness could not be readily procured to do so, and thus fails to establish either prong of the required test for ineffective assistance of counsel."). Thus, Appellant has failed to show that trial counsel acted deficiently by failing to object to the gas station surveillance videos and ecoATM images and transaction record on foundation grounds.⁴

(c) Failure to object to the lead detective's restating...