Young v. State

317 Ga. 57

891 S.E.2d 827

YOUNG v. The STATE.

S23A0518

Supreme Court of Georgia.

Decided: August 21, 2023

Eliot Jay Abt, Abt Law Firm, P.C., Suite 525, 2295 Parklake Drive, Atlanta, Georgia 30345, Katie Alice Hingerty Borodin, General Counsel, The Hingerty Law Firm, LLC, 2295 Parklake Drive NE, Suite 525, Atlanta, Georgia 30345, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Michael Alexander Oldham, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Rindi L. Harbeson, Chief A.D.A., William Patrick Doupé, District Attorney, Terry L. Lloyd, Toombs Judicial Circuit District Attorney's Office, P.O. Box 966, Thomson, Georgia 30824, for Appellee.

McMillian, Justice.

In May 2021, a jury found Tomarkus Mikhail Young guilty of felony murder and other charges in connection with the shooting death of Richard Anderson. ¹ On appeal, Young asserts that the evidence was constitutionally insufficient to support his convictions; that the trial court erred in denying his motion to strike a potential juror; that he received ineffective assistance of counsel; and that cumulative errors require the grant of a new trial. For the reasons that follow, we conclude these assertions lack merit and affirm.

Viewed in the light most favorable to the jury's verdict, the evidence at trial showed that on February 23, 2018, Anderson purchased a .40-caliber handgun, which he showed to several people gathered at a barbershop. When Young saw the handgun, he offered to purchase it. Anderson told him it was not for sale but that he had another gun he could sell. Two days later, a group of people were gathered outside at a local "bootlegger's" house in Wilkes County. Young shot dice and drank alcohol with his friends near the gated entrance to the house. At one point, Anderson pulled up in his car and approached the group, looking to purchase marijuana. Anderson also told the group that he had a handgun to sell. He showed them the handgun after demonstrating that it was not loaded. Anderson and Young then got into Anderson's car together, but after Young exited the vehicle followed by Anderson, Young, who was wearing a hoodie with a front pocket, pulled out a handgun from either his pocket or waistband area and shot and killed Anderson.

After Anderson's death, Young's friend, Kijuan Vance, agreed to speak with GBI Special Agent Austin Bradshaw and stated that on the night of the shooting he was among the group of people gathered outside the bootlegger's house, where he saw Young sitting with Anderson in Anderson's car. Young then got out of the car and announced that he was taking Anderson's gun. Anderson followed after Young, and it appeared to Vance that Anderson, who was unarmed, was trying to get his gun back from Young. Young pulled something out of his pocket and pointed it at Anderson. Vance said he looked away because he "knew what was about to happen," heard a gunshot, and turned back to see Anderson on the ground. Everyone gathered there, including Vance, immediately ran or drove away after hearing the gunshot. When Vance mentioned to the agent that he and Young had spoken shortly before the shooting that evening, Agent Bradshaw asked Vance to take a photograph of his phone's call log. Vance agreed, and Agent Bradshaw was able to determine that Vance's phone had been in contact with someone saved as "Thrax" several times during the evening of the shooting. ²

Raiquan Davis, another of Young's friends who was present on the night of the shooting, testified that he saw Young shoot Anderson in the chest while Anderson was unarmed. It looked to him that Anderson was trying to get his gun back from Young, who was also holding his own gun. Davis admitted that he initially lied to GBI agents several times to protect Young but decided to testify because it was "the right f**king thing to do." Terrance Zellars, who was dating Young's sister at the time, testified that the morning after the shooting, Young told him that he "went to the spot last night and sh** went south" and "I'm not playing with anybody anymore, if they roll they're fixing to get it." Zellars saw that Young had a handgun with him at that time.

Officers who responded to the scene found Anderson lying on the street, deceased from an apparent gunshot wound. GBI Special Agent Carl Murray was called to assist with processing the crime scene and recovered a gold cell phone about 30 feet from Anderson's body. He also recovered an empty gun holster, an empty Kahr Firearms box, .40-caliber ammunition, and a black cell phone from inside Anderson's car. Although the gold cell phone was locked, officers were able to identify its number and link that phone number to Young. After Anderson's girlfriend shared Anderson's password, officers were able to unlock the black cell phone found in his car and identified Young's cell phone number in his contacts under the name "Trax."

Officers arrived at Young's residence the following morning. Young agreed to speak with officers after being advised of his rights under Miranda , ³ and a recording of this interview was played for the jury. Young admitted seeing Anderson at a barbershop a few days before, but denied talking about a gun and denied being at the bootlegger's house on the night of the shooting.

During a search of Young's house, officers recovered a 9mm Glock pistol in a chair on the front porch, as well as a .380 Lorcin pistol and a box of .380-caliber full-metal jacket ammunition from the bedroom belonging to Young's mother. During a second search of Young's home, officers recovered a sweat shirt with a hoodie and a front pocket and sweat pants in Young's room that was similar to what a witness had described Young wearing on the night of the shooting.

The owner of a pawn shop in nearby Thomson, Georgia testified that he sold Anderson a Kahr CT .40-caliber handgun on February 23, 2018, and a Hi Point .45-caliber handgun on March 22, 2017. Neither gun was ever recovered. After testing, a GBI firearms examiner was only able to determine that the bullet recovered from Anderson's autopsy was a .380-caliber full-metal jacket bullet and that it was not consistent with having been fired from either gun recovered from Young's home. The medical examiner who performed the autopsy testified that Anderson died from a single gunshot wound to the right side of his chest. There was no evidence of stippling, indicating that Anderson had been shot from a distance of greater than three feet.

1. Young contends that the evidence was insufficient as a matter of constitutional due process to support his convictions because the State's evidence was speculative and many of the witnesses admitted to lying to investigators.

When this Court evaluates the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis omitted). So viewed, we conclude that the evidence was constitutionally sufficient to support Young's convictions for felony murder and possession of a firearm during the commission of a felony.

Multiple witnesses testified that Young was at the scene on the night of the shooting. Several witnesses testified that Young had previously approached Anderson about purchasing his handgun and that Anderson declined. One eyewitness told officers that Young pointed a weapon at Anderson, who appeared unarmed, immediately before he heard a gunshot and ran. A second eyewitness testified that he saw Young shoot Anderson. Young abandoned his cell phone at the scene, made incriminating statements the following morning, and lied to officers about being at the scene of the shooting.

Even though Young points to inconsistencies in the witnesses’ testimony to argue that the evidence was insufficient, it is well established that any conflicts in the evidence were for the jury to resolve. See McIntyre v. State , 312 Ga. 531, 531 (1), 863 S.E.2d 166 (2021) ("This Court does not reweigh evidence or resolve conflicts in testimony; instead evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence." (citation and punctuation omitted)). Accordingly, this enumeration of error fails. ⁴

2. Young also argues that the trial court should have excluded Juror No. 22, a potential juror who was employed at the Wilkes County jail, for cause. "Striking a juror for cause is a matter committed to the sound discretion of the trial court, and no error will be found absent a showing that the discretion was manifestly abused." Stephens v. State , 309 Ga. 447, 451 (2), 847 S.E.2d 139 (2020) (citation and punctuation omitted).

The record shows that during the first morning of voir dire, the entirety of which was not transcribed, the trial court questioned Juror No. 22, who responded that she worked in the Wilkes County jail, where Young had been housed waiting for trial, but that she was not a POST-certified officer with arrest powers. Young's counsel argued that "she's aware of my client's custody position" and some other charges in relation to a fight in the jail, which counsel thought "would be very prejudicial," meaning that she should be struck for cause. The trial court explained that it would keep Juror No. 22 "in the panel for right now," but noted that if defense counsel found authority for his argument that she should be struck for cause, the court would address the argument again.

Although not transcribed, it appears that during the parties’ subsequent jury selection at the end of the day, Young struck Juror No. 22 with one of his nine peremptory...