Appellant Jelani Asim Anthony was convicted of malice murder and possession of a firearm during the commission of a crime.
I.
In the light most favorable to the verdicts, the evidence presented at trial shows the following. Late one night, Eric Scales drove a burgundy Toyota Highlander into the Wyndcliff Apartment complex with appellant Jelani Anthony in the passenger seat. Anthony got out of the SUV, walked over toward the curb and shot Warren Broadnax eight times with a .40 caliber Sig Sauer semi-automatic pistol. Anthony then got back into Scales’s car, and the two drove away Broadnax died from the gunshot wounds.
Roommates Redd Coker and Brandon Love were living in an apartment at Wyndcliff with a sliding door that faced a parking lot. On the night Broadnax was murdered, Coker had just returned from work when he saw headlights flash across his sliding door. Thinking that the headlights might belong to his girlfriend’s car, Coker looked out the sliding glass door of his balcony and watched as a man got out of a dark colored SUV. Coker and Love then heard ten to fifteen gunshots. From the same sliding glass door, Coker watched as a person walked back to the SUV while putting a gun in his waistband. When the SUV door opened, the interior lights came on and illuminated the person’s face. As a result, Coker got a good look at the shooter before the SUV drove away. Coker would later identify the shooter as Anthony
After the SUV left, Coker and Love went outside and found Broadnax. Coker called 911, but left the scene before officers arrived because he had an outstanding arrest warrant for violating his probation. Police arrived and found Broadnax, who was bleeding heavily from multiple gunshot wounds. Detective Ron Waddell recovered the victim’s cell phone and called the numbers listed in the recent call log. Detective Waddell spoke to people associated with every number except for one — a number listed simply as V-A. In an attempt to identify the person listed as V-A, Detective Waddell spoke to a woman who was a resident at Wyndcliff and who had previously allowed Broadnax to find shelter in her apartment when he was in the complex parking lot without another place to go. The resident reported that a young man driving a burgundy Toyota Highlander attempted to pick her up in the parking lot on the night of Broadnax’s murder. The young man gave her a phone number, which she kept. That phone number matched the number listed as V-A in Broadnax’s phone. After speaking to another resident, Detective Waddell determined that the man who spoke to the resident was Eric Scales. In the meantime, Atlanta police located a burgundy Toyota Highlander that had been reported stolen. Inside the SUV, they found personal property belonging to Broadnax and a security guard uniform with the name E. Scales.
Detective Waddell obtained a court order for the subscriber information, call details, and cell tower information for Scales’s cell phone number. Detective Waddell learned that Scales had made multiple calls to Broadnax; the two men appeared to speak almost daily More importantly, cell tower information showed that Scales’s cell phone was near the murder scene the night Broadnax died. Scales had not called Broadnax since the murder.
Through a series of leads, Detective Waddell obtained a second court order for information relating to another phone number, which turned out to be Anthony’s. The cell phone records showed that Scales’s phone had stopped near Anthony’s residence the night of the murder. Then both Scales’s cell phone and Anthony’s cell phone traveled to the Wyndcliff apartments at about the time Broadnax was killed. Anthony’s cell phone was turned off while he was at the apartment
Coker agreed to come to the police station and try to identify the man he saw in the parking lot on the night Broadnax was murdered. Detective Waddell assured Coker that if he came to the station he would not be arrested on his outstanding probation warrant at that time. Coker agreed, and a detective who was not involved in the investigation, Detective Turner, conducted the photographic lineup with Coker. Detective Turner and Coker went through two sequential lineups.
Police then arrested Anthony, who provided a statement after he was advised of his Miranda rights. In his statement, Anthony admitted that he owned a .40 caliber Sig Sauer semi-automatic pistol. He admitted that he was friends with Scales, and that he knew Broad-nax. Anthony confessed to being with Scales the night Broadnax was murdered, but insisted that he had gone to a different, apartment complex than the one where the murder took place. When confronted with the evidence that his cell phone was at Wyndcliff, Anthony hedged that he knew Scales was driving the burgundy Toyota Highlander, but still denied being in the car at the time of the crime. When informed that a witness had identified him as being in the Wyndcliff parking lot at the time of the crime, Anthony said “maybe” he had been there, but maintained that he was nothing more than a passenger in Scales’s SUV.
Scales, for his part, testified that he shot Broadnax in self-defense. In Scales’s version of events, Broadnax and another man, identified only as Little C, were in his SUV at the Wyndcliff Apartments. Broadnax found a gun inside the SUV and pointed it at Scales. Scales then wrestled the gun away from Broadnax and shot him with it.
At trial, a jury found Anthony guilty of malice murder among other crimes, and Anthony filed a motion for new trial, which he later amended. The trial court denied his motion. We note that three different attorneys have represented Anthony. First, trial counsel — who conducted the trial and filed the first motion for new trial. Next, post-trial counsel — who amended the motion for new trial, conducted the motion for new trial hearing, and then filed the first notice of appeal. Finally, appellate counsel — who filed an amended notice of appeal and the briefs before this Court and currently represents Anthony
Although Anthony does not challenge the sufficiency of the evidence, we find that the evidence was sufficient for a rational trier of fact to find Anthony guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia,
II.
Anthony’s first contention is that the trial court erred by refusing to suppress evidence of Coker’s identification of Anthony as the shooter because the photographic lineup was flawed.
At trial, Detective Turner testified that he conducted two sequential lineups with Coker. Anthony objected and asked to approach the bench. During a bench conference conducted outside the presence of the jury, Anthony contended that in discovery the State had provided him with a single six-pack style lineup and not with any individual pictures from sequential lineups. When the State tendered the sequential lineups into evidence, Anthony again objected that the State did
The objection that Anthony now raises is different, from the one he raised in his motion to suppress or at trial. Anthony’s sole objection at trial was based on his belief that he had not been provided with the sequential lineup pictures during discovery Anthony’s counsel subsequently informed the trial court that the State had provided a copy of the sequential lineup pictures. He made no further objections to the lineup identification evidence. In order to preserve an objection for appellate review, the specific ground of the objection must be made at the time the challenged evidence is offered. Hurt v. State,
III.
Anthony’s next contention is that the trial court erred in failing to grant his motion for new trial. Anthony claims that he introduced new evidence of an undisclosed police suspect, Anthony Carmon, who was the subject of a “Be On the Lookout” (“BOLO”) bulletin created by Detective Waddell. Anthony mounts a two-pronged attack based on the BOLO. First, he asserts that the BOLO bulletin for Carmon fits the statutory parameters for a new trial based on newly discovered evidence under OCGA § 5-5-23.
A. The standard for granting a new trial based on newly discovered evidence is well established. A party who asks for a new trial based on newly discovered evidence must satisfy the court:
(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.
Wimberly v. State,
At trial, Anthony testified for the first time that a man named “Little C” was in Scales’s SUV the night of the murder — neither he nor Scales had ever mentioned Little C to police before — and that he himself exited the SUV after Scales and Little C started smoking marijuana inside. Scales’s testimony was somewhat different; he contended that Little C was already at the Wyndcliff apartments on the night of the murders. Scales testified
On appeal, Anthony contends that the BOLO for Carmon is relevant because Carmon is Little C, and the BOLO demonstrates that police must have suspected that Little C was the shooter or was involved in the murder. Because the Carmon BOLO was not introduced at trial, Anthony now presumes that trial counsel did not know about it. But there is no indication, other than Anthony’s own speculation, that the BOLO was not provided to Anthony’s trial counsel during discovery. It was Bates stamped, and he has provided no explanation of where it might have come from other than the original case file. The mere fact that trial counsel did not use it during trial does not establish that it was not available.
And in any event, the BOLO is not so material that it would have produced a different outcome at trial. As an initial matter, until now, Anthony has never suggested that Little C was Carmon. But even assuming that Little C and Carmon are the same person, neither Anthony nor Scales claimed that Little C was the shooter. None of the other witnesses testified to seeing a third person in the SUV on the night of the murder. Thus — even if the jury believed Scales and Anthony that a third person was present and that Little C was Carmon — the jury never heard any testimony that Little C was the shooter. Consequently, there is no likelihood that the jury would have produced a different, verdict had it known of the Carmon BOLO. We therefore conclude that Anthony is not entitled to a new trial based on newly discovered evidence.
B. Anthony maintains that the State’s failure to produce the BOLO prior to his trial also constituted a Brady violation.
We first note that Anthony did not raise this issue at trial or as a part of his motion for new trial. Because he has raised his Brady claim for the first time on appeal, Anthony has waived the right to raise this objection on appeal. Pierce v. State,
Four factors must be present to establish a Brady violation:
(1) the State, including any part of the prosecution team, possessed evidence favorable to the defendant; (2) the defendant did not possess the favorable evidence and could not obtain it himself with any reasonable diligence; (3) the State suppressed the favorable evidence; and (4) a reasonable probability exists that the outcome of the trial would have been different had the evidence been disclosed to the defense.
State v. James,
As previously mentioned, there is no evidence that Anthony’s trial counsel did not possess the BOLO prior to trial. The fact that trial counsel did not refer to Carmon at trial does not establish that the State failed to disclose the BOLO, or that the State actively suppressed it. Nor is there any probability that the outcome of the trial would have been any different, with the BOLO. Anthony’s Brady claim fails.
IV.
Anthony contends that his trial counsel was ineffective in a myriad of ways. Specifically, Anthony contends that his trial counsel failed to effectively investigate the lineup method and failed to cross-examine Detectives Turner and Waddell effectively about inconsistencies in the lineup method.
We have recognized that our evaluation of ineffective assistance claims is controlled by the standard established by the Supreme Court of the United States in Strickland v. Washington,
Anthony contends that trial counsel rendered ineffective assistance by failing to investigate Carmon as a potential witness involved in the incident. A failure to adequately investigate a case may indeed constitute ineffectiveness. See, e.g., Zant v. Hamilton,
Here, Anthony bases his ineffective assistance claim on trial counsel’s failure to investigate Carmon. But at trial Anthony failed to claim that Carmon and Little C were the same person. Nonetheless, trial counsel attempted to cast doubt on Anthony’s involvement in the crime and on the completeness of the police investigation by questioning witnesses about Little C. And Anthony did not show that Carmon, who did not testify at the motion for a new trial hearing, would have been a relevant witness. Instead, the evidence presented at the motion for new trial hearing indicated that Carmon was not a suspect in the crime. The evidence thus supports the trial court’s conclusion that Anthony did not meet his burden to show ineffective assistance of counsel in this regard. See Lupoe v. State,
Anthony also contends that trial counsel was ineffective when he failed to conduct effective cross-examination of Detective Waddell. Anthony appears to believe that trial counsel permitted Detective Waddell to speculate about Anthony’s perceived motive to murder a man whom he had never met. At trial, Detective Waddell’s testimony indicated that as far as he could tell, Anthony was taking care of some business for Scales. Trial counsel followed up with several questions emphasizing the lack of prior connection between the victim and Anthony
Trial counsel’s tactical decisions about cross-examination will not constitute ineffective assistance unless they are so patently unreasonable that no competent attorney would have chosen that approach. Romer v. State,
V.
In addition to his arguments regarding trial counsel, Anthony contends that his post-trial counsel was ineffective in a variety of ways, including the failure to subpoena trial counsel, failure to develop a record surrounding the Carmon BOLO, and, in general, because of her subsequent disbarment.
To preserve the issue of ineffective assistance of post-trial counsel, Anthony’s appellate counsel had to “raise the issue at the earliest practicable opportunity of post-conviction review or the issue is waived.” Ruiz v. State,
Lastly, the fact that post-trial counsel was subsequently disbarred
In sum, we affirm Anthony’s convictions and find that Anthony has failed to meet his burden to show that his trial counsel or post-trial counsel rendered ineffective assistance.
Judgment affirmed.
Notes
On December 2, 2011, a Cobb County grand jury indicted Anthony and his co-defendant Eric Scales for malice murder, felony murder, aggravated assault, and three counts of possession of a firearm during the commission of a crime in connection with the shooting death of Warren Broadnax. After a joint trial, a jury found Anthony guilty on allcounts. Anthony was sentenced to life for malice murder and a consecutive five-year sentence for one of the possession counts. The trial court purported to merge the remaining counts for sentencing purposes. Though the trial court’s nomenclature is wrong, see Malcolm v. State,
In a sequential lineup, the witness is shown each photograph individually instead of being shown six photographs at the same time. The alternative procedure, in which six photographs are shown at the same time, is referred to as a six pack.
Prior to his trial, Anthony filed a motion to suppress photographic identifications and argued that the identification procedures were “so unreliable as to give rise to a substantial likelihood of irreparable misidentification.” The record does not contain any pretrial ruling on that motion; nor does it appear that Anthony renewed his motion during trial.
Anthony’s trial occurred before January 1, 2013 and was controlled by a prior version of our Evidence Code. Under our new Evidence Code, we can conduct a plain error review of certain unpreserved evidentiary errors affecting substantial rights. See OCGA § 24-1-103 (d). But we cannot do so here.
Under OCGA § 5-5-23:
A new trial may be granted in any case where any material evidence, not merely cumulative or impeaching in its character but relating to new and material facts, is discovered by the applicant after the rendition of a verdict against him and is brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial.
A Brady violation refers to “the suppression by the prosecution of evidence favorable to an accused upon request” and such suppression “violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland,
Jackson v. Denno,
Jennifer L. Wright, Anthony’s post-trial counsel, was disbarred by order of this Court on May 23, 2016, well after Anthony’s 2012 trial, for issues unrelated to her representation of him. In the Matter of Wright,