Following a jury trial, Jerrick Atkinson was found guilty of malice murder, aggravated assault, attempted armed robbery, possession of a firearm by a convicted felon, and various other offenses in connection with the shooting death of Wayne Edwards.
1. Viewed in the light most favorable to the jury’s verdict, the record shows that, at around midnight on Saturday, December 13, 2008, Atkinson stood just outside of the open driver’s side door of Edwards’ car and killed Edwards by shooting him three times in the face and four times in the chest at
At the hospital two days after the incident, Atkinson’s cousin, Angela Harris, spoke with Atkinson about what had happened at the El
After giving conflicting stories to police, Atkinson testified at trial that his cousin Marquaze had the Mac 10 and that Marquaze was the one who got into a confrontation with Edwards. Atkinson claimed that Edwards shot him in the leg when he tried to break up the argument between Marquaze and Edwards and that Marquaze shot Edwards. Atkinson explained that he made up the previous stories (that someone had shot him in the leg after trying to rob him, or, alternatively, that he was shot in the leg after accidentally running into gunfire that he heard from a distance) to avoid implicating his cousin. He also testified that Angela lied about the conversation in the hospital about him shooting Edwards in the face.
In addition to the other evidence presented against Atkinson at trial, similar transaction evidence was introduced (following a hearing on its admissibility) in the form of Atkinson’s 1998 conviction for armed robbery and other offenses relating to his carjacking of a victim at gunpoint and stealing the victim’s wallet, and a different 1998 guilty plea to armed robbery where he pointed a gun at a woman and stole her purse.
The evidence was sufficient to enable a rational trier of fact to find Atkinson guilty beyond a reasonable doubt of all the crimes of which he was convicted. Jackson v. Virginia,
2. Although the evidence was sufficient to support the jury’s guilty verdicts, we have noted an error with respect to the merger of certain counts for sentencing purposes. Specifically, the trial court purported to merge the possession of a firearm by a convicted felon count against Atkinson into one of the felony murder counts against him, and then merge that count into the malice murder count for sentencing purposes. However, the possession of a firearm by a convicted felon count could not merge into the felony murder count, as both felony murder counts against Atkinson were vacated by operation of law in light of Atkinson’s conviction for malice murder. See Malcolm v. State,
3. With respect to Atkinson’s six enumerations relating to alleged prosecutorial misconduct, and fourteen additional alleged errors relating to the admission into evidence of similar transactions, problems with jury voir dire, the exclusion of an overhead slide from defense counsel’s closing argument presentation, a witness testifying that the victim’s wife died of a heart problem, the trial court reassigning Atkinson’s original appointed counsel to another case, the jury seeing the indictment during deliberations, and Atkinson’s due process rights allegedly being violated throughout the pretrial and trial proceedings, these arguments have been waived for purposes of this appeal, as a proper objection was not raised below with respect to these matters.
In any event, with respect to the issues raised relating to the similar transaction evidence, even if Atkinson had raised a proper objection, the record reveals that the State gave proper notice of its intent to use these prior convictions at trial for the proper purpose of showing lack of mistake, course of conduct, and motive, and the trial court conducted a proper hearing on the admissibility of the prior convictions. See, e.g., Simmons v. State,
4. Atkinson has also raised three enumerations relating to alleged improprieties in the trial court’s charge to the jury. Specifically, he contends that the trial court erred by giving a “sequential charge” on armed robbery, failing to inform the jury that the State had to prove every material allegation in the indictment, and instructing the jury with respect to its duty to believe the most believable witness. Although Atkinson did not object to these jury charges at trial, these issues are subject to review for plain error on appeal pursuant to OCGA § 17-8-58 (b). To satisfy plain error review:
First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if theabove three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
(Citations, punctuation and emphasis omitted.) State v. Kelly,
Atkinson has failed to show any error, let alone plain error, in the trial court’s jury charge. Indeed, the trial court specifically charged the jury on the State’s burden to prove every material allegation in the indictment, and, considering the jury charge as a whole, the charge given on the jury’s duty to believe the most believable witnesses would not have been confusing or otherwise improper. Santana v. State,
5. Atkinson alleges in three enumerations that the trial court erred by holding an off-the-record sidebar conversation with the State and defense counsel in the presence of the jury.
“[Tjhere is no evidence that [the] jurors heard the substance of the [sidebar conversation]. . . . Consequently, the circumstances fall far short of demonstrating the manifest necessity for [the trial court to declare] a mistrial.” (Citation omitted.) Lawton v. State,
6. Atkinson contends in several separate enumerations that his counsel was ineffective for failing to: (a) move for a mistrial or otherwise properly challenge the fact that a sidebar conversation took place in the presence of the jury; (b) challenge the legality of the verdict form and Atkinson’s sentence; (c) object to the admission of similar transaction evidence; (d) object to the trial court’s jury charge or request a charge on the State having to prove all allegations in the indictment; (e) file a motion to bifurcate; (f) object to alleged inappropriate closing arguments and an argument in which the prosecutor stated that it did not matter if Atkinson said “where’s the package” to Edwards before shooting him; (g) challenge the “subject matter jurisdiction” of the indictment; (h) introduce exculpatory evidence in the form of medical records and testimony from Atkinson’s father; (i) interview State
In order to succeed on his claim of ineffective assistance, [Atkinson] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different, if not for the deficient performance. Strickland v. Washington,466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. Id. at 697 (IV); Fuller v. State,277 Ga. 505 (3) (591 SE2d 782 ) (2004). In reviewing the trial court’s decision, “ ‘[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.’ [Cit.]” Robinson v. State,277 Ga. 75 , 76 (586 SE2d 313 ) (2003).
Wright v. State,
(a)-(d) As to these issues, Atkinson has shown no error in the trial court’s handling of the sidebar conversation; there was no error in the verdict form or Atkinson’s recidivist sentence (other than the error addressed in Division 2, about which Atkinson does not complain with respect to his lawyer’s performance);
(e) A motion to bifurcate Atkinson’s trial on the possession of a firearm by a convicted felon count or the use of a firearm by a convicted felon during the commission of a felony count from the remaining counts against him likely would not have succeeded. See Jones v. State,
(f) During the State’s closing argument, the State mentioned that defense counsel had objected at trial to the State asking questions about Marquaze’s background, and the State also mentioned that it did not matter whether Atkinson actually said “where’s the package” when he approached Edwards. With respect to the “where’s the package” statement, trial counsel testified at the motion for new trial hearing that she did
(g) A general or special demurrer to the indictment would not have been successful, as the indictment properly set out all of the facts and elements of the crimes necessary to show that Atkinson could be found guilty of the crimes alleged, and the indictment sufficiently informed Atkinson of the allegations against him such that he could prepare an intelligent defense. See State v. Wyatt,
(h) Trial counsel testified at the motion for new trial hearing that, after interviewing Atkinson’s father, she was concerned that he might not be a credible witness. She therefore made a reasonable strategic decision not to call him as a witness at Atkinson’s trial. Fortson v. State,
(i) While preparing the case, trial counsel did in fact attempt to interview Marquaze and Angela Harris, but they refused to speak with her. Counsel also interviewed a potential witness at the El Ranchero restaurant where the shooting took place, but this witness did not provide useful information. Atkinson has not shown that trial counsel performed deficiently in her efforts to interview witnesses and prepare his defense, nor has he shown how he was prejudiced at trial from counsel’s unsuccessful efforts to interview Marquaze and Angela. Miller v. State,
(j) Atkinson claims that his trial counsel was ineffective for failing to object to (1) testimony from Marquaze in which he mentioned that he and Atkinson had been “smoking a little marijuana” while they were hanging out before going to the El Ranchero; (2) testimony from Marquaze and Angela in which they indicated that unnamed people had either threatened them individually or had threatened members of their family because they had agreed to testify at trial;
With respect to the comment about smoking marijuana, trial counsel testified that she did not object to it because, in the “whole scheme of things” involved in the
Judgment affirmed in part and vacated in part.
Notes
On November 12, 2009, Atkinson was indicted for malice murder, two counts of felony murder (predicated on aggravated assault and possession of a firearm by a convicted felon), aggravated assault, criminal attempt to commit armed robbery, possession of a firearm during the commission of a felony, one count of possession of a firearm by a convicted felon, and one count of commission of a crime by a convicted felon through the use of a firearm. Following a December 13-17, 2010 jury trial, Atkinson was found guilty on all counts. On December 21, 2010, the trial court sentenced Atkinson as a recidivist to life imprisonment without the possibility of parole for malice murder, ten consecutive years for attempted armed robbery, five consecutive years for possession of a firearm during the commission of a felony, and an additional fifteen consecutive years for commission of a crime by a convicted felon through the use of a firearm pursuant to OCGA § 16-11-133 — for a total sentence of life plus thirty years. The trial court purported to merge the possession of a firearm by a convicted felon count into one of the felony murder counts, and then merge that felony murder count and all other remaining counts into the malice murder count for sentencing purposes. On October 9, 2014, Atkinson filed a motion for out-of-time appeal, which was granted, and he filed a motion for new trial on December 19, 2014. On April 27, 2015, Atkinson requested a hearing to be allowed to proceed pro se in his case, and, following a hearing on his request, the request was granted. Following an October 22, 2015 hearing on Atkinson’s motion for new trial, the motion was denied on October 26, 2015. Atkinson filed a timely appeal to this Court, and, following the payment of costs, the appeal was docketed to the term beginning in December 2016.
Many of these enumerations overlap with each other and will be grouped together accordingly.
As with Atkinson’s other enumerations, many of the grounds of alleged ineffective assistance asserted by Atkinson are repetitive . Some of the grounds also cover the same issues as those raised in Atkinson’s thirty other enumerations. Accordingly, the issues of ineffective assistance will be grouped together as much as possible for the sake of efficiency.
We note that Atkinson has not shown any error in the verdict form, and that he has not shown any error in his sentencing as a recidivist pursuant to the former version of OCGA § 17-10-7 (b) (2) that was applicable at the time of his 2010 trial.
Because Atkinson’s trial took place before the effective date of Georgia’s new Evidence Code on January 1, 2013, the alleged errors of the trial court relating to evidentiary matters are not subject to plain error review. See OCGA § 24-1-103. See also Dinkins v. State,
Defense counsel did lodge an objection regarding the sidebar taking place with the jurors still in the courtroom.
While Atkinson asserts 23 separate instances of alleged ineffective assistance, some of these instances are repetitive and have been consolidated accordingly in this opinion.
In this regard, because Atkinson was properly sentenced as a recidivist, trial counsel could not have been deficient for failing to request a pre-sentencing hearing, nor did any prejudice result from her failure to do so. See, e.g., Bragg v. State,
To the extent that Atkinson argues that his trial counsel was ineffective for failing to object to the armed robbery charge going back with the jury, failing to request a charge on voluntary manslaughter, and failing to request a jury charge on the “two theories” of circumstantial evidence, these arguments fail. A charge on voluntary manslaughter would not have been adjusted to the evidence, and a “two theories” charge on circumstantial evidence is no longerlegally appropriate. See Chafin v. State,
Marquaze testified that he had personally received threats and that members of his family had also received threats. Angela testified that people attempted to threaten her by sending “nasty messages” to her sister’s Facebook account.