Bentley v. StateBentley v. State
Appellant Maurice Bentley was convicted of malice murder and other crimes in connection with a shooting that killed Michael Polite and injured Angela Johnson. Appellant contends on appeal that his trial counsel provided ineffective assistance by failing to object to an autopsy photograph, failing to stipulate to Appellant‘s prior convictions for rape and incest, and mentioning in front of the jury an earlier trial in this case. None of these claims has merit, so we affirm.1
Later that evening, Appellant returned to the house to pick up Frazier for the party. He parked his SUV on the street in front of the house, sat in the passenger seat with the door open, and waited for her. Polite then went out to the front yard and told Appellant to leave because Frazier was going to stay with Polite and the children. Appellant and Polite argued, and Johnson, Frazier, and Frazier‘s sister Kimberly also went out to the front yard. Frazier stood near Appellant, who was still sitting in the passenger seat, while Polite, Johnson, and Kimberly stood in front of Appellant in the yard. Johnson tried to persuade Polite to return to the house by pulling on his arm. She then heard Polite say, “[O]h, you got a gun,” and “[W]e ain‘t gotta do that.” Polite stepped back toward the house and said that he and Appellant “could fight and get it over with.” Appellant then stood up outside the SUV, pulled out a gun, and shot toward Polite as Politе began to run away. Polite was shot four times and collapsed near the side of the front yard; Johnson was shot once in the leg. Appellant, who was a convicted felon, then fled in his SUV.
Phone records showed that Appellant called his cousin moments after the shooting. The cousin testified that Appellant arrived at her house in his SUV later that night, parked it on the side of the house, and told her at some point that he was leaving to change his clothes, but did not return. Investigators found Appellant‘s SUV parked next to the cousin‘s house. Almost two weeks later, Appellant was found at another family member‘s house; he was arrested after he attempted to escape by climbing out a window.
At trial, Johnson, Frazier, and Kimberly each identified Appellant as the shooter and testified that no one else had a gun
The medical examiner who performed Polite‘s autopsy testified that Polite was shot once in the back of his shoulder, once near his pelvis, and twice in his lower back. The medical examiner removed four .380 bullets from Polite‘s body and testified that the location of the bullet wounds was consistent with Polite‘s having run away from the shooter. A firearms examiner testified that the three shell casings found at the crime scene were fired from the same .380 pistol and that all of the bullets recovered from Polite‘s body were fired from the same .380 pistol, although he could not determine whether
Appellant did not testify at trial. His primary defense theory was that Frazier was the shooter and he was merely present at the scene. To support this theory, Appellant pointed to evidence that Frazier and Polite had a violent relationship and that Frazier had purchased a Davis .380 pistol in 2009. Frazier testified, however, that at the time of the shooting she no longer owned that pistol, and the firearms examiner testified that the bullets from Polite‘s body were not consistent with having been fired from a Davis pistol. Moreover, the prosecutor asked Frazier if she had shot Polite and Johnson, and she squarely denied it.
Appellant does not challenge the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court‘s practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes of which he was
2. Appellant contends that his trial counsel provided ineffective assistance in three ways. To succeed on his 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 SCt 2052, 80 LE2d 674) (1984). To establish deficient performance, Appellant must show that his lawyer performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. at 687-690. To prove prejudice, Appellant must demonstrate that there is a reasonable probability that, but for counsel‘s deficiency, the result of his trial would have been different. See id. at 694. “It is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding.‘”
(a) Appellant asserts that his trial counsel provided ineffective assistance by failing to object to the admission of an autoрsy photo. Because the objection to the photo that Appellant says his counsel should have made would have been meritless, this claim fails.
The photo, which was admitted into evidence during the State‘s direct examination of the medical examiner who performed Polite‘s autopsy, showed Polite‘s back with rods inserted into his four gunshot wounds to approximate the trajectories of the bullets that struck him. Appellant argues that his trial counsel should have objected to the photo on the ground that its admission was precluded by the evidence rule announced in Brown v. State, 250 Ga. 862 (302 SE2d 347) (1983). In Brown, this Court declared that “[a] photograph which depicts the victim after autopsy incisions are made or after the state of the body is changed by authorities or the pathologist will not be admissible unless necessary to show some material fact which becomes apparent only because of the autopsy.” Id. at 867.
We recently held, however, that Brown‘s judge-made, categorical exclusionary rule was abrogated by Georgia‘s new Evidence Code. See Venturino v. State, 306 Ga. 391, 395-396 (830 SE2d 110) (2019). See also State v. Orr, 305 Ga. 729, 739 n.8 (827 SE2d 892) (2019). Because the trial of this case occurred years after the new Code took effect, any objection to the autopsy photo based on Brown would have been meritless. See Jackson v. State, 306 Ga. 266, 273 (830 SE2d 99) (2019) (explaining that an appellant “cannot prevail on a claim of ineffectiveness on the basis that his trial counsel failed to rely on a case that was not applicable to his trial“). See also Lockhart v. Fretwell, 506 U.S. 364, 366 (113 SCt 838, 122 LE2d 180) (1993) (concluding that the defendant could not establish
Moreover, even if Appellant‘s trial counsel had objected to the autopsy photo as unfairly prejudicial under the new Evidencе Code, that objection would have failed. Under the new Code, the general admissibility of autopsy photographs is governed by
At trial, the medical examiner testified that the autopsy photo showed the approximate paths of the bullets that struck Polite once in the back of his shoulder, once near his pelvis, and twice in his lower back. The medical examiner concluded that the trajectories were consistent with Polite‘s having run away from the shooter. The photo and the medical examiner‘s testimony about it were relevant to corroborate Frazier‘s, Johnson‘s, and Kimberly‘s accounts of Polite running away as Appellant repeatedly shot him from behind. See id. at 396 (explaining that the challenged autopsy photo was relevant to show the nature and location of the victim‘s injuries, which corroborated an eyewitness‘s account of the shooting). See also Pike v. State, 302 Ga. 795, 799-800 (809 SE2d 756) (2018); Moss v. State, 298 Ga. 613, 617-618 (783 SE2d 652) (2016). And as autopsy photos in a murder case go, this one was not especially gory or gruesome. See Pike, 302 Ga. at 799; Moss, 298 Ga. at 617.
(b) As mentioned above in footnote 1, Appellant‘s indictment included a count for possession of a firearm by a convicted felon. See
Appellant now contends that his trial counsel provided ineffective assistance by failing to offer to stipulate to Appellant‘s status as a convicted felon, which resulted in the admission of evidence that he had committed rape and incest. He argues that his counsel performed deficiently because the trial court would have been required to accept such a stipulation under the United States Supreme Court‘s holding in Old Chief v. United States, 519 U.S. 172 (117 SCt 644, 136 LE2d 574) (1997), and this Court‘s adoption of
(1) The question presented in Old Chief was whether a trial court, in a case involving a federal charge of possession of a firearm by a convicted felon, abuses its discretion under
This Court later adopted Old Chief‘s reasoning in Ross, in which we held:
[W]hen (1) a defendant‘s prior conviction is of the nature likely to inflame the passions of the jury and raise the risk of a conviction based on improper considerations,
and (2) the purpose of the evidence is solely to prove the defendant‘s status as a convicted felon, then it is an abuse of discretion for the trial court to spurn the defendant‘s offer to stipulate to his prior conviction and admit the evidence tо the jury.
279 Ga. at 368. We then concluded that the nature of Ross‘s prior conviction for enticing a child for indecent purposes “could raise the risk of a verdict tainted by improper considerations“; that the evidence was unnecessary to prove anything other than his status as a convicted felon; and that it was therefore an abuse of discretion for the trial court to reject his offer to stipulate to that fact. Id. We determined, however, that the error was harmless due to the overwhelming evidence of Ross‘s guilt. See id.
Ross was decided under Georgia‘s old Evidence Code, and so Old Chief — an interpretation of federal evidence law — was not сontrolling on this Court, as was emphasized by the special concurrence in Ross, which rejected the Old Chief holding. See Ross, 279 Ga. at 369 (Carley, J., concurring specially). Ironically, because Ross was decided under the old Evidence Code, it is no longer the controlling authority for this Court, because in
This understanding may not change the result in any case, because the Ross majority followed Old Chief and our decisions applying Ross are likely also faithful applications of Old Chief (at least the ones we cite below are). But as we have emphasized time and time again, to apply the law correctly, it is essential to understand which Evidence Code applies to the case and what precedent therefore controls. See Davis, 299 Ga. at 192. See also Almanza, 304 Ga. at 558 (holding that, where a new Georgia evidence rule mirrors a federal evidence rule, “we look to federal appellate precedent until a Georgia appellate court decides the issue
(2) Assuming that Appellant‘s trial counsel performed deficiently by failing to offer to stipulate to his prior convictions under Old Chief, Appellant cannot prove that this alleged error likely affected the jury‘s guilty verdicts. To begin with, during the entire trial the prior offenses were identified only twice in passing. As noted above, when the prosecutor tendered State‘s Exhibit 40, he briefly described the exhibit as “a conviction for [Appellant] for rape and incest.” And during closing argument, the prosecutor explained the law prohibiting convicted felons from possessing firearms and then noted “why [Appellant‘s] a convicted felon, rape and incest are felonies.” The names and nature of the earlier convictions were not emphasized by the State; rather, the prior offenses were properly used only to establish the convicted-felon element of Appellant‘s charges for possession of a firearm by a convicted felon and felony murder based on that underlying crime.
To that end, the trial court gave an extensive instruction
By contrast, the evidence of Appellant‘s guilt was compelling. Three eyewitnesses — Johnson, Frazier, and Kimberly — identified him as the shooter in photo lineups and at trial and testified that no one else had a gun that night. Frazier also told investigators that Appellant carried a .380 pistol — the type of gun used in the shooting — and she testified that she had seen a gun in Appellant‘s car earlier on the day of the shooting. When Frazier informed Appellant that Polite had died from his gunshot wounds, Appellant responded that “he wasn‘t trying to kill him.” Appellant then evaded arrest for nearly two weeks and attempted to climb out a window when investigators finally found him. And during a recorded jail phone call, Appellant did not dispute Johnson‘s accusation that he was the
Appellant argues that he was prejudiced by his lawyer‘s failure to stipulate to the rape and incest convictions because evidence of the nature of his convictions was not admitted during his two previous trials, which resulted in mistrials after the juries failed to reach unanimous verdicts.5 He asserts that the admission of the prior offenses during his third trial — the one resulting in the convictions now under review — induced the jury to find him guilty. But no two trials are the same. Even multiple trials of the same case will have differences in evidence and arguments — some apparent
Each of Appellant‘s three trials was considered by different juries; the first was tried by different counsel for both the State and Appellant before a different judge, and there are undoubtedly other indiscernible differences among the trials. But even putting all of that aside, the record reveals differences in some key evidence
Thus, even assuming that a jury‘s failure to reach a unanimous
(c) Finally, Appellant argues that his trial counsel provided ineffective assistance by mentioning in front of the jury Appellant‘s second trial (which, as discussed above, resulted in a mistrial). As counsel began to show a witness the transcript of her testimony from the prior trial to impeach her with it, the prosecutor asked counsel to identify the date on it, and counsel remarked, “This is the transcript from the trial, from the last hearing February.”
(d) Although we have evaluated each of Appellant‘s claims of ineffective assistance of counsel separately, “we also recognize that ‘the effect of prejudice resulting from counsel‘s deficient performance is viewed cumulatively.‘” Jackson v. State, 306 Ga. 69, 90 (829 SE2d 142) (2019) (citation omitted). Having considered the cumulative effect of the deficiencies assumed in Division 2 (b) and (c), we conclude that they do not establish a reasonable probability that the
Judgment affirmed. All the Justices concur.
Notes
Now, sometimes evidence is admitted for a limited purpose. Such evidence may be considered by you for the sole issue or purpose for which the evidence is limited and not for any other purpose. You have received in evidence, and will have copy with you, a copy of a prior conviction of [Appellant]. That is a required element of a conviction in count three, which charges felony murder and the underlying felony being, and I‘m going to explain that to you in more detail, possession of a firearm by a convicted felon. It also applies to count eight which is the charge of possession of a firearm by a convicted felon. You may consider this evidence only insofar as it may relate to counts three and eight, and for no other purpose.
. . .
In count three [Appellant is] charged with commission of felony murder while in the commission of the offense of possession of a firearm by convicted felon. To prove the offense of possession of firearm by a convicted felon, the State must produce evidence, evidence to prove beyond a reasonable doubt that [Appellant] is in fact a convicted felon. Evidence has been admitted into evidence for that purpose. I instruct you that you are to consider any such evidence only for the very limited purposes of proving that [Appellant] has a prior felony conviction, if it does so . . . [. Y]ou are not to consider such evidence for any other purpose, whatsoever.