BIGHAMS v. THE STATE; CREAR v. THE STATE
S14A1464, S14A1465
Supreme Court of Georgia
NOVEMBER 17, 2014
296 Ga. 267 | 765 SE2d 917
NAHMIAS, Justice.
Fredric D. Bright, District Attorney, Reginald L. Bellury, Assistant District Attorney, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ryan A. Kolb, Assistant Attorney General, for appellee.
Ervin Bighams and Jordan Crear appeal their convictions for felony murder, two counts of aggravated assault, and possession of a firearm arising from a shooting that killed Travis Tyson, injured Tony Reeves, and threatened Lаrry Reeves. We affirm in both cases.1
1. (a) Viewed in the light most favorable to the jury‘s verdicts, the evidence presented at trial showed the following. On the night of July 2, 2004, Crear drove his Chevrolet Avalanche truck from his home in Kingsland, Georgia, to Homerville, where he picked up his brother-in-law Bighams and Von Cleary, Bighams‘s friend. The three men drove to a party nearby, but only Cleary went inside the building where the party was taking place. Bighams and Crear stood оutside and spoke with Dwight Riley and Torrence Edmonds. While they were talking, Cleary was involved in a fight inside the building and was rushed to the hospital.
Shortly thereafter, Bighams, Crear, Riley, and Edmonds were talking to people outside the building when a Buick sedan driven by Travis Tyson drove down the road in front of them. Believing that Tyson and his gang had attacked Cleary, Riley stopped the Buick,
After visiting Cleary, the four men got back in the truck and continued to drink alcohol and drive around the area, with Crear driving and Riley sitting bеhind him, and Bighams in the front passenger seat with Edmonds sitting behind him. As they drove around, the men came across the Buick driven by Tyson. Bighams, Crear, and Riley jumped out of the Avalanche and tried to confront the men in the Buick, but the car drove away. Bighams, Crear, and Riley returned to their seats in the truck, and Riley and Edmonds fell asleep in the back seat.
A short while later, the Avalanche came across the Buick once again and began following the сar. When the Buick stopped at a stop sign, Crear drove the Avalanche up to the left side of the car, and three shots were fired into the Buick. Two shots hit and killed the driver, Travis Tyson. One shot grazed Tony Reeves, who was sitting in the front passenger seat. Larry Reeves, who was in the back seat, was not hit. The Avalanche fled the scene; the police located it and arrested Bighams and Crear a few hours after the shooting. Riley and Edmonds were arrested separately.
At Appellants’ trial, two witnesses who were in a car behind the Avalanche when the shooting took place testified that they saw the Avalanche drive up to the left of the Buick and heard shots fired from the passenger side of the truck, although neither witness could say whether the shots came from the front or rear passenger-side window. Crear, Riley, Edmonds, and Larry Reeves all testified that Bighams fired the gun. Tony Reeves testified that he did not know who the shooter was; in a statement he gave to the police shortly after the shooting, he had claimed that Riley was the shooter. Bighams claimed that Crear handed thе gun to Riley, who then shot into the Buick.
Crear admitted at trial that he drove the Avalanche up beside the Buick, but claimed that he did so only because the Buick was lingering at a stop sign and he wanted to pass by. The pistol used in the shooting was owned by Crear, who testified that he had the gun for protection during late-night drives from Georgia to Mississippi, where he used to be stationed in the Navy. Crear said that he had shown Bighams where he kept the gun under the seat, but claimed that he did not ask Bighams or anyone else to use the gun on the night of the shooting.
(b) Appellants argue that the evidence presented at trial, and in particular the eyewitness testimony relied upоn by the State, was not sufficient to support guilty verdicts. Although the eyewitness accounts of the shooting did vary to some extent, “[i]t was for the jury to
2. Appellants contend that the indictment on which they were prosecuted was void because an elected offiсial served on the grand jury that returned it. At the motion for new trial hearing, the parties stipulated that a member of the Fargo City Council served on the grand jury that indicted Appellants.2
However, to be cognizable, most attacks on an indictment, including a challеnge to the composition of the grand jury that returned it, must be brought within ten days of arraignment, unless the trial court extends that deadline. See
3. Appellants finally contend that their respective trial counsel provided ineffective аssistance because they failed to file timely motions to quash the indictment due to the elected official‘s service on the grand jury. To prevail on this claim, Appellants must show that their trial lawyers’ performance was professionally deficient and that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been more favorable to them. See Strickland v. Washington, 466 U. S. 668, 687, 694 (104 SCt 2052, 80 LE2d 674) (1984). Appellants have not met this burden.
Even assuming, without deсiding, that there was no strategic reason for not filing a timely challenge to the indictment (like the desire not to delay the trial), and thus that trial counsel performed deficiently, Appellants have not shown prejudicе. If a timely motion to quash had been filed, the indictment likely would have been dismissed because an elected official served on the grand jury in violation of
Judgments affirmed. All the Justices concur.
DECIDED NOVEMBER 17, 2014.
L. Michael Johnson, for appellants.
Richard L. Perryman III, District Attorney, Catherine H. Helms, Sandra K. Guest, Assistant District Attorneys, Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Rochelle W. Gordon, Assistant Attorney General, for appellee.