Bryant v. StateBryant v. State
sentences may be constitutionally imposed only on the worst-of-the-worst juvenile murderers, much like the Supreme Court has long directed that the death penalty may be imposed only on the worst-of-the-worst adult murderers. To the extent this Court’s decisions in Jones and Bun suggested otherwise, they are hereby disapproved.
In this case, the trial court appears generally to have considered Appellant’s age and perhaps some of its associated characteristics, along with the overall brutality of the crimes for which he was convicted, in sentencing him to serve LWOP for the murder of Charles Boyer — a crime for which Appellant may have been convicted only as an aider-and-abetter. The trial court did not, however, make any sort of distinct determination on the record that Appellant is irreparably corrupt or permanently incorrigible, as necessary to put him in the narrow class of juvenile murderers for whom an LWOP sentence is proportional under the
Judgment affirmed in part and vacated in part, and case remanded for resentencing. All the Justices concur.
DECIDED MARCH 21, 2016.
Long D. Vo, for appellant.
Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Joshua D. Morrison, Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew Min-soo Youn, Assistant Attorney General, for appellee.
BENHAM, Justice.
1. The evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
The suppression by the prosecution of evidence favorable to an accused upon request 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, 373 U. S. 83, 87 (83 SCt 1194, 10 LE2d 215) (1963). This includes the suppression of impeachment evidence that may be used to challenge the credibility of a witness. See Giglio v. United States, 405 U. S. 150, 154-155 (92 SCt 763, 31 LE2d 104) (1972). [Cit.] To prevail on a Brady claim, [appellant] was required to show that
(1) the State possessed evidence favorable to his defense; (2) he 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) had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the trial would have been different. [Cits.]
(Punctuation omitted.) Danforth v. Chapman, 297 Ga. 29 (2) (771 SE2d 886) (2015).
Here, appellant cannot establish a Brady/Giglio violation because he was able to obtain the evidence himself. From the record, it appears that the prosecution was unaware of the warrants because it had not performed criminal background checks of the two witnesses in question.3 The defense obtained the information on its own accord. Specifically, at trial, defense counsel informed the trial court that he had found out about the warrants from the defense investigator. This assertion by counsel was corroborated during the motion for new trial hearing when the defense investigator testified he discovered outstanding warrants against Cook while conducting a jailhouse interview of Cook, who was in jail on an unrelated matter.
Nevertheless, in response to appellant’s request for a mistrial and as a way of mitigating the late discovery of the information, the trial court allowed appellant broad leeway to cross-examine Cook and Carmichael, as well as the investigators on the case, about the outstanding warrants. During his cross-examination, appellant was able to establish that neither Cook nor Carmichael had been arrested on the warrants, and counsel was able to imply that the two might be receiving such favorable treatment in exchange for their testimony against appellant. Since there was no violation of Brady or Giglio, the trial court did not abuse its discretion when it declined to grant a mistrial. This allegation of error is without merit.
3. Appellant alleges the trial court erred when it allowed the admission of photographic lineups in which witnesses identified appellant as the shooter. The record shows that authorities presented photographic lineups to Cook, Carmichael, and Karessa Johnson, who were all witnesses for the State. The three were shown two different photographic lineups which were generated by two different investigators working on the case. While investigator Fanning testified that he only showed witnesses one lineup, the other investigator who also generated a lineup in the case did not testify at trial. Both lineups contained a photograph of appellant, albeit in different positions among the other photographs. All three of these witnesses testified that authorities did not influence them as to which, if any, photograph to select. All three of these witnesses made an in-court identification of appellant as the shooter. At trial, appellant objected to the admission of the photographic lineups on the grounds that they would “unnecessarily highlight the photographs” and unnecessarily highlight the testimony of the victim Cook. The trial court overruled the objections.
Angela Askew, who owned the sports bar and who was a witness for the defense, testified
On appeal, appellant contends the lineups were tainted and impermissibly suggestive, leading to the misidentification of appellant. We disagree.
An unduly suggestive procedure is one which leads the witness to the virtually inevitable identification of the defendant as the perpetrator, and is equivalent to the authorities telling the witness, “This is our suspect.” Where the identification procedure is not unduly suggestive, it is not necessary to consider whether there was a substantial likelihood of irreparable misidentification.
(Punctuation omitted.) Williams v. State, 290 Ga. 533 (2) (a) (722 SE2d 847) (2012). The lineup procedure in this case was not unduly suggestive.
Each lineup contained six pictures arranged in two rows of three and numbered one through six. Each lineup had an identification number. Each witness was given a preprinted form with instructions on how to make an identification, if any. Using the preprinted form, the three State witnesses wrote their initials under the number that corresponded with the photograph of the person they recognized. The preprinted forms included the signatures of the witness and the investigator, the date and time of the identification, and the lineup identification number. The three State witnesses were unequivocal in their pretrial identifications, and they all confirmed that they were not unduly influenced by investigators.
Defense witness Askew likewise was uninfluenced by authorities because she made no identification of appellant, staying true to her statements and testimony that the person who entered her bar with a silver gun was not appellant. Askew did not make any in-court identification of appellant, she did not witness the shooting, and the jury was free to weigh her testimony as it did the other identification witnesses. The photographic lineup procedure here was not suggestive as to the witnesses who made in-court identifications of appellant; and so we need not reach the issue of whether there was an irreparable misidentification at trial.4 Williams, 290 Ga. at 535 (2) (a). There was no reversible error.
4. In order to prevail on a claim of ineffective assistance of counsel, appellant
must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. A strong presumption exists that counsel’s conduct falls within the broad range of professional conduct.
(Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34 (4) (644 SE2d 837) (2007). If a defendant fails to meet his burden on one prong of the two-prong test, then the other prong need not be reviewed by the Court. Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012). Appellant cannot meet his burden to show ineffective assistance.
(a) First, appellant contends counsel was ineffective for failing to discover outstanding warrants pretrial. This allegation is of no moment because appellant was not prejudiced. When counsel learned of the warrants during trial, he obtained the trial court’s permission to extensively cross-examine
(b) Appellant contends counsel rendered ineffective assistance when he failed to obtain fifty pages of missing discovery. Appellant has not shown what was in the missing pages or how not having access to these missing pages prejudiced him at trial. This allegation is without merit.
(c) Appellant complains counsel did not investigate his alibi witnesses. At the motion for new trial hearing, co-counsel5 and the defense investigator both testified that they did in fact investigate appellant’s alibi witnesses. The first alibi witness, who was appellant’s brother, claimed he did not know appellant and would not talk to the defense investigator. The second alibi witness would have provided unhelpful information. Specifically, appellant told his trial counsel he left the club with the first alibi witness before the shooting occurred; however, the second alibi witness would have testified appellant was present for the shooting but was not the shooter. It was not unreasonable for trial counsel to make a strategic decision declining to put forward an uncooperative alibi witness or an alibi witness who would have provided conflicting testimony. See Andrews v. State, 293 Ga. 701 (2) (749 SE2d 734) (2013). No deficient performance is shown.
Judgment affirmed. All the Justices concur.
DECIDED MARCH 21, 2016.
William J. Sussman, for appellant.