810 S.E.2d 527 | Ga. | 2018
*530Terrance Justin Dent appeals his convictions and sentences for felony murder while in the commission of aggravated assault and possession of a firearm during the commission of a felony, as well as the denial of his motion for new trial, as amended, all in connection with the shooting death of Jevon Freeman. Dent challenges the sufficiency and weight of the evidence, the failure to charge the jury on voluntary manslaughter in accordance with Edge v. State ,
The evidence construed in favor of the verdicts showed the following. Around 4:30 p.m. or 5:00 p.m. on November 6, 2013, Freeman went to meet potential buyer Dent, who had responded to Freeman's Craigslist ad to sell an iPhone. Freeman had listed the selling price as $500 but Dent was offering to pay $450. In arranging the sale, Freeman requested that the meeting be in a public place, namely a gas station on Riverdale Road; however, Dent was adamant about meeting at a church at the intersection of I-85 and Garden Walk Boulevard. Freeman agreed to meet there even though he voiced to his best friend that he was worried about being robbed as the church would be empty at that time and it would be dark outside.
When Dent and Freeman met in the church parking lot, they went to the door of the daycare facility at the church and requested entry to complete the sale of the iPhone. An employee at the daycare facility declined to let them enter. Minutes later, the employee heard gunshots and called the police.
When officers responded to the scene at 6:18 p.m., they found Freeman shot and unresponsive, slumped over in his car. Officers found approximately $450 in cash scattered on the ground and a Samsung cell phone belonging to Freeman outside the driver's door on the ground. Dent was no longer on the scene. Freeman was later pronounced dead at the hospital.
*531Freeman's phone records revealed that in the minutes prior to his death, Freeman communicated with a cell phone number belonging to Dent. The cell phone number was known to be Dent's because he had used it a year earlier to place a 911 call. That time, Dent had posted an ad on Craigslist for the sale of an iPad. Allegedly, when Dent and the buyer met for the sale, the buyer took the iPad and left without paying; when Dent asked for his money, the buyer threatened to fight him. Dent reported this alleged incident and his address was listed on that incident report. Accordingly, officers obtained and executed a search warrant for Dent's residence.
During the search, investigators located two Samsung cell phones in Dent's bedroom. Search warrants were obtained for electronic data and messages on those cell phones. The phone messages revealed plans by Dent to purchase a .22 caliber pistol on November 1, 2013, the same type of gun used to kill Freeman. Internet searches conducted by Dent in the days leading up to the crimes were also located on the phones, including searches about purchasing and using firearms, such as "can a 22 caliber kill," "getting shot with gun," "how to kill someone," "how to rob someone with a gun," "how to scare people with a gun," and "how to shoot and kill somebody." It also revealed searches done only hours after the murder: "guy shot in Riverdale, Georgia," "what do police do when they test for fingerprint," "what if the police found my fingerprint," and "do the police have everyone's fingerprints."
On November 8, 2013, two days after the murder, Dent was arrested and interviewed. After waiving his Miranda
During the interview, Dent also provided the location of the ammunition, pistol, and iPhone. The iPhone was located inside Dent's school locker, and the pistol was found in the possession of his friend, Latrel Avante Irving.
The medical examiner testified that Freeman was killed by a gunshot wound to the chest, which pierced the heart and rendered it unable to pump blood. There was no sign of soot or stippling, and the bullet was fired from an indeterminate range. The bullet recovered from Freeman's body was a .22 caliber bullet fired by the derringer pistol purchased by Dent.
*5321. Dent contends that the evidence presented by the State was insufficient as a matter of law to support his conviction for felony murder. He maintains that the State's case rested primarily on the erroneous theory that he intended to rob Freeman, even though the evidence did not support it, and that the evidence, which was circumstantial, did not exclude the reasonable hypothesis that he shot Freeman in self-defense.
When evaluating the sufficiency of the evidence:
Evidence may be less than overwhelming, but still sufficient to sustain a conviction. When we consider the legal sufficiency of the evidence, we must put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact. Instead, we must view the evidence in the light most favorable to the verdict, and we inquire only whether any rational trier of fact might find beyond a reasonable doubt from that evidence that the defendant is guilty of the crimes of which he was convicted.
Walker v. State ,
There was sufficient evidence from which a rational trier of fact could find that Dent's shooting of Freeman was not justified as self-defense and that he was guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia ,
[w]e are without authority to do so. A motion for new trial based on OCGA § 5-5-20, i.e., that the verdict is contrary to the evidence, addresses itself only to the discretion of the trial judge. Whether to grant a new trial based on OCGA § 5-5-21, i.e., that the verdict is strongly against the evidence, is one that is solely in the discretion of the trial court, and the appellate courts do not have the same discretion to order new trials.
Smith v. State ,
3. Dent next maintains that the trial court erred when it declined to instruct the jury on the lesser included offense of voluntary manslaughter after each count of felony murder, in violation of Edge v. State , supra. However, inasmuch as Dent did not make this objection at trial,
A trial court is required to give a requested charge on voluntary manslaughter if there is slight evidence showing that the victim seriously provoked the defendant, causing the defendant to kill the victim solely as the result of a sudden, violent, and irresistible passion, OCGA § 16-5-2 (a).8
Francis v. State ,
In Edge , this Court held that "[a] sequential charge requiring the jury to consider voluntary manslaughter only if it has considered and found the defendant not guilty of malice murder and felony murder is not appropriate where there is evidence that would authorize a charge on voluntary manslaughter," because if the jury concluded that a felony murder had occurred, "it would not then go on to consider evidence of provocation or passion which might authorize a verdict for voluntary manslaughter."
Here, Dent testified he shot Freeman in self-defense. Even if Dent could have demonstrated that he acted in self-defense,
"the provocation necessary to support a charge of voluntary manslaughter is markedly different from that which will support a self-defense claim." Worthem v. State ,
4. Lastly, Dent contends that his trial counsel provided ineffective assistance in various ways. In order to support the claim of ineffectiveness, he
must prove both that his attorney's performance was professionally deficient and that the deficiency resulted in prejudice to his case. See Strickland v. Washington ,466 U.S. 668 , 687,104 S.Ct. 2052 ,80 L.Ed.2d 674 (1984). To establish deficient performance, Appellant must show that his counsel's acts or omissions were objectively *534unreasonable, considering all the circumstances at the time and in the light of prevailing professional norms. To establish prejudice, Appellant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. This burden, though not impossible to carry, is a heavy one.
Blackmon v. State ,
(a) Dent first maintains that trial counsel was ineffective for failing to file motions to suppress search warrants for the two recovered Samsung cell phones and the information obtained therefrom as well as statements made by Dent to the police, which Dent alleges were involuntary.
As to the cell phones and the recovered information, Dent urges that his counsel should have challenged the warrants because they erroneously stated the date of the murder as November 6, 2014 rather than November 6, 2013,
To begin with, there is no allegation that the search warrants misidentified in any manner the cell phones to be searched. As for the incorrect date of the murder appearing in the affidavits supporting the warrants serving as a meritorious basis for suppression, certainly there is a statutory mechanism to suppress evidence illegally seized when a warrant is insufficient on its face. See OCGA § 17-5-30 (a) (2).
However, even if the error in the warrants in this case were deemed not to be purely typographical or clerical, and the extracted data outside the permissible scope of the warrants, Dent has not claimed, much less shown, any specific resulting prejudice for the purpose of establishing his claim of ineffective counsel. He has not alleged, other than in conclusory terms, that he was prejudiced by his attorney's failure to attempt to suppress the evidence obtained under the search warrants.
As to Dent's custodial statements and trial counsel's not filing a Jackson-Denno
(b) Dent next asserts that trial counsel failed to conduct a reasonable investigation, specifically that trial counsel did not attempt to interview or locate alleged exculpatory witnesses.
Certainly, the failure of counsel to do an adequate investigation in a case, including not investigating potential witnesses, can amount to ineffective assistance of counsel. Anthony v. State ,
(c) Dent next alleges that trial counsel was ineffective for failing to object to, and for even eliciting, certain hearsay testimony related to the 911 call, statements from the employee at the church, and statements from detectives. However, trial counsel testified that he wanted the statements at issue to come into evidence for strategic purposes, including supporting Dent's alleged running from Freeman and that it was Dent who initiated the attempt to enter the church daycare facility, and consequently, that Dent was there for a legitimate transaction. And, there has been no showing of resulting prejudice to Dent or that trial counsel's tactical decision was unreasonable. See Manner v. State ,
*536(d) Dent contends that his counsel was ineffective for failing to file a pre-trial motion for immunity from prosecution based on his claim of self-defense, inasmuch as it was his sole defense. See OCGA § 16-3-24.2.
(e) Finally, citing Schofield v. Holsey ,
Judgments affirmed.
All the Justices concur.
The crimes occurred on November 6, 2013. On July 30, 2014, a Clayton County grand jury returned an indictment against Dent charging him with 14 offenses: Count 1-the malice murder of Freeman; Count 2-the aggravated assault of Freeman by placing him in reasonable apprehension of immediately receiving a violent injury by the firing of a deadly weapon; Count 3-the felony murder of Freeman while in the commission of aggravated assault as alleged in Count 2; Count 4-the aggravated assault of Freeman by shooting him with a handgun; Count 5-the felony murder of Freeman while in the commission of aggravated assault as alleged in Count 4; Count 6-the aggravated battery of Freeman; Count 7-the felony murder of Freeman while in the commission of aggravated battery as alleged in Count 6; Count 8-possession of a firearm during the commission of malice murder as alleged in Count 1; Count 9-possession of a firearm during the commission of aggravated assault as alleged in Count 2; Count 10-possession of a firearm during the commission of felony murder as alleged in Count 3; Count 11-possession of a firearm during the commission of aggravated assault as alleged in Count 4; Count 12-possession of a firearm during the commission of felony murder as alleged in Count 5; Count 13-possession of a firearm during the commission of aggravated battery as alleged in Count 6; and Count 14-possession of a firearm during the commission of felony murder as alleged in Count 7. Initially, Dent was tried before a jury beginning on February 9, 2015, but the trial ended in a mistrial on February 13, 2015, because of found improper jury conduct. Dent was retried before a jury August 24-28, 2015, and acquitted of Counts 1, 8, 12, and 14, but found guilty of the remaining charges. On August 28, 2015, he was sentenced to life in prison on Count 3, and a consecutive five years in prison on Count 10, "suspended upon no new violation of the law." The trial court ruled that the remaining guilty verdicts merged for the purpose of sentencing, and the ruling has not been challenged. See Dixon v. State ,
See Miranda v. Arizona ,
In the same indictment as Dent, Irving was charged with possession of a handgun within a school safety zone (Count 15) and possession of a pistol or revolver by a person under eighteen (Count 16). Irving testified as a witness for the State at Dent's trial, and he was offered a plea to a misdemeanor charge in exchange for his testimony.
OCGA § 5-5-20 provides:
In any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity, the judge presiding may grant a new trial before another jury.
OCGA § 5-5-21 provides:
The presiding judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.
The trial court, on request by Dent, agreed to give a voluntary manslaughter charge and did so following its instruction on malice murder. Neither party objected. The next day, the State argued that, under Edge , the modified merger rule applied to the felony murder charges, and requested that the judge instruct the jury pursuant to Edge. Dent joined in the prosecutor's request; however, the trial court declined to re-charge the jury, and neither party objected.
OCGA § 17-8-58 provides:
(a) Any party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. Such objections shall be done outside of the jury's hearing and presence.
(b) Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court's attention as provided in subsection (a) of this Code section.
OCGA § 16-5-2 (a) provides:
A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder.
The incorrect date appears in the warrants' supporting affidavits.
Only one of the warrants specifically named data ranging from October 1, 2014 to November 30, 2014. And, the supporting affidavits of both warrants contained the concluding statements that the searches were for data contained in the cell phones related to the alleged offender's activity "during the time frame both just prior to and immediately after the murder of Jevon Freeman."
OCGA § 17-5-30 (a) (2) provides:
(a) A defendant aggrieved by an unlawful search and seizure may move the court for the return of property, the possession of which is not otherwise unlawful, and to suppress as evidence anything so obtained on the grounds that:
(2) The search and seizure with a warrant was illegal because the warrant is insufficient on its face, there was not probable cause for the issuance of the warrant, or the warrant was illegally executed.
In his brief, Dent summarily asserts that, "[b]ut for trial counsel's deficient performance in that he failed to file a motion to suppress the aforementioned search warrants, there is a probability that there would have been a different outcome."
Counsel testified that he wanted to show that Dent did not "[get] up one morning and [start] searching how to kill people and what type of guns" but to show a range of topics any adolescent would search including "know how to shave" and "dance videos and that type of stuff."
Jackson v. Denno ,
OCGA § 16-3-24.2, effective July 1, 2014, provides:
A person who uses threats or force in accordance with Code Section 16-3-21, 16-3-23, 16-3-23.1, or 16-3-24 shall be immune from criminal prosecution therefor unless in the use of deadly force, such person utilizes a weapon the carrying or possession of which is unlawful by such person under Part 2 of Article 4 of Chapter 11 of this title.