Appellant Joe Lee Farris was convicted and sentenced for the malice murder and armed robbery of Olugbenga Ikuesan in Gwin-nett County, as well as the aggravated assault of the victim with intent to rob, the aggravated assault of the victim by shooting him with a deadly weapon, and for being in possession of a firearm during the commission of a felony.
The State presented evidence that the victim was found in his red tow truck on a Norcross road the morning of May 9, 2007, having died as a result of a gunshot wound to the center of the back of his head. A 9mm bullet was recovered from the victim’s head, and a 9mm shell casing was found near the front tire on the driver’s side of the victim’s truck. A detective conducting a consent search of the Carrollton home where appellant was staying in May 2007 found a black bag containing a 9mm handgun wedged into an area under
In the tow truck with the victim were two cellular phones, and phone records revealed that appellant and the victim used their cellular phones to call one another several times from the early morning hours of May 7 through 12:35 a.m. on May 9. Appellant was identified as the man seen talking with the victim at 11:35 p.m. the night the victim was killed. Found in the tow truck with the victim was an undated bank deposit slip listing $850 cash and two checks, one for $50 and one for $90. The two checks listed on the deposit slip were found in the victim’s truck, but the cash was not. The woman with whom the victim was living at the time of his death testified that, the day before he was killed, the victim had $1,000 he had withdrawn from a bank. The victim was found with his pants pockets turned inside out, and appellant, who was not known to have even $100, paid the Carrollton homeowner $300 in mid-May.
Appellant testified that he met the victim a few days before he was killed, that the victim had told him he wanted to die, and that the victim had given appellant a gun in a black bag. Appellant testified he returned the weapon to the victim before the victim was killed. Several people close to the victim testified he was in good health, was not depressed, and was days from departing on a long-awaited trip to Nigeria. An employee of a fast-food restaurant a mile from the crime scene testified appellant was in the restaurant from approximately 1:00 a.m. to 4:00 a.m. on May 9 and was not winded, upset, or disheveled when he arrived at the restaurant.
1. Appellant contends the evidence was not sufficient to authorize the jury to find him guilty beyond a reasonable doubt due to the lack of physical evidence linking him to the crime. The appellate court reviews the evidence “ ‘in the light most favorable to the verdict, giving deference to the jury’s determination on the proper weight and credibility to be given the evidence.’ [Cit.]” Manuel v. State,
2. During the testimony of the investigation’s lead officer, the State played before the jury a DVD of a 90-minute interrogation of appellant in which he made an inculpatory custodial statement. Appellant contends the statement should have been suppressed because it was not voluntarily given since the interrogating detective did not ensure that appellant understood his rights and did not determine whether appellant was impaired or laboring under a physical disability. At a hearing held pursuant to Jackson v. Denno,
At the conclusion of the hearing, the trial court, after employing the preponderance of the evidence standard and considering the totality of the circumstances, determined the statement was admissible, finding that appellant was advised of, understood, and voluntarily waived his rights under Miranda v. Arizona,
3. Appellant asserts that trial counsel rendered ineffective assistance of counsel because she failed to secure an expert witness to narrow the time frame within which the medical examiner testified the victim died. The medical examiner estimated the time of death to be between 9:30 p.m. on May 8 and 1:30 a.m. on May 9. Telephone records reflected that the victim spoke with a dispatcher for the American Automobile Association (AAA) at 12:15 a.m. on May 9 about assisting a stranded motorist, and that the victim spoke with appellant at 12:35 a.m. The victim did not respond to phone calls made to him by AAA and the stranded motorist at 1:00 a.m. and afterward. An employee of a nearby fast-food restaurant identified appellant as the man who came into the restaurant sometime around 1:00 a.m. and was not flustered, nervous, acting bizarrely, or sweating profusely, and left shortly before 4:00 a.m.
To prevail on his claim of ineffective assistance of trial 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 court must indulge a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” [Cit.]
(Citation and punctuation omitted.) Ford v. State,
Judgment affirmed in part, vacated in part, and case remanded with direction.
Notes
The victim was killed the night of May 8-9,2007. On August 1,2007, a Gwinnett County grand jury returned a true bill of indictment charging appellant with malice murder, felony murder with aggravated assault by shooting the victim as the predicate felony, felony murder with armed robbery as the predicate felony, armed robbery, two counts of aggravated assault (assault with intent to rob and assault with a deadly weapon (handgun)), and three counts of possession of a firearm during the commission of a felony. In a trial that commenced on August 31, 2009, and concluded on September 4, 2009, appellant was found guilty of all charges. On September 10,2009, the trial court filed the sentences it imposed: life imprisonment for malice murder; terms of 20 years for armed robbery and each of the aggravated assault convictions, to be served concurrently with each other and consecutively to the sentence of life imprisonment; and a five-year term for possession of a firearm during the commission of a felony, to be served consecutively to the other sentences imposed. The felony murder convictions were vacated by operation of law, and the trial court merged the three firearm possession convictions. Appellant’s motion for new trial, filed on September 14, 2009, was amended by new appellate counsel on January 7, 2011. The trial court held a hearing on the motion on January 7 and denied the motion the same day. A timely notice of appeal was filed on February 4, 2011, and the case was docketed in this Court to the September 2011 term. It was submitted for decision on the briefs.