Favors v. StateFavors v. State
Appellant Michael Favors was convicted of murder, burglary, aggravated assault on a peace officer, and other related offenses in connection with the December 2003 shooting death of Theodore Barber. Favors now appeals, contending the trial court erred in admitting certain witness testimony and in sentencing him on certain counts, and claiming that his trial counsel rendered constitutionally ineffective assistance. Though we find no error in the verdicts and no ineffective assistance on the part of trial counsel, we do find error with respect to the trial court‘s merger of some offenses, and we therefore must vacate and remand to the trial court for proper merger and resentencing.1
Officer Davis returned to the apartment from which the 911 call had originated to find the door kicked in and a male victim lying on the floor bleeding from a fatal gunshot to the neck. Near the victim‘s body lay an unused 16-gauge shotgun. Also found at the scene were a .40 caliber shell casing and an unfired .40 caliber bullet. There was a shoe print on the broken door; the print resembled the tread pattern on shoes belonging to Favors.
The burgundy Expedition was determined to have been stolen at gunpoint from its owner a few days prior to the murder. A search of the vehicle uncovered fingerprints matched to Favors as well as a candy wrapper, which bore a fingerprint that was ultimately matched to McCoy.
Witness Taja Glenn, McCoy‘s girlfriend at the time of the crimes, testified at trial that on the day of the crimes, she and her friend Lakeesha Reese rode with Favors and McCoy in a burgundy Expedition, which McCoy told Glenn they had stolen. The foursome went to a nearby hotel, where they watched television and played video games and prepared to spend the night. Both men had guns with
The medical examiner testified that the victim had died from a gunshot wound to the chest.
1. Though Favors has not enumerated the general grounds, we have concluded that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Favors was guilty of all the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2. Favors contends the trial court erred in permitting Glenn to testify about (a) overhearing Favors and McCoy discussing their plan to “hit a lick” and (b) McCoy‘s subsequent statement to her that “the lick went bad” and the victim was shot. Favors contends that both his conversation with McCoy and McCoy‘s later statement were inadmissible hearsay and that, in combination, they violated Favors’ rights under the Confrontation Clause, see Bruton v. United States, 391 U. S. 123 (88 SCt 1620, 20 LE2d 476) (1968), because they were statements by a non-testifying co-defendant implicating Favors in the “lick.”
As an initial matter, the statements in question were both properly admitted under the co-conspirator exception to the hearsay rule. See former
As to the Confrontation Clause issue, “[a] defendant‘s Sixth Amendment right to be confronted by the witnesses against him is violated under Bruton ‘when co-defendants are tried jointly and the testimonial statement of a co-defendant who does not testify at trial is used to implicate the other co-defendant in the crime.‘” Ardis v. State, 290 Ga. 58, 60 (2) (a) (718 SE2d 526) (2011). Bruton thus applies only to out-of-court statements by non-testifying co-defendants that are “testimonial” in nature. Billings v. State, 293 Ga. 99 (4) (745 SE2d 583) (2013). A statement is testimonial if its “primary purpose . . . was to establish evidence that could be used in a future prosecution.” Pitts v. State, 280 Ga. 288, 289 (627 SE2d 17) (2006). Here, neither of the statements in question were testimonial in nature; the first was a conversation in furtherance of the criminal conspiracy, the second a statement made by a co-conspirator to his girlfriend, and neither was made under circumstances indicating the declarant‘s intent to provide evidence for a future prosecution. Indeed, “statements by a coconspirator made during and in furtherance of the conspiracy are not considered ‘testimonial’ and therefore do not require any constitutional scrutiny under the Confrontation Clause.” Paul S. Milich, Ga. Rules of Evidence, § 18.11, p. 717 (2014-2015 ed.). Accordingly, the trial court did not err in admitting these statements.
3. Favors next contends that the trial court erred in admitting Officer Davis’ testimony, in recounting her brush with the SUV in the apartment parking lot, that she made eye contact with the vehicle‘s driver and that “I know he saw me.” Favors claims this statement was improper speculation that went to the heart of the offense of aggravated assault on a peace officer, which requires knowledge of the victim‘s identity as a police officer. See
4. Favors also contends his trial counsel rendered ineffective assistance. To establish ineffective assistance of counsel, a defendant must show that his trial counsel‘s performance was professionally deficient and that but for such deficient performance there is a reasonable probability that the result of the trial would have been different. Strickland v. Washington, 466 U. S. 668, 695 (104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355 (3) (689 SE2d 280) (2010). To prove deficient performance, one must show that his attorney “performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d 637) (2013). Courts reviewing ineffectiveness claims must apply a strong presumption that counsel‘s conduct fell within the wide range of reasonable professional performance. Id. Thus, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course. Id. If the defendant fails to satisfy either the “deficient performance” or the “prejudice” prong of the Strickland test, this Court is not required to examine the other. See Green v. State, 291 Ga. 579 (2) (731 SE2d 359) (2012).
(a) Favors first claims that counsel performed deficiently in effectively conceding, during closing argument, Favors’ guilt on the theft by receiving and aggravated assault on a peace officer counts. At the new trial hearing, trial counsel testified that, after discussing possible defenses with Favors, he decided as a matter of trial strategy to concede guilt on these two counts. As to the theft by receiving count, there was clearly no prejudice in this strategy, given that Favors’ conviction on this count was ultimately vacated. As to the aggravated assault on a peace officer, Favors cannot establish deficient performance, given Officer Davis’ unequivocal and undisputed testimony recounting how Favors drove the SUV at her after she exited her patrol car in the apartment complex parking lot. In the face of such evidence, it was not objectively unreasonable to concede guilt on this offense in an effort to avoid a conviction on the more serious murder charges. See, e.g., Taylor v. State, 304 Ga. App. 395 (2) (b) (696 SE2d 686) (2010) (in light of quantum of evidence presented on lesser charge as opposed to more serious one, it was reasonable trial strategy to concede guilt on lesser charge).
(b) Favors also contends his trial counsel was ineffective in failing to object to two specific statements the prosecutor made during closing argument. Specifically, Favors asserts error in the prosecutor‘s invitation to jurors to “imagine what would be going through their minds, Mr. Barber‘s mind, the defendants’ minds” as they faced one another after the co-defendants broke through Barber‘s door. Favors claims this statement constitutes a prohibited “golden rule” argument. See Jackson v. State, 282 Ga. 494 (5) (651 SE2d 702) (2007) (explaining that a “golden rule” argument “‘either directly or by implication, tells the jurors that . . . they should put themselves in the injured person‘s place and render such a verdict as they would wish to receive were they in the (injured person‘s) position‘“). In addition, Favors takes issue with the prosecutor‘s statement to the effect that a juror‘s job is “to seek the truth. It‘s not to look for doubt.” Favors claims this argument misstated the quantum of proof required to convict and served to lessen jurors’ sense of responsibility. Pretermitting whether either of these statements would have given rise to a valid objection at trial, we find, given the isolated nature of each of these remarks and the wide latitude afforded counsel in closing argument, that trial counsel did not perform in an objectively unreasonable manner in failing to object thereto, nor did Favors’ defense suffer prejudice therefrom. See Smith v. State, 284 Ga. 599 (2) (a) (669 SE2d 98) (2008) (counsel‘s failure to object to “handful of comments” by prosecutor during closing was neither objectively unreasonable nor prejudicial to defense).
5. Favors asserts that the trial court erroneously sentenced him on the two firearm possession counts. Though we disagree with Favors’ contention, we have noted an error with regard to the merger of certain counts for judgment and sentencing. See Hulett v. State, 296 Ga. 49 (2) (766 SE2d 1) (2014) (merger error, even if it is not raised by the parties, may be addressed by appellate court sua sponte). As noted in footnote 1, supra, the trial court imposed a life sentence for malice murder; two five-year terms for firearm possession, to run concurrent with one another but consecutive with the life sentence; and a concurrent five-year term for aggravated assault on a peace officer. The court purported to “merge” the two felony murder verdicts, as well as the verdicts for aggravated assault and burglary, into the malice murder verdict.
As to the two felony murder counts, the trial court merely used incorrect nomenclature, as these verdicts did not “merge” into the
To determine whether one crime is included in another, and therefore merges as a matter of fact, the court must assess “whether conviction for one of the offenses is established by proof of the same or less than all the facts required to establish the other crime.” Grissom v. State, 296 Ga. 406, 410 (1) (768 SE2d 494) (2015). Both the malice murder and the aggravated assault counts, as indicted, were premised on the act of shooting Barber with a firearm. Because there is no evidence to suggest the occurrence of “an aggravated assault independent of the act which caused the victim‘s death,” see Coleman v. State, 286 Ga. 291, 295 (3) (687 SE2d 427) (2009), we conclude that the verdict on the aggravated assault alleged in Count 4 of the indictment merges as a matter of fact with the malice murder verdict for sentencing purposes. The burglary count, on the other hand, does not merge with malice murder as a matter of law, because each crime by definition requires proof of an element that the other does not. Compare
Regarding the firearm possession counts, these counts were predicated, respectively, on aggravated assault and burglary. We have held that
Accordingly, we vacate the sentencing order insofar as it purported to “merge” the two felony murder verdicts into the malice murder verdict; these verdicts, rather, stand vacated by operation of law. We also vacate the sentencing order insofar as it merged the burglary verdict into the malice murder verdict, and we direct the trial court to enter judgment and impose a sentence thereon.
Judgment affirmed in part and vacated in part, and case remanded for resentencing. All the Justices concur.