Floyd v. StateFloyd v. State
A Dougherty County jury found Louis Floyd, Jr. and Tara Lee Harrell guilty of murder and other offenses in connection with the death of William Jackson.1 Floyd and Harrell now appeal. Floyd
argues that the trial court erred by
1. The evidence presented at trial showed the following. Floyd and Harrell lived together for two years beginning in September 2011, during which time they were in a romantic relationship. Floyd is a black male, and Harrell is a white female.
Harrell also had a relationship with William Jackson, whom she and others knew as “TV Man.”2 Harrell and Jackson met in 2011
while Harrell‘s sister, Donna Timbes,
The relationship between Floyd and Harrell became strained and sometimes violent after Floyd learned that Harrell had started seeing Jackson. Floyd and Harrell had daily arguments about Harrell‘s relationship with Jackson, which were sometimes observed by others. They also argued because Floyd had begun sleeping with Timbes. Harrell would regularly go to the Dollar Inn to see Jackson after she and Floyd argued.
Jessica Arnold testified that she spoke with Floyd and Harrell at the gas station where Arnold worked. When Harrell mentioned Jackson in the context of being the father of Harrell‘s child, Floyd began to get angry and told Harrell that if he ever caught her around Jackson again, he would kill Jackson.
Another friend, Brandi Luke, testified that she had also been around Floyd and Harrell several times when Jackson came up in
Timbes also testified that Floyd and Jackson did not get along, and that Floyd said that he did not like Jackson because Jackson was seeing Harrell. Timbes testified about an incident in 2011 in which police were called to Floyd‘s house after he and Harrell got in an argument and punched each other when Floyd refused to take Harrell to the Dollar Inn. Timbes also testified that she had previously heard Floyd tell Harrell that if he ever saw her with Jackson again, he was going to kill Jackson.
Another sister of Harrell, Stephanie, testified that Floyd sometimes came to her house with Harrell. Stephanie testified that Floyd would regularly bring up Jackson in conversation and say that
Harrell testified that, on August 14, 2013, she drove herself and Floyd to the Dollar Inn to meet someone called “Georgia Boy” to buy drugs and alcohol. Harrell parked the car behind the building near a laundry room.
When they realized that Georgia Boy was not in his room, Harrell and Floyd walked to the front of the Dollar Inn and saw Shelby Royal (who was in a relationship with Timbes, Harrell‘s sister) and Carl Grant standing near a dumpster. Harrell said to Royal, “Have you heard what your girlfriend has been doing?” This angered Floyd because it was apparently in reference to Timbes trying to sleep with Floyd. Floyd knocked a drink from Harrell‘s hand and pushed her down because he thought she was trying to sleep with Royal. Floyd then waved a knife at Royal and Grant and threatened to kill them, after which Grant left and walked to his room on the corner of the Dollar Inn.
Floyd and Harrell walked back to their car. A man who had been sitting inside the laundry room heard some loud talking, came
According to Harrell, Jackson was sitting on a chair inside the room repairing an electronic device. Harrell told him she needed some tissue because Floyd had hit her, and Jackson let her go to his bathroom where Harrell began washing her hands. As Harrell moved back toward the door, Floyd ran in and said, “B****, what you in here for?” Harrell attempted to pull Floyd out of the room as he and Jackson began to fight, but Floyd pushed Harrell through the door of the room out onto the sidewalk. Outside, Harrell called out for help. Floyd and Jackson continued to “wrestle” inside the room, and Jackson tried to force Floyd out of the room. Their
Other accounts of the incident differed from the one given by Harrell at trial. According to Royal and Grant, after Floyd threatened them, Harrell started walking toward Jackson‘s room at the Dollar Inn. Harrell got about halfway inside the room and was shutting the door when Floyd ran over and “busted the door.” Harrell then fell to the ground, and Floyd jumped like he was trying to “get at” someone. Floyd and Jackson began “wrestling,” and Floyd yelled, “I knew you been sleeping with her.” Harrell then screamed, “Stop, stop, you[‘re] going to kill him.” Floyd and Harrell then came out of Jackson‘s room, and Floyd was holding a knife. They got into the car, and Harrell drove them away.
A resident of the Dollar Inn, John Barrentine, testified that he observed a car pull up near the door to Jackson‘s room. Floyd and a
Another resident of the Dollar Inn, Robert McGee, testified that on the night of the incident, he was sitting on the steps of a stairwell at the Dollar Inn drinking beer. He saw a woman get “pushed down” and knocked out of Jackson‘s room after which a black man4 went into Jackson‘s room and closed the door. McGee could hear arguing coming from inside the room. After about fifteen minutes, the man came out, and he and the woman got in their car
and left, heading toward Albany.
Lorenzo Simpson lived in the room next to Jackson‘s room at the Dollar Inn. On the night of the incident, Simpson was in his room playing a game when he heard someone say, “B****, what you doing in here?” Simpson then heard someone being struck, and he opened the door to his room. He saw Harrell fall out of the doorway of Jackson‘s room and begin crying. Simpson then shut his door and went back to playing the game. A couple seconds later, Harrell knocked on Simpson‘s door and asked him to come over because Floyd and Jackson were fighting. Harrell was saying “Y‘all stop. Y‘all stop. Somebody is going to get hurt.” Simpson came to the door of Jackson‘s room and saw Jackson push Floyd off of him. Jackson then turned his back to Floyd to go to his sink, and Floyd stabbed Jackson in the back. Floyd came out of the room and said to Harrell, “B****, get up and come on.” Floyd and Harrell then drove away.
Deedra Johnson, who also lived at the Dollar Inn at the time of the incident, went to the front of the motel to ask the manager some questions that evening. While Johnson was there, she heard someone screaming that Jackson had been stabbed, and she then saw Floyd and Harrell run from Jackson‘s room and get into a car. According to Johnson, Harrell was driving the car as it left the scene.
On the night of the incident, Timbes was at her mother‘s house. Late that night, Harrell called her and said that she was on the way to the house and had to tell her something. Harrell, who was driving the car when it arrived, “barged in” the house before Floyd came in. Harrell‘s mother and Timbes were there, and Harrell told them that Floyd and Jackson had gotten into a fight. Timbes testified that Harrell appeared nervous and scared. According to Timbes, Harrell told her that Floyd killed Jackson, but that she was going to say that
Floyd and Harrell then left her mother‘s house and drove away. Their car broke down, and Harrell then walked to a gas station nearby and called her aunt, Debra Thomas. Floyd told Harrell to tell Thomas that she killed Jackson after Jackson hit her in the face. According to Thomas, Harrell said that she had messed up and that she had stabbed Jackson but that she did not know that she had killed Jackson until she went back by the motel and saw the crime scene tape.
Harrell then called Jennifer Blount, Floyd‘s sister, and asked her to come and pick up Floyd because he was in trouble. According
Walter Floyd, Floyd‘s brother, testified that on August 14, he received a phone call telling him to look at the television to see what was going on at the Dollar Inn. He called Floyd‘s phone, and Harrell answered and said, “You are not recording my conversation, are you?” Harrell then said, “That motherf***er hit me in my face, and I stabbed him.” According to Walter, Harrell‘s voice was so “disturbed” that he felt that Floyd was in danger. Walter asked Harrell where they were, and she said that the car broke down and they were on the east side of Albany. Walter met Floyd and Blount at the gas station and drove Floyd to his house. Walter testified that Floyd told him that he and Harrell had gone to the Dollar Inn to try to get child support money from Jackson. When Floyd went into his house, police cars pulled in behind Walter, and officers got out with their guns drawn. Walter and Floyd were then taken to the police
Harrell spent the night at a nearby mobile home park. The next morning, she went across the street to a pawn store. Harrell asked an employee of the store to call 911 and tell the police that she was ready to turn herself in. After that call was placed, Harrell spoke with Tabetha Woodall in the store‘s parking lot. Woodall asked Harrell what was going on, and Harrell said that she was about to go to jail. When Woodall asked Harrell why, Harrell said that there had been an altercation at the Dollar Inn where someone was stabbed. Harrell also told Woodall that she and Jackson had “got into it” at the motel and that Jackson jumped on her. Harrell then told Woodall that her boyfriend “got involved with the situation” and that “they” — Harrell and her boyfriend — stabbed Jackson. Harrell was arrested later that morning.
Albany Police executed a search warrant at Floyd‘s and Harrell‘s residence, and collected a wet plaid shirt and a wet towel from the washing machine. Testing performed on the plaid shirt by a GBI forensic analyst indicated the presence of blood. Albany Police
The police interviewed Harrell, Walter Floyd, and Timbes. After being advised of her Miranda rights,5 Harrell told police that she had been at the Dollar Inn and that she had contact with Jackson on the night of the incident. The police investigator did not see any injuries to Harrell‘s face. In her interview, Timbes indicated that Harrell told her that Harrell stabbed Jackson. Timbes later posted a status on her Facebook account which read, “It‘s sad. She didn‘t do it. Floyd did. I know everything that happened.” In a later Facebook post, Timbes stated, “I don‘t know, but she said Floyd did it and that she needed to hide him in my house. I told him no; she will get out of jail.” Walter told police that Floyd told him that he
had been at the Dollar Inn that
An autopsy revealed that Jackson suffered a stab wound to his lower left chest area, resulting in the penetration of Jackson‘s pericardial sac and his heart and causing extensive bleeding into his chest cavity. This wound caused Jackson‘s death. Jackson also had a stab wound on the right side of his back and an incised wound on the third finger of his left hand. The medical examiner testified that the manner of Jackson‘s death was homicide and that his injuries were consistent with being stabbed with a knife.
Harrell testified on her own behalf. She stated that Floyd wanted her to cover up for him, but she denied that she ever told anyone that she was the person who stabbed Jackson. Floyd did not testify.
Although only Harrell has challenged the sufficiency of the evidence presented at trial, in accord with this Court‘s practice in
evidence.” (Citation and punctuation
2. Floyd argues that the trial court abused its discretion by not granting his motion to sever his trial from that of Harrell. We disagree.
In a murder case where the death penalty is not sought, the trial court has broad discretion to grant or deny a motion for severance. In ruling on a severance motion, the court should consider: (1) the likelihood of confusion of the evidence and law; (2) the possibility that evidence against one defendant may be considered against the other defendant; and (3) the presence or absence of antagonistic defenses.
(Citation and punctuation omitted.) Virger v. State, 305 Ga. 281, 290 (4) (824 SE2d 346) (2019). See also
Prior to trial, Floyd moved to sever the case. He argued that the State planned to introduce statements made by Harrell to law enforcement which incriminated Floyd but did not incriminate Harrell. Floyd argued that severance was appropriate under Bruton v. United States, 391 U. S. 123 (88 SCt 1620, 20 LE2d 476) (1968), because, if Harrell did not testify at trial, as was her right, Floyd would have no opportunity to cross-examine her about her statements that incriminated him. He also argued that, because he and Harrell were likely to present antagonistic defenses at trial, there was a significant risk that the jury would convict him based solely on Harrell‘s statements, notwithstanding any instructions given by the trial court regarding the jury‘s consideration of
At the pre-trial hearing on Floyd‘s motion to sever, the State argued that Harrell‘s statements at issue inculpated both her and Floyd, as her statements placed her at the scene of the crime at the time of the incident. The State also argued that the Bruton issue could be resolved by redacting references to Floyd from Harrell‘s statements before presenting them to the jury. The trial court ultimately denied Floyd‘s motion to sever, determining that witnesses who testified regarding statements Harrell made to them would omit any references to Floyd in such statements.
This case involved only two co-defendants, who were tried for the same crimes based on largely the same evidence, and the State‘s theory was that they acted together to commit the crimes. Thus, there was little likelihood that the issues to be tried would be confused or that evidence against one defendant would improperly be considered against the other. See Lupoe v. State, 300 Ga. 233, 242 (2) (c) (794 SE2d 67) (2016).
Floyd also argues that severance was required because he and
Moreover, severance was not necessary to avoid a Bruton violation in this case. “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.” (Citation and punctuation omitted.) Ardis v. State, 290 Ga. 58, 60 (2) (a) (718 SE2d 526) (2011). However, even assuming that some of Harrell‘s statements to other witnesses about Floyd were testimonial in nature,7 during the State‘s case, the trial court instructed witnesses who testified
For the reasons stated above, we see no abuse of the trial court‘s discretion in denying Floyd‘s motion to sever. This enumeration of error therefore fails.
3. Floyd argues that the trial court should have instructed the jury regarding self-defense. Because Floyd never requested that the trial court give that instruction as part of its charge to the jury, we review only for plain error. See State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011). See also
[T]o authorize a . . . jury instruction, there need only be slight evidence supporting the theory of the charge. And the defendant need not present evidence to support the theory of an affirmative defense if the State‘s evidence raises the issue. Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law.
(Citations and punctuation omitted.) McClure v. State, 306 Ga. 856 (834 SE2d 96) (2019). With respect to the affirmative defense of justification in the nature of self-defense,
A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself . . . against such other‘s imminent use of unlawful force; however, . . . a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself . . . .
A person is not justified in using force under the circumstances specified in subsection (a) of this Code section if he . . . [i]nitially provokes the use of force against himself with the intent to use such force as an excuse to inflict bodily harm upon the assailant; . . . [i]s attempting to commit, committing, or fleeing after the commission or attempted commission of a felony; or . . . [w]as the aggressor or was engaged in a combat by agreement unless he withdraws from the encounter and effectively communicates to such other person his intent to do so and the other, notwithstanding, continues or threatens to continue the use of unlawful force.
There was no evidence presented at trial to support a self-defense instruction. Floyd notes that the State, in its closing argument, argued that the fight between Floyd and Jackson was “not justification . . . not enough to warrant killing someone.” Floyd argues that this statement means the State was aware that self-defense was an issue the jury should consider in the case. However, as we have reiterated numerous times, statements made in closing arguments are not evidence. See, e.g., Gates v. State, 298 Ga. 324, 328 (4) (781 SE2d 772) (2016) (“[I]t is well settled that closing arguments do not amount to evidence.” (citation omitted)). As Floyd
4. Floyd also argues that he received ineffective assistance from his trial counsel in several regards. To prevail on his claims of ineffectiveness, Floyd
has the burden of proving both that the performance of his lawyer was professionally deficient and that he was prejudiced as a result. To prove deficient performance, [Floyd] must show that his trial counsel acted or failed to act in an objectively unreasonable way, considering all of the circumstances and in light of prevailing professional norms. To prove resulting prejudice, [Floyd] must show a reasonable probability that, but for counsel‘s deficiency, the result of the trial would have been different. In examining an ineffectiveness claim, a court need not address both components of the inquiry if the defendant makes an insufficient showing on one.
(Citations and punctuation omitted.) Stuckey v. State, 301 Ga. 767, 771 (2) (804 SE2d 76) (2017) (citing Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984)).
“A strong presumption exists that counsel‘s conduct falls within the broad range of professional conduct.” (Citation and punctuation omitted.) Ford v. State, 298 Ga. 560, 566 (8) (783 SE2d 906) (2016). Moreover, “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.” (Citation and punctuation omitted.) Davis v. State, 299 Ga. 180, 183 (787 SE2d 221) (2016). With these principles in mind, we consider each of Floyd‘s claims of ineffective assistance in turn.
(a) Floyd argues that, although at the close of the State‘s case, his trial counsel advised him of his right to testify and advised him against doing so, counsel performed deficiently by failing to consult with him and again discuss the advisability of testifying in light of the evidence later presented by Harrell. We disagree.
Here, the record established that, after the State rested, Floyd‘s trial counsel advised him regarding his right to testify and
Trial counsel confirmed at the hearing on the motion for new trial that, although she initially advised Floyd that he should not testify, she and Floyd did not discuss this issue again following Harrell‘s trial testimony. However, trial counsel also testified that her recommendation against testifying would not have changed and that she probably would have attempted to talk Floyd out of testifying had they discussed the issue again. Trial counsel testified that she believed it was unnecessary for Floyd to testify because it
Although Floyd claims that he would have testified had he consulted with his trial counsel again after Harrell testified, he has not established that trial counsel was deficient by failing to further consult with him about doing so. As we noted in Thomas v. State, 282 Ga. 894, 896 (2) (b) (655 SE2d 599) (2008), “[d]efense counsel bears the primary responsibility for advising the defendant of his right to testify and the strategic implications of this choice, as well as for informing the defendant that the decision whether to testify is his to make.” However, we went on to note the lack of authority supporting the proposition that this constitutional obligation extends “so as to require counsel to inform a defendant of a ‘continuing’ right to testify or . . . to re-advise a defendant of the right to testify” after further evidence is presented against him. Id. at 896-897 (2) (b). Although Thomas dealt specifically with whether counsel was required to re-advise the defendant of his right to testify after
(b) Floyd argues that his trial counsel performed deficiently by not requesting jury charges on self-defense because there was evidence presented at trial supporting that defense. We disagree.
As we discussed in Division 3 above, Floyd has pointed to no evidence presented at trial that would support the giving of such an instruction. Floyd‘s trial counsel also testified that she did not
Trial counsel‘s decision about which defense to present is a
(c) Floyd argues that his trial counsel‘s performance was deficient because counsel should have requested jury charges on the
(d) Floyd also argues that his trial counsel provided ineffective assistance by failing to consult with Floyd about requesting jury instructions on the lesser offenses of voluntary manslaughter and affray. However, pretermitting whether trial counsel‘s performance was deficient because of the failure to do so, Floyd has failed to show that he was prejudiced. Although counsel never discussed this issue with Floyd, Floyd has not shown that, had his trial counsel consulted with him, counsel would have requested instructions on the lesser offenses. Nor has he shown that there is a reasonable probability that pursuit of this alternate strategy would have changed the outcome of the case. See Blackwell, 302 Ga. at 826 (3). Floyd has maintained throughout these proceedings, including in his testimony in the hearing on his motion for new trial, that he had no involvement in Jackson‘s death, and his trial counsel pursued a trial strategy to that effect.10 Thus, there is no evidence that even if
Judgments affirmed. All the Justices concur.
DECIDED JANUARY 13, 2020 – RECONSIDERATION DENIED FEBRUARY 10, 2020.
Murder. Dougherty Superior Court. Before Judge Lockette.
James N. Finkelstein, for appellant (case no. S19A1493).
Gregory W. Edwards, District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew B. Crowder, Assistant Attorney General, for appellee.
Notes
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.