S19A0533. FRANKLIN v. THE STATE.
Supreme Court of Georgia
OCTOBER 7, 2019.
306 Ga. 872
BLACKWELL, Justice.
FINAL COPY
Cleandre Franklin was tried by a Fulton County jury and convicted of murder and other crimes in connection with the fatal shooting of Marvin Wiley. Franklin appeals, contending that the evidence is legally insufficient to sustain his convictions, that the trial court erred when it allowed a witness for the prosecution to tеstify notwithstanding that the witness violated the rule of sequestration, and that he was denied the effective assistance of counsel. Upon our review of the record and briefs, we see no reversible error and affirm.1
1. Viewed in the light most favorable to the verdict, the evidence shows that Wiley left his homе in southwest Atlanta on the afternoon of September 10, 2018, driving a red Pontiac G8 with red rims. Only moments later, two gunshots rang out, and a silver car sped past the house, failing to stop at a nearby stop sign. After relatives were unable to reach Wiley by phone, Parnell Hawkins2 set out from the house and walked in thе direction in which Wiley had driven. Hawkins was followed by Reginald Ball.3 Hawkins and Ball found Wiley, slumped over the steering wheel of his Pontiac, which had run off the road a short distance from the house. Wiley had sustained a gunshot wound to the head, and he later died as a result of that wound.
Investigators soon turned their attentiоn to Franklin, who drove a silver Chevrolet Impala. The investigators learned that, earlier on the day of the shooting, Wiley had driven to the home of Alimah Franklin — Franklin‘s estranged wife — to confront her about an incident on a school bus involving their respective daughters. After heated words were exchаnged, Wiley returned to his own home, and Franklin came to see Alimah. She told Franklin about the confrontation and that the man who confronted her drove a red car with red rims. Franklin then left Alimah‘s house, driving his silver Chevrolet, in search of a red car with red rims.
The investigators tried to arrange a meeting with Franklin, but they werе unsuccessful. On October 12, police officers found Franklin‘s silver Chevrolet at a gas station in Mableton. The car was
At trial, Franklin argued that he shot Wiley in defense of self and that the shooting was justified, but the jury rejected that argument.6 On appеal, Franklin contends that the State failed to present sufficient evidence to sustain his convictions, and he specifically argues that the State failed to disprove his claim of justification. In support of these contentions, Franklin points to conflicts in the evidence and questions about thе credibility of Hawkins and other witnesses for the prosecution. But as we have explained time and again, “[i]t is for the jury to resolve conflicts in the evidence and questions of witness credibility, not this Court.” Wright v. State, 296 Ga. 276, 284 (3) (766 SE2d 439) (2014). See also Graham v. State, 301 Ga. 675, 677 (1) (804 SE2d 113) (2017) (“[I]t is the role of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient.” (Citation and punctuation omitted)); White v. State, 287 Ga. 713, 715 (1) (b) (699 SE2d 291) (2010) (“[J]ustification [is] for the jury to decide, and the jury is free to reject a defendant‘s claim that he acted in self-defense.” (Citation omitted)). Viewing the evidence in the light most favorable to the verdict, we conclude that the evidence was sufficient to authorize a rational jury to find
2. Franklin contends that the trial court errеd when it allowed Jermaine Wiley7 to testify after he violated the rule of sequestration.8 When the rule of sequestration is invoked, witnesses are barred from the courtroom “so that each witness cannot hear the testimony of other witnesses[.]”
In the first place, it is not clear that Jermaine was a witness subject to the rule of sequestration at any point before the prosecution called him to the stand. And in any event, a trial court enjоys considerable discretion to decide whether the testimony of a witness who has violated the rule nonetheless should be allowed. See United States v. Wylie, 919 F2d 969, 976 (IV) (A) (5th Cir. 1990).9 The rationale for disallowing the testimony of a witness who
Even so, Franklin contends, the trial court should have given a curative instruction to the jury about his violation of the rule of sequestration. But Franklin did not ask for a curative instruction, аnd we see no plain error in the failure to give such a charge. As we have explained before,
a failure to charge amounts to plain error only to the extent that the failure to charge was erroneous, the error was obvious, the failure to charge likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.
Shaw v. State, 292 Ga. 871, 873 (2) (742 SE2d 707) (2013) (citation and punctuation omitted). Even if the failure to give a curative instruction was error, it was not obvious error, inasmuch as Franklin has not identified any controlling precedent that requires a curative instruction on the rule of sequestration when an unexpected witness is allowed to testify as the result of surprise developments at the trial and the witness had been in attendance at the trial prior to the occurrence of those developments. See Simmons v. State, 299 Ga. 370, 374 (2) (788 SE2d 494) (2016) (holding that “[a]n error cannot be plain where there is no controlling authority on point“) (citation and punctuation omitted). Moreover, Franklin
3. Last, Franklin contends that his trial counsel was ineffective because she failed to file a mоtion to bifurcate and failed to correct a misimpression on the part of the prosecuting attorney about the criminal history of a witness. To prevail on a claim of ineffective assistance, Franklin must prove both that the performance of his lawyer was deficient and that he wаs prejudiced by this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). To prove that the performance of his lawyer was deficient, Franklin must show that the lawyer performed her duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. Id. at 687-688 (III) (A). See also Kimmelman v. Morrison, 477 U. S. 365, 381 (II) (C) (106 SCt 2574, 91 LE2d 305) (1986). And to prove that he was prejudiced by the performance of his lawyer, Franklin must show “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U. S. at 694 (III) (B). See also Williams v. Taylor, 529 U. S. 362, 391 (III) (120 SCt 1495, 146 LE2d 389) (2000). This burden is a heavy one, see Kimmelman, 477 U. S. at 382 (II) (C), and we conclude that Franklin has failed to carry it.
(a) Franklin argues that his trial counsel was ineffective because she failed to file a motion to bifurcate his trial for possession
(b) Franklin also contends trial counsel was ineffective because she failed to inform the prosecuting attorney before trial that Alimah previously had entered a guilty plea as a first offender and, therefore, could not proрerly be impeached on general credibility grounds with that plea. See Davis v. State, 269 Ga. 276, 277-278 (2) (496 SE2d 699) (1998). The prosecuting attorney apparently did not understand the circumstances of that plea, and at trial, he asked Alimah if she had been convicted for lying. Franklin‘s counsel promptly objected and the trial court sustаined the objection. Franklin now argues that his counsel should have presupposed that the prosecuting attorney would not understand the circumstances of the plea and done something to head off the attempted impeachment before it occurred. But as trial counsel exрlained at the hearing on the motion for new trial, she did not inform the prosecuting attorney before trial about the circumstances of the plea because she had no reason to think that the prosecuting attorney misunderstood them and would attempt to impeach Alimah with a nonexistеnt conviction. It was not deficient in this instance for trial counsel to fail to foresee that the prosecuting attorney would try to elicit inadmissible evidence as a result of a misunderstanding on his part. See Johnson v. State, 286 Ga. 787, 791 (2) (692 SE2d 575) (2010) (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight.” (Citation and punctuation omitted)).
Judgment affirmed. All the Justices concur.
DECIDED OCTOBER 7, 2019.
Murder. Fulton Superior Court. Before Judge Whitaker.
Christina M. Kempter, for appellant.
Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Kevin C. Armstrong, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ashleigh D. Headrick, Assistant Attorney General, for appellee.