GREEN v. THE STATE.
S18A0796
Supreme Court of Georgia
August 20, 2018
Reconsideration denied September 10, 2018
304 Ga. 385
PETERSON, Justice.
FINAL COPY
Raymon Jamaal Green appeals his conviction for malice murder and other crimes, stemming from two different incidents occurring on May 9 and 21, 2010, the latter of which resulted in the death of Christopher Finney.1 Green
argues that the evidence was insufficient to support the verdicts and that the trial court erred in denying his motion for directed verdict as to certain counts. He also argues that trial counsel provided ineffective assistance in failing to move to sever the counts related to the May 9 incident, introduce a certified copy of a burglary conviction of a key State witness (Tony Chatfield), seek a jury instruction on impeachment by felony conviction, and argue in closing that Chatfield‘s conviction rendered his testimony unbelievable. Because the evidence is sufficient to support Green‘s convictions and he has not shown that he was prejudiced by any of the alleged deficiencies of counsel, we affirm.
The trial evidence viewed in the light most favorable to the verdicts showed that on the evening of May 9, Nadina Waller, her mother Diane Waller, and Nadina‘s minor daughter and niece entered a convenience store. There, Nadina saw Green and co-defendant Demeko Wilson. Nadina told Diane that Wilson was the man who had broken into Nadina‘s home. The Wallers confronted Wilson, eventually taking their altercation outside. At one point, Wilson lifted up his shirt so Nadina could see a gun in his waistband andunsuccessfully attempted to coax Nadina behind the building. As the women began to drive away in their separate vehicles, they heard four or five shots fired. Turning around to check on her mother and the children, Nadina saw Green and Wilson running off in the same direction. None of the Wallers or their vehicles was shot.
On the evening of May 21, Christopher Finney and Tony Chatfield were walking together when they were approached by two men identified by Chatfield as Green and Wilson. Both Green and Wilson wore black hats. Chatfield saw that both men had
Shortly after the shooting, Green and Wilson briefly went to the home ofChatfield‘s sister, Whitney Waters, who lived less than half a mile from the street on which Finney was shot.3 At the house, Green and Wilson asked for bleach, a place to wash their hands, and use of a telephone. The two were breathing hard and seemed to be in a hurry. By the next morning, Waters found two black hats in a trash can in her back yard.
A .45 caliber shell casing and two .380 shell casings, all undamaged, were found at the scene of the May 21 shooting; the bullet that killed Finney was never found by police. The .45 caliber shell casing found at the scene of the May 21 shooting was fired from the same gun as one of the five .45 caliber shell casings collected at the scene of the May 9 incident. The other four .45 caliber shell casings collected at the scene of the May 9 incident were fired from a different gun.
1. Green argues that the evidence is insufficient to support his convictions and that the trial court erred when it denied his motion for directed verdict as to certain counts. We disagree.
We review the sufficiency of evidence for whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). This same standard applies when evaluating the denial of a defendant‘s motion for directed verdict. See Lewis v. State, 296 Ga. 259, 261 (3) (765 SE2d 911) (2014). “This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury‘s assessment of the weight and credibility of the evidence.” Hayes v. State, 292 Ga. 506, 506 (739 SE2d 313) (2013) (citation and punctuation omitted). “[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.” Graham v. State, 301 Ga. 675, 677 (1) (804 SE2d 113) (2017) (citation and punctuation omitted).
(a) Green first argues that there was insufficient evidence that he was involved in any of the alleged May 9 assaults. He notes that Diane Waller testified that she saw two figures in shadow at the time shots were fired, with only one of them, who she assumed was Wilson, shooting a gun. Greenemphasizes that no witness saw Green in possession of a firearm during the incident. And he suggests that the evidence was particularly weak as to the alleged aggravated assaults of Nadina and the children, given Diane‘s testimony that the shots were directed at her and evidence that Nadina already had pulled her car out ahead of Diane when the shots were fired.
The aggravated assault charges arising from the May 9 incident alleged that Green assaulted Nadina, Diane, and each of the two children by shooting at them with a handgun. Notwithstanding Green‘s arguments to the contrary, there is evidence that authorized the jury to conclude that Green shot in the direction of all four alleged victims. The women testified that they heard as many as five shots fired, and the ballistics evidence, coupled with testimony by Chatfield about the guns used by Green and Wilson, authorized a conclusion that two different guns were used in the assault, one of them by
Moreover, the statute under which Green was charged,
(b) Green argues that the evidence also is insufficient to support the convictions arising from the May 21 incident. He argues that the State did not show that he attempted to rob or assault Chatfield because there was noevidence that Green brandished a weapon at Chatfield or attempted to take anything from Chatfield by force. Green also argues that his murder conviction cannot be sustained because Chatfield was not credible when he testified that he saw Green and Wilson shoot at Finney and was able to identify the particular caliber of guns that each used. Noting that police found $878.37 in Finney‘s pockets, Green contends Chatfield‘s story is “inconceivable” because Green and Wilson would not have killed Finney to rob him without having taken the money.
Although Green questions the credibility of various aspects of Chatfield‘stestimony, it
2. Green also appeals on the basis that his trial counsel was ineffective in that counsel failed to move to sever the counts related to the May 9 incident, introduce a certified copy of Chatfield‘s burglary conviction, seek a jury instruction on impeachment by felony conviction, and argue in closing that Chatfield‘s conviction rendered his testimony unbelievable. We disagree, finding that Green has not met his burden to show that his case was prejudiced by any of these alleged deficiencies.
To prevail on his ineffectiveness claim, Green “must show that trial counsel‘s performance fell below a reasonable standard of conduct and that there existed a reasonable probability that the outcome of the case would have been different had it not been for counsel‘s deficient performance.” Scott v. State, 290 Ga. 883, 889 (7) (725 SE2d 305) (2012) (citing Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984)). Where an appellant fails to meet his burden in establishing one prong of the Strickland test, we need not review the other, as a failure to meet either of the prongs is fatal to an ineffectiveness claim. See Lawrence v. State, 286 Ga. 533, 533-534 (2) (690 SE2d 801) (2010). In order to show prejudice, the defendant must show that a reasonable probability exists that, but for trial counsel‘s errors, the outcome of the trial would have been different. Strickland, 466 U. S. at 694 (III) (B). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “We accept the trial court‘s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003) (citation and punctuation omitted).
(a) Green first argues that trial counsel was ineffective for failing to moveto sever the counts related to the May 9 incident from those related to the May 21 incident. Trial counsel testified at the motion for new trial hearing that he did not file a motion to sever because the trial court already had denied such a motion filed on behalf of co-defendant Wilson. Green argues on appeal that this was unreasonable because his argument for severing the counts was stronger than Wilson‘s.
Putting aside whether any motion to sever the counts would have been granted, we find that Green has not met his burden to show that he was prejudiced by trial counsel‘s failure to move to sever. Green makes no particular argument as to how counsel‘s failure resulted in confusion of the issues or some other prejudice; he merely speculates baldly that the joint trial produced a “smear effect.” “[M]ere speculation on the defendant‘s part is insufficient to establish Strickland prejudice[.]” Pierce v. State, 286 Ga. 194, 198 (4) (686 SE2d 656) (2009); see also Bogan v. State, 249 Ga. App. 242, 245 (2) (b) (547 SE2d 326) (2001) (“A defendant must do more than raise the possibility that separate trials upon the charges against him would have provided him a better chance of acquittal.“).
(b) All of Green‘s other claims of ineffectiveness relate to allegedshortcomings in counsel‘s use of Chatfield‘s prior felony conviction to challenge his credibility. During the defense‘s cross-examination of Chatfield, Chatfield volunteered that he was on probation, and defense counsel followed up by eliciting Chatfield‘s testimony that his probation was for a burglary conviction:
[CHATFIELD]: The only reason I was over at my sister‘s house because when I
first — when I had — When I first got in trouble, you know what I‘m saying, because I was — I‘m on — you know what I‘m saying? I‘m on probation. Q: Yes, sir.
A: When I got in trouble and then when I had got out, I was staying over at my sister‘s because I didn‘t have nowhere to go.
Q: You‘re on probation?
A: Yes, [sir].
Q: Is that for a burglary conviction?
A: Yes, sir.
Green argues on appeal that trial counsel was ineffective for not seeking admission of a certified copy of Chatfield‘s conviction, not seeking a jury instruction on impeachment by felony conviction, and not raising the conviction in closing. Again, even assuming that trial counsel rendered deficient performance in handling Chatfield‘s conviction, Green has not met his burden to show that he was prejudiced by any failing of counsel.
Green characterizes the references to Chatfield‘s probation for burglaryduring Chatfield‘s testimony as “so vague and fleeting that they were essentially unnoticeable.” He contends that the outcome of the case might have been different if counsel had emphasized Chatfield‘s conviction via documentary evidence and closing argument. But we reject Green‘s characterization of the evidence of Chatfield‘s conviction as “unnoticeable.” And although Green points out that the jury would have had possession of a certified copy of Chatfield‘s conviction during its deliberations if his lawyer had successfully moved for its admission, we cannot say that such documentary evidence, even if emphasized in argument, would have changed the outcome of those deliberations. This is insufficient to show prejudice. See Green v. State, 281 Ga. 322, 323 (2) (638 SE2d 288) (2006) (no prejudice in counsel‘s failure to comply with reciprocal discovery procedures, resulting in trial court‘s refusal to allow impeachment of witness by certified copies of his felony convictions, where the jury was informed of witness‘s criminal history during his testimony and was instructed on the law of impeachment); Ross v. State, 231 Ga. App. 793, 798 (6) (499 SE2d 642) (1998) (no prejudice in failing to impeach witnesses with certified copies of their felony convictions where both admitted to participating in crimes for which the defendant was on trial and one admitted that he was onparole at the time of the crimes).
Green argues that counsel‘s failure to tender the certified copy of the conviction hurt his defense because trial counsel incorrectly thought this omission precluded him from obtaining a jury instruction on impeachment by felony conviction. But Green cannot obtain a new trial on the ground that his lawyer failed to request such an instruction — whether due to a misunderstanding about evidence law on counsel‘s part or otherwise — because he cannot show that he was prejudiced by this omission from the charge. The defendants impeached Chatfield in multiple ways. In addition to eliciting Chatfield‘s testimony that he was on probation for burglary, the defense highlighted inconsistencies between this trial testimony and a prior statement to law enforcement, including as to the type of gun carried by Wilson. The defense also elicited Chatfield‘s testimony that he failed to summon police on the night of the shooting and that medication he was taking at the time of the shooting sometimes made him “a little sluggish, a little off[.]” The trial court instructed the jury on impeachment generally, and impeachment specifically by disproving the facts to which the witness testified or proof of prior contradictory statements. The trial court also told the jury that, in determining the believability ofwitnesses, it “may also consider [the witness‘s] personal credibility insofar as it may have been shown in your presence and by the evidence.” The jury thus was given several reasons to question Chatfield‘s credibility and instructed on how those factors might properly inform its consideration of the case. Green has not shown that any marginal additional benefit he might have received in having the jury fully instructed on how it might properly consider evidence of Chatfield‘s prior conviction would have changed the outcome of his trial. See Brown v. State, 289 Ga. 259, 260-261 (2) (710 SE2d 751) (2011) (finding trial court‘s error in refusing to give impeachment by prior conviction instruction harmless, where evidence
Judgment affirmed. Hines, C. J., Melton, P. J., Benham, Hunstein, Nahmias, Blackwell, and Boggs, JJ., concur.
Judge Christian
Bibb Superior Court