Appellant Neddrick Green was charged along with Jeremy Reynolds, Jr. and Allen Williams for the malice murder of Barry Bullard.
Viewed in the light most favorable to the verdict, the evidence at trial showed the following. The victim, Green, and Williams were friends who grew up together, and Reynolds “had just started hanging with” the three of them. At some point, the victim and Williams had had an argument or “a beef” because Williams believed the victim had stolen a gun from him. On July 30, 2008, Williams repeatedly drove by the victim’s home with a frown on his face. As a witness explained, Williams “was riding through mugging or whatever.” The victim’s friend knocked on the victim’s door to tell him that Williams was driving by his home “mean mugging.” The victim came outside with a ‘Tig gun” and kept it at his side.
At some point, Williams parked his car across the street from the victim’s apartment. Green, who was riding in the back seat of Williams’s car, got out and retrieved a “long gun.” Green got back in the car and the men drove up to the victim’s apartment, got out holding guns, and approached the victim. Green and Williams exchanged words with the victim and his friend while Reynolds was leaning against the hood of a car. Williams and Green then began punching the victim in the face while attempting to take his gun. The victim responded by telling the men to “chill.” As Williams and Green began to walk off, Reynolds walked up to the victim and shot him in the face. The victim fell but got up and exchanged gunfire with the three men, but died shortly thereafter.
1. Green does not challenge the sufficiency of the evidence to sustain his conviction. Nevertheless, as is this Court’s practice in murder cases, we have reviewed the evidence summarized above and conclude that it was sufficient to authorize a rational jury to find Green guilty beyond a reasonable doubt as a party to the crime of malice murder. Jackson v. Virginia,
2. Green argues that he was denied his right under the Constitution to effective assistance of counsel. To succeed on a claim that counsel was constitutionally ineffective, Green must show both that his attorney’s performance was deficient, and that he was prejudiced as a result. Strickland v. Washington,
(a) Green asserts that although it may have run counter to trial counsel’s principal trial strategy that he was present but not a party to the crime, counsel should have pursued instructions on mutual combat or self-defense because “[i]t is permissible to rely upon two seemingly inconsistent defenses.”
“To authorize a requested jury instruction, there need only be slight evidence supporting the theory of the charge. Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law. It is not error to refuse a justification charge where there is no evidence to support it.” (Citations and punctuation omitted.) Hicks v. State,
Because trial counsel could not render ineffective assistance for failing to request charges that would not have been adjusted to the evidence, Green has failed to make the necessary showing to establish constitutionally ineffective assistance of counsel.
(b) Green asserts that trial counsel was ineffective in failing to seek severance of his trial from that of his co-defendant Reynolds.
Green asserts that it was not possible for the jury to separate the facts because the evidence against Reynolds was stronger as it showed Reynolds had the gun used to kill the victim and was facing an
The evidence of Reynolds’ drug possession clearly did not directly implicate Green as the evidence showed that the drugs were found in a plastic bag in Reynolds’ mouth. Although the trial court did not specifically instruct the jury that the possession evidence “could be considered only against” Reynolds, see Billings v. State,
Trial counsel’s decision not to seek severance is presumed strategic. Even if counsel had filed a motion to sever, the court would not have abused its discretion in denying the motion as Green would not have been able to show prejudice from the joint trial. See Lupoe, supra,
Judgment affirmed.
Notes
The crime occurred on July 30, 2008. On September 8, 2008, a Tift County grand jury indicted Green for malice murder. Following a November 2010 trial, a jury found Green guilty, and he was sentenced to life in prison. His motion for ne w trial was filed on November 26, 2010, amended by new counsel on September 9, 2014, and denied on June 16, 2015. His notice of appeal was filed on June 17,2015. This case was docketed in this Court for the August 2017 term and submitted for a decision on the briefs.
Green presents no argument regarding his claim that he acted in self-defense, and we have found no evidence to support a jury instruction on that theory.
Trial counsel was deceased at the time of the hearing on the motion for new trial. However, “[e]ven where, as here, trial counsel is no longer available to testify regarding the manner in which he conducted appellant’s defense at trial, appellant must still overcome this presumption.” Jones v. State,