Harris v. StateHarris v. State
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After a jury trial that was held in July and August 2019, Demartre Harris was convicted of felony murder and other crimes for his involvement in two drive-by shootings that injured Laundon Alexander and Patrick Boyd and resulted in the death of Marcus Bowden.1 Harris raises four claims of error on appeal: (1) that the
1. Viewed in the light most favorable to the verdicts, the evidence presented at Harris‘s trial showed the following. On November 21, 2015, Harris picked up his girlfriend, Jackie Pearson, from a Piggly Wiggly grocery store and the two of them then went to the M&N Package Store in Columbus. As Pearson walked inside the package store, three men, whom she did not know, walked out.
Harris was a member of the “Bounty Hunter Bloods” gang. About 15 minutes after he was attacked, he sent a Facebook message to a fellow gang member, Spencer Marshall, saying “Come get me blood, I just got jumped.” As part of his exchange with Marshall, Harris messaged, “Everybody dies.” Marshall later testified that the men who attacked Harris were members of rival gangs.
At approximately 6:00 p.m. on November 23—two days after Harris was attacked—Alexander and Boyd were standing in the yard at Ms. Mary‘s house. Alexander was there to visit Bowden and
The police arrived after the shooting and collected a total of five shell casings that were on a street adjacent to Ms. Mary‘s house. The shell casings included three Smith & Wesson .40-caliber shell casings, one PMC .25-caliber shell casing, and one .22-caliber shell casing.
The next day, Harris borrowed Pearson‘s white Ford Explorer at 11:00 a.m., when Pearson returned home from work. Antoine Gardner left with Harris in the Explorer. At 11:30 a.m., Bowden and Harold Prude visited Ms. Mary‘s house; Bowden went inside but Prude stayed outside. Prude testified that he was standing in the yard near the fence when he heard gunshots coming from an “SUV” that “looked like white, but I ain‘t had time to stand there and look.”
Officers arrived at the scene at about 11:55 a.m. and recovered six .40-caliber bullets, two .40-caliber shell casings, and a 9 millimeter cartridge. Law enforcement officials identified Harris as a suspect in Bowden‘s murder, and in the course of looking for Harris the next day, executed a search warrant on Gardner‘s house. They did not find Harris, but did find Gardner—who had left with Harris
Approximately three months later, after further investigation revealed Harris‘s possible location, Lieutenant Lance Deaton and a team of officers secured and executed a search warrant on a residence that belonged to two of Harris‘s friends. Once the officers entered the home, they learned that Harris was barricaded inside one of the bedrooms. Officers breached the door and took Harris into custody. Under the cushion of the sofa located in the room in which Harris barricaded himself, Lieutenant Deaton located a loaded Taurus .45-caliber handgun with an extended magazine, along with .223-caliber and .357-caliber ammunition. The handgun was not the same caliber as the weapons believed to be used in the November 23 and 24 shootings.
At trial, a Georgia Bureau of Investigation (“GBI“) firearm
With respect to the .22-caliber shell casing officers retrieved from Pearson‘s white Explorer, the GBI firearm examiner testified that the casing‘s individual characteristics indicated it was fired
Finally, the State tendered an expert whom the trial court qualified to testify about gang culture in the Columbus area. He testified that a low-ranking member of a gang, like Harris, would be required to retaliate against members of a different gang who disrespected him in order to retain his position in the gang. As part of the final jury instructions, the trial court charged on Georgia‘s “party to a crime statute,”
2. Harris contends that the evidence was legally insufficient to support his convictions because the case against him was entirely circumstantial and there was no direct evidence that he took part in either the November 23 or 24 drive-by shootings. Specifically, Harris asserts that there was no physical evidence and no witness that placed him at the scene of either shooting; that no murder weapon was ever found with respect to the November 24 shooting;
When evaluating a challenge to the sufficiency of the evidence [as a matter of constitutional due process], we view all of the evidence presented at trial in the light most favorable to the verdict[s] and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted.
Jones v. State, 304 Ga. 594, 598 (820 SE2d 696) (2018) (citing Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979)). “We leave to the jury the resolution of conflicts or inconsistencies in the evidence, credibility of witnesses, and reasonable inferences to be derived from the facts,” Smith v. State, 308 Ga. 81, 84 (839 SE2d 630) (2020), and we do not “reweigh the evidence.” Ivey v. State, 305 Ga. 156, 159 (824 SE2d 242) (2019)
As a matter of Georgia statutory law, “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”
The evidence here, although circumstantial, was sufficient to convict Harris as a matter of constitutional due process and under Georgia statutory law. To begin, the State introduced evidence that Harris was a gang member and that he was attacked by rival gang members days before the November 23 and 24 drive-by shootings. Through its expert, the State also introduced evidence that Harris had a motive to retaliate against the men who attacked him. The State also established that the rival gang members who attacked Harris tended to congregate at the house where the November 23
As to the November 24 shooting, Pearson‘s testimony placed Harris with Gardner in Pearson‘s white Explorer at 11:00 a.m., minutes before the 11:30 a.m. shooting that resulted in Bowden‘s death. And at least one witness placed a white Explorer at the scene of the November 23 shooting, with a different witness placing a white Explorer at the scene of the November 24 shooting. The State‘s ballistics expert also testified that the .40-caliber shell casings recovered from the scene of the November 24 shooting matched those recovered from the scene of the November 23 shooting, and Facebook posts showed that, days before the
3. Harris contends that the trial court erred by admitting evidence of the weapons and ammunition officers found at the time of Harris‘s arrest. We disagree.
In his motion for new trial, Harris argued that the trial court violated
On appeal, Harris again contends that this evidence was irrelevant under Rule 401 and unfairly prejudicial under Rule 403. The admission of evidence “lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” Flannigan v. State, 305 Ga. 57, 62 (823 SE2d 743) (2019) (citation and punctuation omitted).
The trial court did not abuse its discretion by concluding that the evidence the State presented about the handgun and ammunition found with Harris at the time of his arrest was relevant under Rule 401. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
Moreover, we cannot say that the introduction of this evidence was unduly prejudicial under Rule 403. “Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
Here, the evidence related to Harris‘s attempt to evade arrest by barricading himself in a room—evidence that included the handgun and ammunition that was found near Harris at the time of his arrest—had probative value because it suggested that Harris had a reason to evade law enforcement officers and therefore demonstrated Harris‘s consciousness of guilt. And in a circumstantial case like this one, the need for this type of evidence was greater because it provided an additional set of facts from which the jury was authorized to infer Harris‘s guilt. See Rowland, 306 Ga. at 65 n.4.
Nor does the danger of unfair prejudice substantially outweigh the probative value of the evidence that was admitted. That is particularly true because the State did not argue that the gun and ammunition recovered during Harris‘s arrest were used in the November 23 or 24 shootings. And even though “inculpatory evidence is inherently prejudicial” in a criminal case, Rule 403 does not bar admission of such evidence merely because the defendant might suffer some amount of prejudice upon its introduction; it “is only when unfair prejudice substantially outweighs probative value that the rule permits exclusion,” Anglin v. State, 302 Ga. 333, 337 (806 SE2d 573) (2017) (citation and punctuation omitted; emphasis in original), and Harris has not shown that he suffered such prejudice. Accordingly, the trial court did not abuse its discretion when it admitted evidence of the handgun and ammunition that were found with Harris when he was arrested.
4. Harris contends that the trial court erred by admitting evidence of his Facebook posts. Prior to trial, Harris made a motion
To that end, during Marshall‘s direct examination, the State attempted to introduce a series of message exchanges on Facebook between Harris and Marshall, which included a photograph Harris sent of an “XD Springfield 40“—a gun Harris claimed to possess. The State argued that the picture and messages were relevant because they were sent on November 14, 2015, ten days before Bowden‘s murder, and the gun pictured in Harris‘s Facebook messages was one of the types of guns that the State‘s expert testified could have fired the .40-caliber rounds found after both the November 23 and 24 shootings. The trial court overruled Harris‘s objection, concluding that the photograph was relevant and that the evidence did not violate Rule 403.
Nor did the trial court abuse its discretion in concluding that the admission of the Facebook evidence did not violate Rule 403. Even to the extent the Facebook picture and messages were prejudicial to his defense, he has not shown that they were unfairly prejudicial. See Anglin, 302 Ga. at 337. And any prejudicial effect Harris suffered as a result of the admission of that evidence was outweighed by its probative value, especially given that it was used to show—in a circumstantial case in which no murder weapon was
5. Harris contends that his trial counsel provided ineffective assistance under the Sixth Amendment to the United States Constitution because she failed to call Dashauna Wilborn as a witness at trial. His claim fails, however, because he has not shown that his counsel‘s performance was deficient.
To prevail on a claim of ineffective assistance of counsel, a defendant generally must show that counsel‘s performance was deficient and that the deficient performance resulted in prejudice to the defendant. See Strickland v. Washington, 466 U.S. 668, 687-695 (104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355, 356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a defendant must demonstrate 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 (745 SE2d 637) (2013); see also Strickland, 466 U.S. at 687-688. To satisfy the prejudice prong, a defendant must establish a reasonable probability that, in the absence of counsel‘s deficient performance, the result of the trial would have been different. See Strickland, 466 U.S. at 694. “If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.” Lawrence v. State, 286 Ga. 533, 533-534 (690 SE2d 801) (2010).
Harris contends that his trial counsel should have called Wilborn as a witness at trial because she saw Harris being attacked at the M&N Package Store and also observed the November 23 and 24 shootings. According to Harris, Wilborn would have testified that Pearson‘s white Explorer was not the same SUV used in the November 23 and 24 shootings.
First, Ms. Wilborn never spoke with the police on the day or night of the shootings despite claiming to have had a clear view of those shootings and despite personally knowing the victims.
Second, when she did speak with the police a few days after the murder, she gave them far less information than she testified to during the motion for new trial hearing five years later, and she in fact told the police she was unable to provide further information. . . .
. . .
Fifth, while Ms. Wilborn testified at the post-trial hearing that the vehicle involved in the November 21 assault was a Ford Explorer, she did not make such a statement to the police after the shooting. Similarly, while she testified at the post-trial hearing that the vehicle involved in the November 24 murder was a Tahoe, there is no indication she told the police that when questioned after the shooting. While she did apparently tell the police that the vehicle involved on November 23
was “different from that of today‘s date” (presumably November 24), she “was unable to provide any further details about what occurred.” It seems likely that her memory and knowledge of the events she claims to have witnessed would have been far better when she spoke with the police days after the murder than it was at the time of the post-trial hearing, nearly five years after the murder. This casts doubt on her 2020 testimony.
The trial court ultimately concluded that
[i]t is not at all clear that Ms. Wilborn‘s testimony (even if believed) would have likely led to a different outcome in this case or that it would have materially helped Defendant at all. Critically, other credible evidence supported the State‘s theory that a white SUV was involved in all three incidents and that the Defendant had access to and use of a white SUV during the relevant times. While Ms. Wilborn identified three different vehicle models, she nonetheless testified that a white SUV was involved in all three incidents. This testimony could have easily hurt, rather than helped, the defense.
We “ordinarily afford great deference to credibility determinations by trial courts, including in the motion-for-new-trial context,” Debelbot v. State, 305 Ga. 534, 540 (826 SE2d 129) (2019), and we cannot say that the trial court‘s credibility findings were clearly erroneous here. See Grimes v. State, 296 Ga. 337, 346 (766 SE2d 72) (2014) (“In the absence of a showing of clear error, we do
And even though trial counsel testified at the motion-for-new-trial hearing that she “d[id] not know” why she did not call Wilborn as a witness at trial, an attorney‘s professed reason for making a decision at trial does not determine whether the attorney‘s performance was deficient under Strickland. Indeed, Strickland imposes an “objectively unreasonable” standard for analyzing deficiency, Romer, 293 Ga. at 344, and in light of the trial court‘s express findings about Wilborn‘s credibility, we cannot say that trial counsel was objectively unreasonable not to call Wilborn as a witness, see Strickland, 466 U.S. at 687-688.
Judgment affirmed. All the Justices concur.