Ernest Airokhai Huff was tried by a Gwinnett County jury, and he was convicted of the murders of James Isaac, Ferris Weston, and Brian White, as well as conspiracy to traffic in cocaine. Huff appeals, asserting that the trial court erred when it denied his motion to suppress his custodial statement, that the trial court erred when it admitted certain evidence at trial, and that he was denied the
1. Viewed in the light most favorable to the verdict, the evidence shows that Isaac and White traveled from Virginia to Georgia, where they hoped to purchase a sizeable quantity of cocaine. Weston put them in touch with Huff and Theron Deushon Green, and the men eventually agreed to meet on the afternoon of February 29,2012 at an abandoned apartment near Lawrenceville, ostensibly for the purchase and sale of cocaine. Huff and Green, however, had other plans, which they shared with an acquaintance. Huff and Green intended to rob Isaac, White, and Weston, and they contemplated the use of an AK-47 riñe in connection with the robbery.
Several neighbors saw Huff in and around the abandoned apartment on February 29. One observed Huff with a gun, and another saw him installing blinds in the apartment. Another neighbor noticed Huff (accompanied by some other men) drive by the apartment, call out to a teenager, and recruit the teenager to stand near the apartment and keep watch. Around 5:30 on the afternoon of February 29, neighbors heard multiple gunshots from the apartment, and they saw a man — who resembled Huff — running from the scene.
Police officers arrived at the apartment shortly thereafter, where they found the bodies of Isaac, Weston, and White. Each had sustained multiple gunshot wounds. The officers found shell casings at the scene that were consistent with shots fired from an AK-47 rifle. In Huff’s home, investigators would later discover Wolf-brand 7.62 x 39 millimeter ammunition that also was consistent with the shell casings found at the scene.
Telephone call records showed multiple calls from Huff to Weston on the day of the murders. Huff was arrested a few weeks later, and
Huff does not dispute that the evidence is sufficient to sustain his convictions. Nevertheless, it is the practice of this Court in murder cases to review the evidence for legal sufficiency, even when the defendant does not complain about it. We have done so in this case, and we conclude that the evidence adduced at trial was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Huff was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
2. Before trial, Huff moved to suppress the custodial statement that he gave to investigators. According to Huff, the investigators made several comments — about Huff being present “for his children as they grew up” and that “the truth will set you free”—implying that Huff would be free to see his children if he admitted his involvement in the crimes. According to Huff, these comments generated a hope of benefit, which improperly induced him to give the statement. See OCGA § 24-8-824 (confession is inadmissible if it was “induced by another by the slightest hope of benefit”). In addition, Huff asserted that he gave at least part of his statement only after invoking his right to remain silent. Following a Jackson-Denno hearing,
For the purposes of OCGA § 24-8-824, a “hope of benefit” refers to “promises related to reduced criminal punishment — a shorter sentence, lesser charges, or no charges at all.” State v. Chulpayev, 296 Ga. 764, 771 (2) (770 SE2d 808) (2015) (citations and punctuation omitted).
As to Huff’s claim that he asserted his right to remain silent, the recording of the interrogation shows that, every time Huff made a statement that hinted at a desire to end the interrogation (by saying, for instance, that he would “rather do this in court”), Huff nevertheless continued talking to the investigators without additional prompting. His isolated statements expressing some degree of displeasure with the interrogation must be viewed in context, and we conclude that the trial court’s finding that Huff did not unequivocally assert his right to remain silent is not erroneous. See Williams v. State, 290 Ga. 418, 420 (2) (721 SE2d 883) (2012) (“we agree with the trial court that appellant’s statement ‘I can’t go on answering these questions’ was not an unambiguous and unequivocal assertion of the right to remain silent”).
3. Huff contends that the trial court erred when it admitted the testimony of his probation officer, who testified about a phone number that Huff had given to the officer. That number linked Huff to the phone from which numerous calls were placed to Weston on the day of the murders. Huff argues, however, that the State could have used other evidence to connect him to the phone, and that the testimony of his probation officer was unfairly prejudicial, inasmuch as it informed the jury that he was on probation. For that reason, he says, the trial court should have excluded the testimony of the probation officer under OCGA § 24-4-403, which provides that “[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 jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” We disagree.
First, the testimony of the probation officer was clearly relevant. See OCGA § 24-4-401. Moreover, it had substantial probative value. Connecting Huff to the phone from which calls were placed to Weston was an important part of the prosecution’s case, and although Huff
4. Huff claims that he was denied the effective assistance of counsel at trial. To prevail on a claim of ineffective assistance, Huff must prove both that the performance of his lawyer was deficient and that he was 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, Huff must show that his lawyer performed his 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, Huff 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 Huff has failed to carry it.
First, Huff contends that his trial lawyer should have called Brandon Ennis as a defense witness. According to Huff, Ennis would have impeached the testimony of the neighbor who claimed that —• on
Huff also contends that his trial counsel was ineffective because he failed to object to testimony for which, Huff says, the State had not laid a proper foundation. But the record shows that — when a police investigator sought to testify about the commonality of the brand and caliber of the bullets found in Huff’s home — Huff’s lawyer did object on the ground that a proper foundation had not been laid. At that point, the investigator testified about his training and experience as a law enforcement officer and showed that he had been exposed to different types of ammunition in “thousands” of cases. As a result, the record does not support Huff’s claim that his lawyer’s performance was deficient.
Finally, Huff claims that his lawyer should have objected to the way in which the trial court answered a question from the jury about its deliberations on felony murder. But even if the lawyer ought to have objected, Huff suffered no prejudice because Huff was convicted of malice murder, and the guilty verdicts on felony murder were vacated by operation of law. See footnote 1, supra. Huff has not shown that he was denied the effective assistance of counsel.
Judgment affirmed.
Isaac, Weston, and White were killed on February 29, 2012. A grand jury indicted Huff, Theron Deushon Green, and James Lanier on May 9, 2012, and they were charged with three counts of malice murder, six counts of felony murder, three counts of aggravated assault, and conspiracy to traffic in cocaine. In addition, Huff alone was charged with two counts of the unlawful possession of a firearm by a convicted felon (both of which were later dismissed by nolle prosequi) and a single count of marijuana possession. The charges against Lanier were dismissed before Huff’s trial. Huff was tried alone, beginning on June 23, 2014. The jury returned its verdict on June 30, finding Huff not guilty of the three aggravated assaults and the marijuana possession and guilty of the remaining charges. On July 7,2014, Huff was sentenced to consecutive terms of life imprisonment without parole for each of the three malice murders and imprisonment for a concurrent term of ten years for conspiracy to traffic in cocaine. The felony murders were vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993). Huff timely filed a motion for new trial on July 21, 2014, and he amended it on April 15, 2015, May 5, 2015, and September 3, 2015. The trial court denied his motion on October 15, 2015, and Huff timely filed a notice of appeal on October 22, 2015. His appeal was docketed in this Court for the April 2016 term and submitted for decision on the briefs.
See Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).
Like this case, Chulpayev was decided under the new Evidence Code. In that decision, we noted that OCGA § 24-8-824 is substantially identical to former OCGA § 24-3-50, which was a part of our old Evidence Code. Id. at 771 (2).
Acustodian of records for MetroPCS testified about the phone number, but he was unable to directly connect the number to Huff because the subscriber name on the account was “Money Earn.” In his statement to investigators, Huff admitted to his use of that phone number, but importantly, he denied that he was using the phone in question at the time of the murders. The testimony of the probation officer not only established that Huff used the number, but also that he had reported using the number prior to the murders.