Hurt v. StateHurt v. State
Appellant Kortez Hurt was convicted of felony murder and associated crimes in connection with the shooting death of Michael Ray. Hurt now appeals his convictions on the grounds that the trial court allowed the State to elicit inadmissible hearsay testimony, that the trial court abused its discretion when it refused to ask three of Hurt‘s proposed voir dire questions, and that trial counsel was ineffective. Though we find no merit in Hurt‘s enumerations, we do find error in certain aspects of Hurt‘s sentences, and we must, therefore, vacate and remand for resentencing.1
Tiequan Woods, the owner of the drug house and a friend of the victim, reported to investigators that Hurt called him on the night of the murder to ask if he could purchase drugs at the location and that he, Woods, was unable to contact the victim later that night. Woods also reported to investigators that Hurt had confessed to Montez Freeland to committing the murder. In the presence of investigators, Woods telephoned Freeland, and Freeland again relayed the substance of Hurt‘s confession to Woods; the telephone call was recorded by investigators. According to Freeland, Hurt admitted going to Woods’ drug house and shooting the victim in the head “with a 40” because the victim “bucked” when Hurt produced a pistol while attempting to rob him. Investigators later conducted recorded interviews with Freeland on two different occasions — once in July 2009 and once in September 2009 — and, in both interviews, Freeland again recounted the details of Hurt‘s confession. In his September 2009 interview, Freeland reported that Hurt had admitted shooting the victim once when the victim reached for Hurt‘s pistol; detailed how Hurt came to be in possession of the .40 caliber pistol; discussed why Hurt did not dispose of the pistol after the murder; and explained that Hurt robbed the victim because he owed money to others.
A search of Hurt‘s residence yielded cocaine, marijuana, and a .40 caliber pistol later determined to be the murder weapon. In his interview with investigators, Hurt admitted contacting Woods to purchase drugs on the night of the murder, being at the drug house
Freeland, too, appeared at trial as a witness for the State, but he was insistent that he did not want to testify, and he largely maintained that he did not know anything or that he could not remember anything.2 The State subsequently elicited testimony from Woods and Investigator Nicole Esquilin regarding Hurt‘s confession to Freeland; the State also adduced, without objection, the recordings of Freeland‘s phone call with Woods and Freeland‘s recorded interviews with investigators.
1. Though Hurt has not enumerated the general grounds, we have concluded that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that he was guilty of the crimes of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2. Hurt first argues that the trial court allowed inadmissible testimony from Woods and Investigator Esquilin concerning Freeland‘s statement to Woods about Hurt‘s confession; the testimony was admitted as evidence of a prior inconsistent statement made by Freeland. According to Hurt, however, the State failed to show that Freeland‘s trial testimony was inconsistent with his prior statement to Woods, and the State failed to lay a proper foundation for Woods’ testimony regarding his conversation with Freeland. He also argues that Investigator Esquilin‘s testimony included an additional layer of inadmissible hearsay not addressed by the State.
As an initial matter, none of these contentions are preserved for our review. Trial counsel objected to the testimony at issue on the basis that it was “hearsay,” and then, in response to the State‘s contention that the testimony was admissible as a prior inconsistent statement, argued only that “[Freeland] said he didn‘t remember anything.” However, “[i]n order to raise on appeal an impropriety
Nevertheless, even if these issues were preserved for our review, the substance of the testimony here is merely cumulative of other properly admitted evidence. As discussed above, the trial court admitted, without objection, Freeland‘s recorded telephone conversation with Woods and Freeland‘s recorded interviews with police, all of which discuss Hurt‘s confession to Freeland.3 Accordingly, it is highly probable that any error here did not contribute to the verdict and, thus, any error was harmless. See Bulloch v. State, 293 Ga. 179 (3) (a) (744 SE2d 763) (2013) (any error in admission of hearsay testimony was harmless, where testimony was cumulative of other properly admitted evidence).
3. Hurt also alleges that his trial counsel was ineffective for failing to object to the admission of Freeland‘s various recorded statements and to inadmissible hearsay testimony from Investigator Esquilin.
To establish ineffective assistance of counsel, a defendant must show that (1) his trial counsel‘s performance was professionally deficient and (2) but for such deficient performance there is a reasonable probability that the result of the trial would have been different. Strickland v. Washington, 466 U. S. 668, 695 (104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355 (3) (689 SE2d 280) (2010). To prove deficient performance, one must show that his attorney “performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing
[T]o show that he was prejudiced by the performance of his lawyer, [Hurt] must prove “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.”
Arnold v. State, 292 Ga. 268, 269 (2) (737 SE2d 98) (2013) (quoting Strickland, 466 U. S. at 694 (III)). With these well-established principles we now address each of Hurt‘s contentions.
(a) The trial court admitted, without objection, Freeland‘s September 2009 video-recorded interview with investigators. Hurt argues, however, that the State failed to lay the proper foundation for the admission of the interview as a prior inconsistent statement and that trial counsel was ineffective for failing to object on that ground. The State contends, as it did below, that the interview was properly admitted as a prior inconsistent statement.
Freeland testified that he either did not know or did not remember the details of Hurt‘s confession. Under the law in effect at the time of Hurt‘s trial, the State was required to meet three requirements before impeaching Freeland with the September 2009 interview. See former
Here, after an uncooperative Freeland gave testimony inconsistent with his September 2009 interview with investigators, the State asked him whether he remembered the interview and asked him specific questions regarding the content of that interview; although Freeland acknowledged meeting with investigators, he denied remembering any specific statements he made during that interview. The prosecutor questioned Freeland in detail “about the time, place, person, and circumstances attending the former statement, including the specific inconsistency at issue,” laying an “ample foundation” for the introduction of the inconsistent statement, Cade v. State, 289 Ga. 805, 810 (6) (716 SE2d 196) (2011), and satisfying the purpose of the foundation requirement. Duckworth, 268 Ga. at 567-568. The recorded interview was later admitted without objection and played for the jury. Hurt now contends that the State was required to show Freeland a previously prepared transcript of the recorded interview as a predicate to admitting the interview and that trial counsel was ineffective in neglecting to object when the State failed to comply with this requirement.
This Court has previously held that, “[a]lthough [former]
(b) Also admitted without objection were Freeland‘s audio-recorded telephone conversation with Woods and Freeland‘s July 2009 audio-recorded interview with investigators. At the motion for new trial hearing, trial counsel testified that he did not remember why he did not object and that he had no strategic reason for not objecting. However,
[a]s we recently explained, we are not limited in our assessment of the objective reasonableness of lawyer performance to the subjective reasons offered by trial counsel for his conduct. If a reasonable lawyer might have done what the actual lawyer did — whether for the same reasons given by the actual lawyer or different reasons entirely — the actual lawyer cannot be said to have performed in an objectively unreasonable way.
Shaw v. State, 292 Ga. 871, 875 (3) (a), n. 7 (742 SE2d 707) (2013).
The record shows that trial counsel‘s theory was that Freeland was the actual killer who was trying to blame Hurt for the murder, and these recordings lend support to that theory. In the recordings, Freeland relays exact and intimate details regarding the murder, including the time of the murder and how Hurt arrived at the drug house; acknowledges being involved in the drug trade and having served prison time; exclaims that, as a convicted felon, he might get the “electric chair” were he involved in the murder; suggests to police that they “catch” Hurt with the murder weapon and obtain a warrant for his residence; and calls Hurt “slime.” While it is unclear whether the State laid a sufficient foundation for the admission of these recordings, and while these recordings certainly inculpate Hurt, the recordings also provide not-insubstantial support for the theory that all the details concerning the murder came exclusively from Freeland
(c) The jury also heard without objection a recorded encounter between Freeland and investigators outside of Freeland‘s residence in July 2009. In this recording, investigators attempt to question Freeland about the murder, and it is apparent that Freeland is reluctant to speak with them; Freeland agrees to be interviewed at a later time at the precinct. Again, though trial counsel could not articulate why he did not object to the admission of this recording, the transcript shows that trial counsel explicitly utilized this recording to point out that Freeland was hesitant to speak with the investigators because he was selling drugs from his residence and that he was hesitant to speak out in the open for fear that others would learn that he was blaming Hurt for the murder. Though it is not clear that this recording was admissible, the recording again supported trial counsel‘s theory of the case, and trial counsel‘s failure to object here was not objectively unreasonable. Moreover, nothing in this recording inculpates Hurt, and it is clear that the recording had no bearing on the outcome of trial; accordingly, even if trial counsel should have objected, Hurt suffered no prejudice.
(d) Finally, Hurt asserts that trial counsel failed to object when Investigator Esquilin testified that Freeland said that Hurt also confessed to an individual named “Mario.” As Hurt acknowledges, however, this fact was referenced during Freeland‘s September 2009 interview, which, as discussed above, was properly admitted and played for the jury. Moreover, in light of the other evidence admitted at trial, we cannot say this testimony in reasonable probability changed the outcome of Hurt‘s trial; accordingly, Hurt suffered no prejudice from trial counsel‘s failure to object to this testimony.
4. Hurt also contends that the trial court abused its discretion when it disallowed three of Hurt‘s proposed voir dire questions.
According to the record, however, trial counsel did not object when the trial court announced that it would disallow the requested questions; accordingly, this issue is not preserved for appellate review. See Brockman v. State, 292 Ga. 707, 720 (8) (739 SE2d 332) (2013); State v. Graham, 246 Ga. 341, 342 (271 SE2d 627) (1980). Even if this issue were properly preserved, the claim is without merit. “The single purpose for voir dire is the ascertainment of the impartiality of jurors, [and] their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination.” Whitlock v. State, 230 Ga. 700, 705 (5) (198 SE2d 865) (1973). “[T]he scope of voir dire and the propriety of particular questions are best left to the sound discretion of the trial court[.]” Hammond v. State, 273 Ga. 442, 446 (2) (c) (542 SE2d 498) (2001). Here, the substance of Hurt‘s questions was covered when the trial court asked the three statutory questions set forth in
5. While the evidence was sufficient to sustain Hurt‘s convictions and we find no merit to Hurt‘s enumerations of error, we do find error in Hurt‘s sentences. Hurt was found guilty of, inter alia, felony murder predicated on aggravated assault, felony murder predicated on possession of a firearm by a convicted felon, and possession of a firearm by a convicted felon. The trial court sentenced Hurt to life imprisonment for felony murder predicated on aggravated assault and purportedly merged the remaining counts listed above. However, the second count of felony murder — felony murder predicated on possession of a firearm by a convicted felon — did not merge but was vacated by operation of law. See Leeks v. State, 296 Ga. 515, 524 (7) (769 SE2d 296) (2015) (second felony murder count vacated by operation of law because felony murder convictions involved the same victim). Because that second count of felony murder stood vacated by operation of law, there was nothing into which the felon-in-possession count could have merged. See Malcolm v. State, 263 Ga. 369, 373 (5) (434 SE2d 479) (1993). Therefore, the trial court is required to vacate that portion of its sentencing order purporting to merge the felon-in-possession count and impose a proper sentence for that count.