Following a jury trial, Anastasia Jackson was found guilty of felony murder, armed robbery, two counts of aggravated assault with a deadly weapon, criminal attempt to commit armed robbery, conspiracy to commit armed robbery, and possession of a firearm during the commission of a felony. On appeal, she contends that the trial court failed to instruct the jury on the corroboration of accomplice witness testimony, that she was prohibited from exploring the bias of one of the State’s witnesses, that trial counsel rendered ineffective assistance, and that the evidence was insufficient to support the verdict.
Parking behind Sewell’s four-door truck at one of the gas pumps, Jackson got out of the car to get a small package from the trunk and got in the front passenger’s side of Sewell’s truck. Hardy got into the back seat of Sewell’s truck. As Jackson and Sewell were making the drug deal, a black sedan pulled in front of Sewell’s truck, and two gunmen jumped out of the car, advancing toward the truck. Both Jackson and Hardy exited the truck; Jackson jumped into the driver’s seat of her car, while Hardy was apprehended by one of the gunmen, held on the ground at gunpoint, and robbed. The other gunman went to the driver’s side of the truck, put a gun to Sewell’s head, and robbed Sewell. Once Hardy was let go, he heard a gunshot and saw one of the gunmen run toward Jackson’s car. The gunmen’s sedan was seen following Jackson’s car as both vehicles sped away from the gas station. Sewell later died of a gunshot wound.
The same night after the robbery and shooting, Hardy called Jackson to accuse her of setting up the robbery. During the phone call, Jackson responded to the allegations, stating, “I had to do what I had to do” and “I got to eat.” Jackson also assured Hardy that he would get his money back and later wired Hardy the money. Both Jackson and Hardy identified Kennedy as the shooter. The evidence indicates that both Jackson’s and Kennedy’s mobile phones were being used in the vicinity of the gas station around the time of the shooting and that Jackson called Kennedy immediately after the shooting. The evidence also shows that Jackson and Kennedy continued their business dealings with one another for some time after the shooting.
This evidence was sufficient to enable the jurors to find Jackson guilty of the crimes for which she was convicted beyond a reasonable doubt. Jackson v. Virginia,
The “plain error” test adopted by this Court in [Kelly] authorizes reversal of a conviction if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings.
(Citation omitted.) Smith v. State,
Corroborating evidence must show that Jackson was a party to the crime for Jackson to be convicted. See OCGA § 16-2-21; Walsh v. State,
3. Jackson next contends that the trial court erred in prohibiting her from fully exploring Hardy’s bias in favor of the State. The trial court allowed evidence of Hardy’s four prior felony convictions and two pending felony charges, but the court did not allow Jackson to cross-examine Hardy on details of the stiff recidivist penalties he possibly faced for the two pending cases.
“[T]he potential bias or partiality of a witness may always be explored on cross-examination.” Carswell v. State,
4. Jackson further contends that she was denied her right to effective counsel at trial. To prevail on this claim, Jackson must show both that her counsel’s performance was so deficient as to fall below an objective standard of reasonableness and that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been different. Strickland v. Washington,
(a) Jackson argues that trial counsel was ineffective in failing to request a jury charge on the corroboration requirement for accomplice testimony under former OCGA § 24-4-8. This argument fails, because the support of the circumstantial evidence discussed in Division 2, supra, as well as other witness testimony against Jackson presented at trial, made the instruction unnecessary. See Division 2, supra.
(b) Jackson next maintains that trial counsel was ineffective in failing to obtain a copy of the recidivist notice filed against Hardy. A recidivist notice indicates the prosecution’s intention to consider past convictions for enhanced sentencing purposes. OCGA § 17-16-4 (a) (5). The notice does not ensure that the State will indict the accused as a recidivist or that the accused will receive the enhanced recidivist sentence. See Kinsey v. State,
(c) Lastly, Jackson attests her trial counsel was ineffective for failing to object to misstatements made during the State’s closing argument. Jackson first contends that Hardy testified only that he saw the gunman run toward Jackson’s car after the robbery, but the State in closing argument claimed Hardy said one of the gunmen jumped into Jackson’s car following the robbery. Our review of the record reveals that Hardy testified that the gunman jumped into Jackson’s car, even though his averred basis for this claim was that the gunman ran toward the car. Jackson next contends that the State mistakenly stated that Jackson admitted her involvement in the robbery to Hardy, but our review of the record fails to uncover any such statement made by the State. In Jackson’s final volley against the State’s closing argument, she claims that the State impermissibly argued that when Hardy says “probably” he means “actually” or “definitely.” A prosecutor may draw reasonable inferences from the evidence during closing arguments. Scott v. State,
None of the allegedly improper statements enumerated by Jackson fall outside the permissible scope of the State’s conduct in closing argument. Thus, Jackson’s trial counsel’s performance was not deficient for failing to object to the alleged misstatements and, therefore, counsel was not ineffective.
Judgment affirmed.
Notes
On February 20,2009, Jackson was indictedfor malice murder, felony murder predicated on aggravated assault, two counts of aggravated assault with a deadly weapon, armed robbery, criminal attempt to commit armed robbery, conspiracy to commit armed robbery, and possession of a firearm during the commission of a felony. One count of aggravated assault related to the assault of Alton Sewell, and the remaining count related to the assault of Travaris Hardy. Following a jury trial ending on February 8, 2010, the jury acquitted Jackson of malice murder but found Jackson guilty of all other counts. The trial court sentenced Jackson to life imprisonment for felony murder, twenty consecutive years for armed robbery, ten consecutive years for conspiracy to commit armed robbery, and five consecutive years probation for possession of a firearm. The remaining counts were merged for purposes of sentencing. Jackson’s trial counsel filed a motion for new trial on February 19, 2010, and new appellate counsel filed an amended motion on September 1, 2011. The motion was heard on September
The provision in former OCGA § 24-4-8 has been carried forward into the new Evidence Code, renumbered based on the Federal Rules of Evidence, as OCGA § 24-14-8. Because the new Evidence Code was effective only as of January 1, 2013, however, it does not apply in this case, and, for that reason, we cite the old Code section.
The trial court ruled:
What you can argue to the jury is, he’s obviously got these two cases, and he is trying to curry favor with the government.... My ruling is, you are entitled to go into his motive for possibly fabricating testimony in favor of the government in order to curry favor for purposes of sentencing. But, beyond that, into what the potential sentences are or could he, I am not going to let do you [sic] that.