Jordan v. StateJordan v. State
Wayan Malik Jordan was tried by a Ben Hill County jury and convicted of murder and other crimes in connection with the fatal shooting of Craigory Burch. Jordan appeals, contending that the State failed to present evidence legally sufficient to sustain his convictions, that he was denied the effective
1.
Viewed in the light most favorable to the verdict, the evidence shows that on January 20, 2016, Dabrentise Overstreet contacted Jordan, Nathaniel Baker, and others affiliated with the “G-Shine” gang so that they could commit a robbery. Their target was Burch, who recently had won approximately $430,000 in the Georgia Lottery and had purchased a home in Fitzgerald with some of the proceeds. Jordan was initially reluctant to participate, but he ultimately agreed to do so in order to redeem himself after a prior incident in which he had stolen drugs from the gang.
The gang members went to Burch’s home in two cars (driven by Overstreet’s and Baker’s girlfriends), stopping along the way so that Jordan could acquire a firearm. Baker kicked in the front door of the home, and he, Overstreet, and Jordan entered with their guns drawn.2 Burch was in the living room of his home with his girlfriend — Jasmine Hendricks — and their two young children,3 and Overstreet and Jordan held them at gunpoint and demanded money while Baker went to the back of the house to look for valuables. Overstreet shot Burch several times in the leg while Burch was holding his two-year-old son on the sofa,4 and Jordan went through Hendricks’s purse, which also was on the sofa. The purse contained Hendricks’s cell phone and wallet in addition to two cell phones that belonged to Burch. Shortly thereafter, the men left the house.
After Jordan unsuccessfully attempted to start Burch’s truck in the driveway, Overstreet returned to the front of the home and shot Burch several times in the chest while Burch was seated next to Hendricks. The gang members (including Jordan) fled the scene together, and Jordan laughed about the shooting as the men divided the property that they had taken. In addition to the wallet and phones that Jordan took from Hendricks’s purse, the stolen property included Burch’s wallet. Jordan was arrested, and — while he was being booked — he spontaneously said “f**k the man I killed [and] f**k this place.”
Jordan claims that the evidence is not legally sufficient to sustain his conviction for murder because the evidence failed to show that he shared Overstreet’s intent to kill. But “criminal intent may be inferred from presence, companionship, and conduct before, during and after the offense.” Hardy v. State, 306 Ga. 654, 658 (1) (b) (832 SE2d 770) (2019) (citation and punctuation omitted). Here, Jordan agreed to take part in the home invasion as a member of the gang, he
Jordan also contends that the evidence is not legally sufficient to sustain his conviction for the armed robbery of Burch because the evidence showed that items were taken only from Hendricks. This claim, however, is belied by the record. Evidence was presented that Jordan took Burch’s cell phones from Burch’s immediate presence, as the phones were taken from a purse that was on the sofa on which Burch was seated while he was held at gunpoint. In addition, although it was not clear how the gang members obtained Burch’s wallet, the jury could infer that the wallet was taken from Burch’s home during the robbery. And even if the wallet was taken by Baker from the back of the house while Jordan and Overstreet were robbing Burch in the living room, the “immediate presence” required for a robbery is generally found where the item is taken outside of the physical presence of the victim “if what was taken was under [the victim’s] control or his responsibility and if he was not too far distant.” Benton v. State, 305 Ga. 242, 244-245 (1) (b) (824 SE2d 322) (2019) (citation and punctuation omitted). As a result, a rational jury could find that Jordan was guilty of the armed robbery of Burch.
Jordan does not dispute that the evidence is legally sufficient to sustain his other convictions, but consistent with our usual practice in murder cases, we nevertheless have reviewed the evidence and considered its sufficiency. Viewed in the light most favorable to the verdict, we conclude that the evidence adduced at trial is sufficient to authorize a rational trier of fact to find Jordan guilty of each 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).5
2.
Jordan claims that the trial court erred when it admitted extrinsic evidence of gang activity. According to Jordan, there was little probative value to evidence about the gang because his lawyer acknowledged in his opening statement that Jordan was a gang member. As a result, Jordan argues,
Jordan also asserts that his rights under the Confrontation Clause of the Sixth Amendment of the United States Constitution were violated by the admission of Overstreet’s conviction for criminal gang activity related to an incident in Fitzgerald in 2015.
3.
Finally, Jordan claims that he was denied the effective assistance of counsel during his trial. To prevail on a claim of ineffective assistance, Jordan must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. See 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, Jordan 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. See 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, Jordan 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). This burden is a heavy one, see Kimmelman, 477 U. S. at 382 (II) (C), and Jordan has failed to carry it.
First, Jordan asserts that his trial lawyer was ineffective because he should have made a continuing objection to hearsay testimony presented by Overstreet’s and Baker’s girlfriends (who had participated in the crimes by driving the gang members to and from Burch’s home). One of the women testified that Overstreet told Baker a few weeks before Burch’s killing that they needed to “hit” Burch because he had been “flexing“; she overheard Overstreet tell Baker just before the robbery — while the gang members were preparing to go to Burch’s house — that his firearm was a “Tec“;7 she heard several members of the gang (including Jordan) joking about the shooting as they divided the proceeds of the robbery immediately afterward; and Overstreet told her the next day — while the gang members were hiding out in a Tifton motel room — that he had killed Burch. The other woman testified that — while the gang members were dividing the proceeds of the robbery — several of them were “picking at” Jordan because he had been unable to start Burch’s truck, Baker said he was the one who had kicked in Burch’s front door, and Overstreet claimed to have killed Burch. The record shows that Jordan’s trial lawyer did offer a hearsay objection to some of the women’s hearsay testimony at trial, and to the extent that he failed to object, it would have been reasonable for him to conclude that the testimony was admissible under the co-conspirator exception and, therefore, unobjectionable on hearsay grounds. See
Next, Jordan says that his trial lawyer should have requested a jury charge on the requirement for corroboration of accomplice testimony because the State relied heavily on the testimony of Overstreet’s and Baker’s girlfriends. See
Third, Jordan contends that his trial lawyer should have filed a general demurrer to the count of the indictment that charged him with home invasion because the indictment referred to Burch’s “dwelling house” without specifying that Burch had “authority to be present” there. See
Jordan says his trial lawyer also should have moved to quash one of the two counts charging him with criminal gang activity, citing Anthony v. State, 303 Ga. 399, 404 (2) (b) (811 SE2d 399) (2018). According to Jordan, such a motion would have been successful because the two counts involved the same acts against the same victim.8 But Jordan’s trial lawyer would not have been able to rely on Anthony because it was decided after his trial and sentencing. Moreover, Anthony specifically declined to consider whether the Street Gang Act permits multiple convictions for criminal gang activity “when a person associated with a criminal street gang participates in criminal gang activity by committing multiple [and distinct] predicate crimes, even when those predicate crimes are committed in one place, at one time, and against one victim.” Id. at 404 (2) (b) n.8. Here, the counts alleging criminal gang activity were related to separate offenses — home invasion and armed robbery — and Jordan’s lawyer was not ineffective because he failed to pursue a novel theory of defense that was specifically not considered in a case that had not been decided at the time of his trial and sentencing. See Esprit v. State, 305 Ga. 429, 438 (2) (c) (826 SE2d 7) (2019).
Judgment affirmed. All the Justices concur.
DECIDED NOVEMBER 18, 2019.
Murder. Ben Hill Superior Court. Before Judge Hughes.
Matthew K. Winchester, for appellant.
Bradford L. Rigby, District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Vanessa T. Sassano, Assistant Attorney General, for appellee.