Rоdney Lane appeals his convictions for the malice murder of Donald Dye and other crimes. For the reasons that follow, we affirm.
Construed to support the verdicts, the evidence showed that Lane and Dye were next-door neighbors in an apartment complex. Around 4:40 a.m. on October 8,2010, Dye, Bonnie Green, and Johnny Williams were outside the door of Lane’s apartment; Lane had earlier called the police to complain about the noise of a larger group that had been outside his door. Lane emerged from the door оf his apartment with a pistol-grip shotgun and fired, striking Dye. Dye exclaimed, “Rodney shot me, Rodney shot me, Rodney shot me.” Another neighbor, Evelyn Grier, was awakened by the gunshot. She looked out the door of her apartment, saw Dye on the ground, and heard him say that his “neighbor next door” shot him. At 4:44 a.m., Grier called 911.
At the time of the shooting, David Neely, a visitor to the apartment complex who knew Lane, saw Lane emerge from his apartment with something in his hands; Neely heard a shot, saw Dye “hit the wall,” and heard Dye say that he had been shot.
Law enforcement officers arrived and, with his сonsent, searched Lane’s apartment for the shotgun and ammunition. While opening a drawer, the lid of a cigar box therein came open, revealing cocaine and packaging materials in the box; the cocaine had a solid material weight of over 24 grams. Natasha Dennis and her son were also inside the
At trial, Lane testified that: he came out of his apartment with a shotgun because he heard people suggesting that a gunshot should be fired into his home because he had earlier called the police to quiet those who were speaking outside his doоr; he asked Dye where they were; Dye made some joking response; Lane reached back toward the door; “the shotgun discharged” accidentally; he did not know that anyone was struck by the gunfire; he put the shotgun by the door; he went back inside to see if the gunshot had woken his child or her mother; and he lied to investigators, telling them that while he was inside his apartment, he heard a shotgun blast and heard someone running away.
1. The evidence authorized the jury to find Lane guilty beyond a reasonable doubt of the crimes of which he was convicted. Jackson v. Virginia,
2. On August 29, 2011, the trial court entered an order specially setting trial for December 5, 2011; the order specified that no continuances would be granted.
At the beginning of the proceedings on December 5,2011, Payton told the court that, since the December 1, 2011 hearing, Lane had made statements to her that she needed to investigate, and that she would be ineffеctive in her representation of Lane if she had to proceed without conducting that investigation, and again asked for a continuance. The court asked the State to review the history of the case, and the State said that Lane had made a demand for a speedy trial, that at a prior call of the case, the State announced that it was ready for trial, but after an ex parte request by Lane’s then-attorney, a continuance was granted on Lane’s motion, a psychological evaluation was requested and ordered, and the speedy trial request was withdrawn. The State also asserted that Lane’s prior lack of cooperation with Payton would not warrant a continuance as he had ample opportunity to discuss the case with her, and suggested that the court conduct an ex parte review of the information newly provided to Payton to determine if it warranted a continuance.
The court cleared the courtroom except for court personnel and the defense team, and Payton told the court that Lane had given her information that introduced the defense of accident, which had not previously been an issue in the case, and that a continuance was needed to secure an expert to determine if the shotgun could have misfired; she also stated that Lane heard voices and, althоugh
Lane asserts that it was error for the court to deny a continuance to allow Holmes to prepare for trial so that Lane could have retained counsel of his choosing. Pretermitting whether, at the time of trial, Lane communicated tо the court that Holmes was his choice of counsel, and not merely the choice of a family member, “[w]hile every defendant has the right to hire counsel, [a] defendant must use reasonable diligence in obtaining retained counsel. A defendant may not use a request for chаnge of counsel as a dilatory tactic.” Davis v. State,
On December 1, 2011, the trial court warned Lane that thе scheduled trial date of December 5, 2011, would not be changed, and reiterated that point when the State noted that the case had been “specially set six weeks ago,”
3. Lane contends that his trial counsel was ineffective in failing to adequately prepare for trial, and in failing to impeach State’s witness Williams with evidence that he had been previously convicted of multiple felonies. See former OCGA § 24-9-84.1 (a) (1). In order to prevail on a claim of ineffective assistance of counsel, Lane must show both that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense. Smith v. Francis,
We first note that during the hearing on his amended motion for new trial, Lane did not produce any testimony of his trial counsel, and that in such circumstance, “it is extremely difficult to overcome the strong
Similarly, as Lane failed to produce any evidence of the circumstances surrounding counsel’s failure to impeach Williams with his prior convictions, he has made it extremely difficult to overcome the presumption that counsel’s performance in this regard was reasonable. White, supra. But, even if Lane could show that counsel’s failure to impeach Williams was the result of deficient performance, he fails to meet the second prong of the required test. Given the evidence against Lane, which included thе testimony of other eyewitnesses to the shooting, the cross-examination of Williams that counsel did conduct,
Judgments affirmed.
Notes
The crimes occurred on October 8, 2010. On January 5, 2011, a Fulton County grand jury indicted Lane for malice murder, felony murder while in the commission of aggravated assault, felony murder while in the commission of possession of a firearm by a convicted felon, aggravated assault, possession of a firearm during the commission of a felony, possession of a firearm by a convicted felon, and possession of cocaine with intent to distribute; on July 22, 2011, he was re-indicted on the same charges. Lane was tried before a jury December 6-8, 2011 and found guilty of all charges. On December 13, 2011, Lane was sentenced to life in prison for malice murder and consecutive prison terms totaling 45 years (as a recidivist) on those counts that did not merge with malice murder and were not vacated by operation of law. See Malcolm v. State,
Lane’s brief in this Court was filed by his appellate attorney on March 3, 2016; on June 3,2016, this Court granted appellate counsel’s motion to withdraw from representing Lane. On June 6, 2016, Lane sent a pro se “Motion to Amend Motions that was Send to be Filed [sic].” To the extent that this document attemрts to introduce enumerations of error beyond those raised in Lane’s original brief in this Court, the document is untimely, and those additional enumerations of error will not be considered. See Potter v. State,
The trial court had previously granted Lane a continuance.
In fact, the order specially setting the case for trial was filed on August 29, 2011, which was fourteen weeks prior to the December 5, 2011 trial date.
Counsel cross-examined Williams regarding his addiction to crack cocaine for more than 30 years, his use of crack cocaine on the night of the shooting, the fact that he was sometimes paranoid when he smoked crack cocaine, and that he would steal in order to support his cocaine habit.