LEWIS v. THE STATE
S21A0250
In the Supreme Court of Georgia
Decided: June 1, 2021
Appellant Jeffrey Lewis was convicted of felony murder and other crimes in connection with the fatal shooting of Delorean Patterson, who was killed during an armed robbery that Lewis, Patterson, and others carried out at a “trap house” in Atlanta in 2011.1 On appeal, Lewis argues that the trial court erred by admitting into evidence a confession he gave to police while in custody because it was induced by a “hope of benefit“; by admitting that same confession because it was obtained in violation of his right to counsel; by denying Lewis‘s claim that his trial counsel was constitutionally ineffective for failing to object when the trial court refused to expound on a jury instruction; and by giving an incorrect jury instruction on the statutory accomplice-corroboration requirement. Identifying no reversible error, we affirm Lewis‘s convictions.
1. Background
(a) Gault Street Crimes
The evidence presented at Lewis‘s trial showed that on the evening of March 25, 2011, Lewis, a convicted felon, met with at least four or five men, including Patterson and Darrius Richardson, to rob the occupants of a house located at 1316 Gault Street in Fulton County, where they expected to find large amounts of drugs and cash. The group took two cars to the house, and several people, including Lewis and Patterson, rode in a burgundy Nissan Altima that Lewis had rented. Danielle Parks, who had dated Patterson for several months, testified that on that evening, she drove Patterson to the Doo Drop Inn to meet with Lewis. She said that while Patterson was in her car, he was on the phone with Lewis and that when she dropped Patterson off, he got into a burgundy Nissan Altima driven by Lewis with several male passengers inside.
According to Richardson, when the group arrived at the Gault Street house, Richardson and Patterson entered the house, carrying firearms and wearing bulletproof vests. The rest of the group, including Lewis, remained outside. Richardson and Patterson
While Patterson and Richardson were inside the house, gunfire erupted outside. Richardson dropped to the floor, but Patterson ran outside. Eventually, Richardson left the house and saw Patterson lying unconscious and unresponsive in the driveway. Richardson testified that he picked up Patterson, who was still wearing a bulletproof vest, and placed him in the Nissan Altima Lewis had rented.
Early on the morning of March 26, 2011, police responded to a call that a man‘s body was lying in front of a school. Detective Scott Demeester arrived at the scene and saw Patterson lying on his stomach with a trail of blood leading away from his body. Detective Demeester later testified that Patterson seemed to have been shot at a different location because officers did not find any shell casings near the body. A Fulton County medical examiner testified that Patterson died of gunshot wounds to the torso and that the cause of death was homicide. And a GBI firearms expert testified that the bullet fragments recovered during Patterson‘s autopsy were likely fired from an SKS or AK-47-style rifle.
After a preliminary investigation, Detective Demeester spoke with Montavious Rosson, one of the men who stood outside the Gault Street house during the armed robbery. Based on that conversation, Detective Demeester located the Nissan Altima and discovered that Lewis had rented it using a fake driver‘s license. Lewis‘s fingerprints were located on the interior and exterior of the vehicle.
Police arrested Lewis on March 30, 2011, on an unrelated warrant. Detective Demeester—who suspected Lewis was involved in the Gault Street crimes based on his conversations with Rosson and Parks, and on evidence related to the Nissan Altima—asked Lewis to discuss the case with him. Lewis declined to do so.
(b) Lewis‘s Three-Way Phone Call From Jail2
On April 24, 2011, five days after an arrest warrant was issued accusing Lewis of felony murder for the death of Patterson, Lewis—who was still in custody for an unrelated charge—called his sister from the Fulton County jail. During that phone call, Lewis‘s sister called Detective Demeester at Lewis‘s direction so that the three of them could discuss the Gault Street case. At the outset of the call, Detective Demeester acknowledged that Lewis was represented by counsel, and Lewis gave Detective Demeester the name of his two attorneys. Lewis then said that he had been wanting to speak with Detective Demeester at the jail; asked if Detective Demeester could get him out of jail that night; offered to take him to the scene of the armed robbery and shooting; and provided unsolicited information about the case. Detective Demeester informed Lewis that before the phone call, he had spoken with an attorney who Lewis previously claimed was representing him. However, that attorney was not one of the two attorneys Lewis mentioned at the outset of the call. Detective Demeester said that the attorney he spoke with—who apparently was not currently representing Lewis—told Detective Demeester that if he were Lewis‘s attorney, Lewis was “not gonna talk to you.” After he was informed of this exchange, Lewis nonetheless began pleading with Detective Demeester to speak with him, saying “I really need you to come down here to talk to me . . . . I‘m innocent . . . I didn‘t do that. I‘ll let you know everything . . . . I can lead you to everything. That‘s my word man . . . . I can lead you to the scene. Do you know where the scene at?” He continued:
I‘ll lead you—y‘all can come get me tomorrow and I can, I can, I can try and—I can make a phone call on whoever‘s cell phone and find out exactly where is the address.
And find out everything . . . . When we get to the scene I can show you exactly where everybody was standing and everything, Mr. Demeester.
In response, Detective Demeester asked Lewis specific questions about the Gault Street crimes, but never advised Lewis of his rights under Miranda.3 Lewis then had the following exchange with Detective Demeester:
LEWIS: If I reach out to my attorney tomorrow and tell them that I want to talk to you, and tell them to come up with some kind of deal, can that work Detective Demeester? Please? . . . Mr. Demeester, here‘s what I‘m telling you, man. Here‘s my word, man . . . when I come down there to homicide, man, I‘ll take a lie detector or whatever, Mr. Demeester. I can help y‘all with whatever y‘all want. I can take y‘all to everything . . . . [w]hatever y‘all ask for, man, that‘s what I‘m going to do. That‘s my word, man.
. . .
DETECTIVE: Would you want to talk to me without your attorney?
LEWIS: I would talk to you without my attorney, if that‘s what the attorney said, yes. That‘s my word, man. I just want you to know that I didn‘t kill him period.
. . .
DETECTIVE: What I‘m going to do is I‘m going to call the district attorney that is handling the case right now, I‘m going let him know that you are reaching out to me and that you want to talk . . . but we‘re going to have to communicate with your attorney, man, I mean, you know, and I can almost guarantee you they‘re going to tell you not to talk to me. But, you know, that‘s just the way it is. What you have to understand is that you‘re also a grown man and you can choose, you know, if you feel that the attorney is not acting in your best interest, then you don‘t have to . . . you can not listen to them, you know what I mean?
(Emphasis supplied.)
Detective Demeester also told Lewis that had Lewis cooperated when he was first arrested, he “wouldn‘t be in this situation right now.” Lewis explained that his initial hesitancy to cooperate stemmed from his recollection of his attorney‘s advice in a different criminal proceeding, in which Lewis‘s lawyer told him to never speak with law enforcement without counsel present, but that Lewis was now “willing to do everything, Mr. Demeester. That‘s my word. I‘m talking about everything.” He then repeated his offer to bring Detective Demeester to the Gault Street house and show him where everyone was standing during the armed robbery. Detective Demeester again told Lewis that he would inform the district attorney of Lewis‘s interest in cooperating and “go from there.” The call ended after Detective Demeester told Lewis that he would be in contact “real soon,” and Lewis asked Detective Demeester to stay in contact with Lewis‘s sister, whom Detective Demeester promised to call first thing the next morning.
(c) Lewis‘s Custodial Interview
The next day, April 25, 2011, Detective Demeester brought Lewis to the Atlanta Police Department headquarters to conduct a video-recorded interview. Before Lewis gave his statement, he acknowledged that he had contacted and asked to speak with Detective Demeester via a three-way phone call the day before. At the outset of the interview, Detective Demeester confirmed Lewis‘s education level and that Lewis could read and write English. After Detective Demeester reviewed it with Lewis, Lewis signed a written waiver form that listed his rights under Miranda and memorialized that he waived his right to counsel. The following exchange then occurred:
LEWIS: So, the DA never said they was going to try to help me out.
DETECTIVE: I‘m not saying that, no.
LEWIS: Okay, they didn‘t?
DETECTIVE: I‘m sorry?
LEWIS: They didn‘t at all like try—
DETECTIVE: He—he stated that if you wanted to come down and make a statement . . . that you can do that.
LEWIS: That‘s it?
DETECTIVE: That‘s what he said, all right? You want—you want me to call your sister?
With Lewis‘s sister on the phone, the conversation continued:
LEWIS: He was saying like the DA didn‘t say anything about like trying to help me out or whatever, but I know it‘s—it‘s the right thing to do it anyway . . . even though I‘m down here talking to him, it‘s not—it‘s not like I‘m—I‘m just gone come home because I‘m talking to them.
LEWIS‘S SISTER: So, it ain‘t [inaudible] help in no type of way?
LEWIS: Not really . . .
DETECTIVE: No, I‘m not saying that it can‘t help in any way. Now, he ain‘t going to get out of jail tonight. I already explained that to him.
. . .
LEWIS‘S SISTER: So, they ain‘t trying to give you help in no type of way?
. . .
DETECTIVE: That‘s—it—it—the way I explained to him and what I explained to you is that he has a right to come down and talk to me and provide me with a statement and that he didn‘t take that opportunity the first time. So, he reached out to me and this is his second opportunity. . . . So, I‘m giving him a second opportunity to come down and tell me what he knows. All right? . . . So, this is his opportunity and if—and if he is honest and truthful and telling me everything that happened then his attorney could—could hopefully use that to assist him in the future.
LEWIS‘S SISTER: Okay. . . . So, they ain‘t gone take that murder charger [sic] off you? What you didn‘t do.
DETECTIVE: Not right now, no. Because like I said I‘ve only got one side of the story. I don‘t have [Lewis‘s] side of the story.
After ending the call with Lewis‘s sister, Detective Demeester began questioning Lewis about the Gault Street armed robbery and Patterson‘s shooting death. Lewis then admitted to driving Patterson and others to the Gault Street house in a Nissan Altima on March 25. He explained that Richardson—whom Lewis also identified in a photo lineup—and Patterson went into the Gault Street house wearing bulletproof vests; that the rest of the group remained outside; and that after the shooting began, Lewis fired a .45-caliber gun at a vehicle parked at the end of the street until the weapon was unloaded.4 Lewis claimed that after Patterson was shot, Lewis and others in his group drove Patterson‘s body to an area near a school, removed Patterson‘s bulletproof vest, and placed his body on the sidewalk. Lewis told Detective Demeester that he disposed of the weapons and the bulletproof vest in the woods. Lewis also drove with Detective Demeester to the Gault Street house and pointed it out as the house where Patterson was shot.
Based on all of this information, Detective Demeester obtained and executed a search warrant on the Gault Street house. There, he identified approximately 52 bullet holes in the home‘s exterior and recovered two bullets from inside the house, including a .45 metal-jacketed bullet.
On December 30, 2011, Lewis was indicted for felony murder, criminal attempt to commit armed robbery, aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon based on his involvement in the Gault Street armed robbery and the shooting death of Patterson.
(d) Motion to Suppress
Lewis filed a motion to suppress the April 24, 2011 statements he made to Detective Demeester during the three-way phone call from jail and the confession he gave during his April 25, 2011 custodial interview. He also requested a hearing under Jackson v. Denno, 378 U.S. 368 (84 SCt 1774, 12 LE2d 908) (1964), to determine whether the confession was given without the “slightest hope of benefit or remotest fear of injury.”
(e) Trial
Lewis did not testify at trial, but the State played for the jury the video of Lewis‘s April 25 custodial interview, in which he admitted his involvement in the Gault Street crimes. In addition, the State also introduced cell-site records showing that Lewis‘s phone was near the Gault Street house on the night of the armed robbery and shooting, as well as a text message sent from Lewis‘s phone on March 24, 2011—one day before the shooting—saying, “Yeah, I still got the vest.” The jury found Lewis guilty on all counts.
2.
Lewis contends that his April 25, 2011 custodial interview—in which he confessed to participating in the Gault Street armed robbery—was inadmissible under Georgia statutory law and the
(a) Hope of Benefit Claim
Lewis contends that the confession he made during his April 25 custodial interview was induced by “the slightest hope of benefit” and was therefore inadmissible under
Under
Here, even assuming—without deciding—that Detective Demeester‘s statements to Lewis on April 24 and 25 constituted an impermissible hope of benefit, Lewis has failed to demonstrate that the statements induced his April 25 confession. Indeed, the record shows that Lewis confessed despite knowing that no benefit would ensue: on April 25, Lewis told his sister that “the DA didn‘t say anything about like trying to help me out or whatever, but I know it‘s—it‘s the right thing to do it anyway.” Where, as here, the record shows that Lewis elected to speak with law enforcement officers because “it‘s the right thing to do,” even after he acknowledged that law enforcement officers had not said they would “help [him] out,” we cannot say that his confession was induced by a hope of benefit. See Kessler, __ Ga. at __ (confession was not induced by improper hope of benefit where the defendant testified that he confessed because of religious reasons). Therefore, the trial court did not err under
(b) Right to Counsel Claim
Lewis argues that the confession he gave during the April 25 custodial interview was obtained in violation of his right to counsel under the
April 24 three-way phone call from jail. He then contends that he did not later waive that invocation and that Detective Demeester did not honor Lewis‘s right to counsel on April 25. As a result, he claims that even if he initiated an interview with Detective Demeester on the day after the three-way phone call, any statements Lewis made during the custodial interview were the product of a past violation of his previously invoked right to counsel and were therefore inadmissible. See Mack v. State, 296 Ga. 239, 246, 248 (765 SE2d 896) (2014). For the reasons explained below, we conclude that Lewis has not shown that he clearly and unambiguously invoked his
If a suspect asks for a lawyer during a custodial interrogation, law enforcement officers may not continue questioning the suspect “until an attorney has been made available or until the suspect reinitiates the conversation.” Driver v. State, 307 Ga. 644, 646 (837 SE2d 802) (2020) (citation and punctuation omitted). See also Edwards v. Arizona, 451 U.S. 477, 484-486 (101 SCt 1880, 68 LE2d 378) (1981). “A request for a lawyer must be clear and unambiguous; the mere mention of the word ‘attorney’ or ‘lawyer[,]’ without more, does not automatically invoke the right to counsel.” Taylor v. State, 304 Ga. 41, 48 (816 SE2d 17) (2018) (citation and punctuation omitted). This standard requires a suspect to “articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Dozier v. State, 306 Ga. 29, 35 (829 SE2d 131) (2019) (citation and punctuation omitted). As a result, “ambiguous or equivocal” statements that a reasonable officer in light of the circumstances would have understood “only that the suspect might be invoking the right to counsel” are not enough, Taylor, 304 Ga. at 48 (emphasis in original), and “even a comment that a suspect would like counsel to be present in the future is not a clear and unambiguous request for counsel,” Dozier, 306 Ga. at 35 (citation and punctuation omitted). Moreover, a law enforcement officer who conducts a custodial interrogation need not clarify “an equivocal reference to counsel.” Golden v. State, __ Ga. ___ (852 SE2d 524, 531) (2020).
Pretermitting whether Lewis preserved his
But neither statement constituted a “clear and unambiguous” invocation of Lewis‘s
Especially “when viewed in context,” Brooks v. State, 271 Ga. 698, 699 (523 SE2d 866) (1999), we cannot say that a reasonable officer under the circumstances would have interpreted Lewis‘s statements to be “clear and unambiguous” expressions of a desire to have counsel present during his April 24 phone call from jail, Taylor, 304 Ga. at 48. That context includes Lewis initiating the phone call with his sister and Detective Demeester; Lewis‘s persistence in offering to speak with Detective Demeester and to assist in the investigation; and Lewis‘s failure to articulate a clear desire for counsel to be present during the call, even after Detective Demeester acknowledged that Lewis was represented by counsel and explained that he had spoken with a separate attorney who suggested that he would advise Lewis against speaking to Detective Demeester if Lewis were, in fact, his client.
Because Lewis did not clearly and unambiguously invoke his
3. Lewis contends that his trial counsel rendered ineffective assistance by failing to object when the trial court declined the jury‘s request to explain a jury instruction the court had already provided. We conclude that Lewis‘s claim fails because he has failed to show that his counsel was constitutionally deficient.
During the jury charge, the trial court instructed the jurors that, among other things, they would need to determine whether the statements made during Lewis‘s April 25 custodial interview were voluntary:
To be voluntary, a statement must be free and willingly given without coercion, duress, threats, use of violence, fear of injury, or any suggestions or promises of leniency or reward. A statement induced by the slightest hope of benefit or the remotest fear of injury is not voluntary. To be voluntary, a statement must be the product of a
free will and not under compulsion or any necessity imposed by others.
While the jury was deliberating, the jurors sent the following question to the trial court: “[W]e cannot come to an agreement on whether or not the defendant‘s statement was given voluntarily or involuntarily. Is it possible for us to receive a concise explanation of the two, particularly suggestion or promise of leniency or reward?” The court told Lewis‘s trial counsel that it would tell the jurors that it had already instructed them on all of the applicable law, and that it could do so either in writing or by bringing the jurors out and telling them in person. Lewis‘s counsel responded that he did not believe the court could “do anything more than tell them what you‘ve already told them.” The court then responded to the jurors in writing, “You have been given all the applicable law.”
To prevail on a claim of ineffective assistance of counsel, a defendant generally must show that counsel‘s performance was deficient and that the deficient performance resulted in prejudice to the defendant. See Strickland v. Washington, 466 U.S. 668, 687-695 (104 SCt 2052, 80 LE2d 674) (1984). To satisfy the deficiency prong, a defendant must demonstrate that his attorney “performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344 (745 SE2d 637) (2013). This requires a defendant to overcome the “strong presumption” that trial counsel‘s performance was adequate. See Strickland, 466 U.S. at 689; Marshall v. State, 297 Ga. 445, 448 (774 SE2d 675) (2015). To satisfy the prejudice prong, a defendant must establish a reasonable probability that, in the absence of counsel‘s deficient performance, the result of the trial would have been different. Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. For the reasons explained below, because Lewis has failed to show deficient performance, his claim of ineffective assistance fails.
Lewis has failed to establish that his counsel‘s failure to object to the trial court‘s response to the jury question was “objectively unreasonable.” Romer, 293 Ga. at 344. To that end, our precedent holds that because “[t]he need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court,” a “trial court ha[s] discretion to decline to answer the jury‘s question directly, and instead to direct the jurors to rely on instructions previously given.” Stepp-McCommons v. State, 309 Ga. 400, 405-407 (845 SE2d 643) (2020) (rejecting appellant‘s claim that trial counsel was ineffective for failing to object when the jury asked “[d]oes the definition of causing for death, close quote, in felony murder include both direct and indirect causes?” and the trial court responded, “[y]ou have been given the necessary definition in the charge; please continue“) (citations and punctuation omitted); Redding v. State, 296 Ga. 471, 473 (769 SE2d 67) (2015) (rejecting appellant‘s claim that the trial court plainly erred when it directed the jury to its prior instructions and the indictment in response to the question, “[d]oes the defendant have to be the person who actually committed the act[,] or can he be party to a group that committed the act,” because “[t]he trial court had discretion to decline to answer the jury‘s question directly“).
Here, the trial court exercised its discretion in “recharging” the jurors by referring them to the pattern instructions it had already provided and by declining to try to explain further the phrase “suggestions or promises of leniency or reward,” which was contained in that pattern charge.10 Lewis
the “strong presumption” that trial counsel‘s performance was adequate, see Strickland, 466 U.S. at 689. See also Ivey v. State, 305 Ga. 156, 162 (824 SE2d 242) (2019) (holding that the failure to raise a meritless objection is not deficient performance). His claim of ineffective assistance fails as a result. See Stepp-McCommons, 309 Ga. at 406.
4. Lewis contends that the trial court erred when it gave the following jury instruction on corroborating the testimony of an accomplice:
The [testimony] of a single witness, if believed, is sufficient to establish a fact. Generally there is no legal requirement of corroboration of a witness, provided you find that the evidence is sufficient. An exception to this rule is made in the case of felony murder where the witness is an accomplice. The testimony of the accomplice alone is not sufficient to warrant a conviction. The accomplice‘s testimony must be supported by other evidence of some type, and that evidence must be such as would lead to the inference of the guilt of the accused independent of the testimony of the accomplice.
(Emphasis supplied). But because Lewis did not object to this instruction at trial (a fact he concedes on appeal), we review his enumeration for plain error only. See Doyle v. State, 307 Ga. 609, 611 (837 SE2d 833) (2020).
For an appellant to establish plain error,
[f]irst, there must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant‘s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
State v. Kelly, 290 Ga. 29, 33 (718 SE2d 232) (2011) (citation and punctuation omitted) (emphasis in original). Moreover, “[t]o prevail on this argument requires [appellant] affirmatively to establish all four prongs of the plain error test, which is a difficult standard to satisfy.” Stepp-McCommons, 309 Ga. at 405. That means that Lewis cannot prevail if he fails to meet even one element of the plain error test. See Denson v. State, 307 Ga. 545, 548 (837 SE2d 261) (2019).
In most instances, the testimony of a single witness is sufficient to establish a fact under Georgia law. But that is not so in “felony cases where the only witness is an accomplice.”
Lewis argues that the trial court‘s jury instruction erroneously stated that the accomplice-corroboration requirement applied only to felony murder, rather than to all felonies, and that the instruction prejudiced the outcome of his trial by impermissibly authorizing the jury to find him guilty on
As a result, even though the trial court did not give the accomplice-corroboration instruction as to the non-felony murder counts, the State introduced a substantial amount of evidence that corroborated Richardson‘s testimony as to those counts, making it unlikely that the instructional error at issue here affected the outcome of Lewis‘s trial. See Kelly, 290 Ga. at 33. His claim of plain error therefore fails.11 See, e.g., Lyman v. State, 301 Ga. 312, 318-320 (800 SE2d 333) (2017) (holding that, although the trial court‘s complete failure to provide the accomplice-corroboration instruction
was a “clear error,” the appellant‘s claim failed under plain-error review because he could not establish that the error affected the outcome of his trial). Compare Pindling v. State, __ Ga. __, Case No. S21A0084 (decided April 5, 2021) (trial court plainly erred in failing to give the accomplice-corroboration instruction where “almost all of the evidence incriminating” the defendant came from an accomplice).
Judgment affirmed. All the Justices concur, except LaGrua, J., disqualified.