S19A1637. LONDON v. THE STATE.
S19A1637
Supreme Court of Georgia
FEBRUARY 10, 2020
308 Ga. 63
ELLINGTON, Justice.
FINAL COPY
Following a jury trial, LaParrish London was convicted of the malice murder of Eric Terrell.1 London contends on appeal that (1)
We affirm for the reasons set forth below.
Viewed in a light most favorable to the verdicts, the evidence presented at trial showed the following. After responding to a 911 call placed at 2:32 a.m. on March 24, 2015, police officers found Terrell‘s body lying face down in a pool of blood in the parking lot of the Portofino apartment complex in DeKalb County. Terrell had been shot four times in the head and face. Shortly after the shooting, an apartment resident saw two men running toward the front of the complex.
Terrell‘s car was parked five to six feet away from his body. Blood covered the driver‘s seat of the car and both the inside and outside of the driver‘s side front window. Terrell‘s pants had been pulled down and his pockets had been pulled out. Officers found 9mm cartridge casings, a 9mm live round, and a .38-caliber bullet at the crime scene.
A later search of Terrell‘s car revealed four bags of cocaine. A fingerprint analyst determined that five latent fingerprints found on the passenger door frame and window of Terrell‘s car were a match for London‘s fingerprints.
Terrell‘s cell phone records showed numerous calls to Terrell‘s phone less than an hour before the shooting from a cell phone number registered in the name of “Blakk London.” An investigator determined that London‘s picture was associated with the “Blakk London” phone number.
The “Blakk London” cell phone records also showed contact with Jeffrey Burks. At trial, Burks testified that on the morning of the murder he called London between 2:00 a.m. and 3:00 a.m., but London did not answer the phone. The following day, Burks picked up London and drove him to a Motel 6. Although Burks testified at trial that he could not remember London saying something to him about a gun for sale, the officer who interviewed Burks testified that during the interview Burks told the officer that London had “said something about trying to sell a gun.”
In May 2015, during the course of an unrelated burglary investigation, City of Clarkston police officers arrested brothers Donnell Reed and Darnell Reed on charges of theft by receiving and marijuana possession, respectively, after which they were interviewed in connection with Terrell‘s murder. The Reed brothers testified at London‘s trial. Donnell Reed testified that in March 2015 he had been living in a building at the Portofino Apartments. After the shooting, London told Donnell Reed, “you remember what happened in the back, I did that.” Donnell Reed acknowledged telling a detective that he saw London with a “big” 9mm gun at that time.
Darnell Reed testified that he did not remember being interviewed by police or giving a written statement following his arrest in May 2015. Darnell Reed‘s video interview and his written statement to the police were admitted into evidence and published to the jury. In his written statement, Darnell Reed wrote that “Solo,” which other testimony showed to be London‘s nickname, and another individual, Cameron, “came to [Darnell Reed‘s] spot 2 days after the murder and told [Darnell Reed] they set up the guy to rob him, and Cam shot him first and Solo finish[ed] him.”
1.
London contends that the evidence was insufficient to support his murder conviction. When evaluating the sufficiency of evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
The indictment alleged that London “did with malice aforethought cause the death of Eric Terrell[,] a human being, by shooting him with a handgun[.]” London points out that the State did not present the
2.
London contends that the trial court erred in denying his motion for a new trial on the general grounds because the trial court failed to appropriately fulfill its role as the “thirteenth juror.” A trial court may grant a new trial “[i]n any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity[,]”
In its written order, the trial court set forth the correct standard in ruling on a motion on the general grounds, including its responsibility to exercise its discretion as the “thirteenth juror.” Following its independent examination of the evidence, the trial court declined to grant London a new trial. As the trial court exercised its discretion as the “thirteenth juror,” and as this Court has found the evidence sufficient to support the verdict, we identify no abuse of discretion in the trial court‘s denial of the motion for new trial. See Smith v. State, 300 Ga. 532, 534 (1) (796 SE2d 671) (2017).
3.
London claims that the trial court erred in admitting Darnell Reed‘s written statement to police and the video recording of his police interview because those statements constituted inadmissible hearsay. He further contends that the statements’ admission violated the Confrontation Clause of the State and Federal Constitutions because Darnell Reed had no memory of the events about which he had been called to testify. We conclude that the written statement and the video interview were admissible under
At trial, a police officer testified that he took Darnell Reed‘s written statement following his arrest in May 2015. The statement was admitted by the trial court “for the record only,” and with the limitation that the State could not then disclose its contents to the jury. Darnell Reed subsequently testified that he did not remember being interviewed by the police or making a written statement following his arrest. When the prosecutor presented Darnell Reed with the written statement, he contended that he did not recognize the handwriting or the signature at the bottom of the document, and he maintained that the signature was not his signature. Darnell Reed maintained that he could not recall anything from his police interview. According to Darnell Reed, he did not have “the best memory” after being shot in the head two years earlier. Darnell Reed was then cross-examined by the defense.
Following its authentication by the testimony of a police officer, a redacted version of Darnell Reed‘s police interview recording
(a) Extrinsic evidence of a witness‘s prior inconsistent statement is admissible under
(b) Nor was London denied his right to confront Darnell Reed. The Confrontation Clause affords “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (106 SCt 292, 88 LE2d 15) (1985) (citation and emphasis omitted). A witness‘s memory loss does not foreclose the opportunity for effective cross-examination. See United States v. Owens, 484 U. S. 554, 564 (108 SCt 838, 98 LE2d 951) (1988) (The Confrontation Clause is not violated “by admission of an identification statement of a witness who is unable, because of a memory loss, to testify concerning the basis for the identification.“); Fensterer, 474 U.S. at 21-22 (“The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion.“). London‘s trial counsel cross-examined Darnell Reed at length and secured, among other things, Darnell Reed‘s admission that he “wouldn‘t even trust [his] own words.” See Brown v. State, 266 Ga. 723, 725 (2) (470 SE2d 652) (1996) (“The [S]ixth [A]mendment . . . is satisfied if a defendant is given the opportunity to cross-examine a forgetful witness about his bias, his lack of care and attentiveness, and even the very fact that he has a bad memory.“) (citation and punctuation omitted)).
In view of the foregoing, the trial court did not err in the admission and publication of Darnell Reed‘s out-of-court statements.
4.
Lastly, we address London‘s claim that his trial counsel was ineffective in failing to object and move for a mistrial in light of the prosecutor‘s numerous improper statements during closing argument impugning the character of trial counsel. To succeed on his claim of ineffective assistance, London
has the burden of proving both that the performance of his lawyer was professionally deficient and that he was prejudiced as a result. To prove deficient performance, [London] must show that his trial counsel acted or failed to act in an objectively unreasonable way, considering all of the circumstances and in light of prevailing professional norms. To prove resulting prejudice, [London] must show a reasonable probability that, but for counsel‘s deficiency, the result of the trial would have been different. In examining an ineffectiveness claim, a court need not address both components of the inquiry if the defendant makes an insufficient showing on one.
(Citation and punctuation omitted.) Haney v. State, 305 Ga. 785, 790 (2) (827 SE2d 843) (2019). See Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984).
London‘s trial counsel testified at the motion for new trial hearing that he had strategic reasons for not objecting to the State‘s closing argument. He maintained that he did not want to “draw attention” to the prosecutor‘s comments and that, in addition, he was then able to “respond in kind” in his own closing argument. The transcript shows that in his closing argument trial counsel employed some of the same terminology used by the prosecutor.2
Generally, “closing argument is appropriate as long as it is based on evidence that is properly before the jury.” Smith v. State, 284 Ga. 599, 602 (2) (a) (669 SE2d 98) (2008). The prosecution and defense are afforded wide latitude in making closing argument in a criminal trial. Spiller v. State, 282 Ga. 351, 354 (674 SE2d 64) (2007). We assess closing arguments “in the context in which they are made.” Adams v. State, 283 Ga. 298, 302 (3) (e) (658 SE2d 627) (2008). However, “counsel should adhere to the highest standards of professionalism and proper courtroom decorum, and, accordingly, we find distasteful any argument that unnecessarily impugns the integrity of opposing counsel, even if obliquely.” Gissendaner v. State, 272 Ga. 704, 713 (10) (a) (532 SE2d 677) (2000) (citations omitted).
Here, we cannot approve of the prosecutor‘s use of inflammatory language tending to impugn the character of trial counsel or her direct personal attacks on trial counsel, particularly her characterization of him as “smug,” and her assertion that he should apologize to the victim‘s family. See Miller v. State, 228 Ga. App. 754, 757 (6) (492 SE2d 734) (1997) (“Personal remarks have no place in the State‘s closing argument.” (citation omitted)). The trial court would not have abused its discretion in sustaining an objection to such remarks. “Nevertheless, there are often sound tactical reasons for not objecting to every improper statement made by the prosecution during closing argument.” Smith, 284 Ga. at 602 (2) (a). Apart from several improper remarks, the prosecutor made a closing argument based on the evidence, and trial counsel responded with a closing argument based on the evidence while appropriating, as a rhetorical device, some of the language previously employed by the prosecutor. It was within the wide range of reasonable professional assistance for trial counsel to decline to object to the prosecutor‘s improper remarks and therefore did not constitute ineffective assistance of counsel.
Judgment affirmed. All the Justices concur.
DECIDED FEBRUARY 10, 2020.
Murder. DeKalb Superior Court. Before Judge Jackson.
Kenneth W. Sheppard, for appellant.
Sherry Boston, District Attorney, Emily K. Richardson, Harry S. Ruth, Lenny I. Krick, Shannon E. Hodder, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.