Michael Reginald McLean appeals his conviction for felony murder in connection with the shooting death of Perry Phillips. For the reasons that follow, we affirm.
Construed to support the verdicts, the evidence showed that McLean and Jermarae Herbert drove from North Carolina with a woman and a man known as “Slim” to visit Treimain Thomas and Torrence McMillian in Clayton County, Georgia. At a gas station in Clayton County, they purchased marijuana from Phillips, and then went to the apartment of Thomas and McMillian, where they spent the night. The next morning, the four visitors spoke of buying more marijuana, and McLean, using Thomas’s cell phone, called Phillips and arranged to meet. He, Herbert, and Slim then discussed robbing Phillips. Thomas had left a pistol on a counter in the kitchen. McLean handled it for a few minutes. McLean, Herbert, and Slim then left the apartment, taking the pistol with them. They drove in Herbert’s vehicle to meet Phillips, and Phillips entered the back seat side of the vehicle with McLean; Herbert was in the driver’s seat, and Slim was in the front passenger’s seat. When Phillips produced the marijuana, McLean drew the pistol from his clothing and fatally shot Phillips in the abdomen. Herbert stopped the vehicle and Phillips’s body was removed from it.
The three men returned to the apartment of Thomas and McMillian, speaking excitedly. There, Herbert said that McLean had shot Phillips; McLean said that Phillips should not have acted aggressively. Thomas and McMillian testified at McLean and Herbert’s joint trial; Slim made no appearance at this trial. Herbert’s conviction for felony murder was affirmed. See Herbert v. State,
1. McLean contends that the evidence was insufficient to support the verdicts as it largely rested upon the testimony of witnesses who were unreliable. “When this Court reviews the sufficiency of the evidence, it does not re-weigh the evidence or resolve conflicts in witness testimony, but instead it defers to the jury’s assessment of the weight and credibility of the evidence. [Cit.]” Greeson v. State,
2. McLean’s motion to sever his trial from that of Herbert was denied, which he contends was error.
In a murder case where the death penalty is not sought, the trial court has broad discretion to grant or deny a motion for severance. In exercising that discretion, the trial court must consider the following factors: (1) Will the number of defendants create confusion as to the law and evidence applicable to each? (2) Is there a danger that evidence admissible against one defendant will be considered against the other despite the court’s instructions? (3) Are the defenses of the defendants antagonistic to each other or to each other’s rights?
Butler v. State,
3. During the direct examination of a detective who had questioned Herbert, the State asked: “[d]id Mr. Herbert tell you where the gun was?” The detective answered: “I believe he said they threw it out on the side —,” at which point counsel for Herbert objected. After the jury was excused, Herbert moved for a mistrial, in which McLean joined. McLean contends that his right to confrontation was violated under Bruton v. United States,
In Bruton, supra, the Court held that a defendant’s Sixth Amendment right of confrontation is violated, despite cautionary instructions, when: (a) co-defendants are tried jointly; (b) one co-defendant’s confession is used to implicate the other co-defendant in the crime; and (c) the co-defendant who made the implicating statement employs his Fifth Amendment right not to testify and thus does not take the stand to face cross-examination about the statement. [Cit.] Bruton excludes only the statement of a nontestifying co-defendant that standing alone directly inculpates the defendant. [Cits.]
Nelms v. State,
4. McLean now asserts that the trial court should have instructed the jury that, as to each crime in the indictment, a defendant must knowingly participate in the crime, using the pattern instruction. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.43.10 (4th ed. 2007). See also Eckman v. State,
First, 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.
Id. (Citations and punctuation omitted.) However, to the extent that the omission was error, there is no likelihood that it affected the outcome of the trial, as the court instructed the jury on the law regarding criminal intent, including that it is an element of all crimes charged; the State’s burden to prove all elements of the crimes charged beyond a reasonable doubt; parties to a crime; and mere presence. See Allen v. State,
5. Finally, McLean contends that his trial counsel failed to provide effective representation in a number of respects. In order to prevail on this claim, McLean must show both that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense. Smith v. Francis,
[A] charge on equal access is appropriate to counter a jury instruction on presumption of possession, and is not necessary otherwise. Equal access is merely a defense available to the accused to whom a presumption of possession flows. Where the State did not show the indicia giving rise to the presumption, that is, ownership or exclusive control of the vehicle, no presumption arose and therefore there was no triggering of the equal access defense.
State v. Johnson,
(b) Counsel also requested that the court give the pattern jury instruction on “identification,” presumably referring to section 1.35.11 of the Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed. 2007). However, during the charge conference, the court stated that it did not believe that identification was an issue in the case; McLean’s counsel did not object at that time, or after the court gave its jury instructions, which did not include any charge regarding identification. On appeal, McLean contends the failure to raise any objection was deficient performance, and states that “[identification of Appellant was a central issue in this case,” but does not elucidate that contention. At trial, Thomas and McMillian both clearly identified McLean in court as one of the men who was in their apartment planning the robbery of Phillips, and later discussing it; they were not cross-examined on this portion of their testimony and no contrary evidence was introduced to challenge the reliability of their identification of McLean.
“ ‘[T]here is no requirement of our law that a trial judge warn the jury against the possible dangers of mistaken identification of an accused as the person committing a crime.’ [Cit.]” Weems v. State,
(c) McLean now contends that a jury instruction on the principle that the conviction of one of the defendants did not necessitate the conviction of the other defendant was warranted. See Hightower v. State,
While this Court has stated that the “better practice” is to give the instruction at issue, failure to do so when the instruction is not requested does not constitute reversible error when the instructions, viewed as a whole, direct the jury to make a separate determination as to the guilt or innocence of each defendant. See Nicholson v. State,
Judgment affirmed.
Notes
Phillips was killed on February 18,2006. On May 16,2007, a Clayton County grand jury indicted McLean, along with Treimain Davon Thomas, Torrence Lesean McMillian, and Jermarae Rashawn Herbert for malice murder, felony murder while in the commission of armed robbery, armed robbery, and aggravated assault. McLean was tried with Herbert before a jury June 9-13,2008; both men were acquitted of malice murder but found guilty of all other charges. Herbert’s conviction for felony murder was affirmed. See Herbert v. State,
The jury was instructed on the law regarding party to a crime. See Butler, supra.
Herbert’s motion for a mistrial based upon Bruton was apparently premised upon a belief that the detective was testifying about a statement McLean gave, but this was not so; the testimony was clearly about the detective’s questioning of Herbert. See Herbert, supra at 848 (5).
OCGA § 17-8-58 reads:
(a) Any party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. Such objections shall be done outside of the jury’s hearing and presence.
(b) Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court’s attention as provided in subsection (a) of this Code section.