A jury fоund Truseno A1 Neely guilty of malice murder and possession of a firearm during the commission of a felony in the shooting death of Shelton Lee Brooks.
Construed to support the jury’s verdict, the evidence shows that Neely, who lived in Florida, was visiting his aunt in Quitman, Georgiа. On November 4, 2011, Kevin Fountain (“Fountain”), Neely’s co-defendant,
Fountain testified that he and Neely stopped at a convenience store, where they saw Brooks. Videotape from the convenience store showed all three individuals; Fountain was dressed in black and Neely was wearing a camouflage jacket. Brooks asked Fountain for a ride home; in exchаnge for the ride, Brooks promised to give them marijuana.
Once they arrived at Brooks’ apartment, Brooks said he did not have any marijuana and would “have to call someone to bring it.” Neely became angry and struсk Brooks multiple times in the face, knocked him to the floor, and kicked him in the face. Fountain testified that he attempted to leave, but Neely threatened him with a gun. At Neely’s insistence, Fountain helped him search the аpartment for marijuana but could not find any. Neely then shot Brooks in
The medical examiner testified that Brooks’ injuries were consistent with having been struck multiple times about both sides of the head and face at least 15 minutes before his death, a blunt force injury where he was struck with the muzzle of a gun, and a single contact gunshot wound that caused his death.
Brooks’ next-door neighbor heard “a bunch of fighting” in Brooks’ apartment, but never heard a gunshot. She kept a lookout to see who would leаve Brooks’ apartment, and saw two males — one in a camouflage jacket holding a gun, and the other “wearing all black.” She saw the man dressed in black go back up to the apartment, then return. Both men got into “a dark blue or black Honda Prelude with a scoop on the back,” backed out with the lights off, and drove away.
Neеly took the stand and testified in his own defense. He denied knowing Brooks, but said Brooks offered to sell marijuana to him, and that Fountain insisted that they go to
1. Neely argues that the evidence was insufficient to support his convictions, because the State’s case was “completely circumstantial” and did not exclude every other reasonable hypothesis except that of Neely’s guilt. The record, however, does not support this claim.
[Ujnder OCGA § 24-14-6, questions as to the reasonablenеss of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.
(Citation and punctuation omitted.) Smiley v. State,
2. Neely claims that his trial counsel was ineffective in failing to call a number of witnesses; he contends they would have testified that Fountain was seen with a firearm arоund the time of the murder.
To prevail on a claim of ineffective assistance, Neely must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington,
Neely argues that “numerous witnesses” could have testified on his behalf thаt Fountain was seen with a gun “in close proximity of time to the murder.” His appellate counsel examined trial counsel at length regarding various individuals who were identified as witnesses by the State or were interviewed by law enforcement during the investigation, as shown by summaries of the interviews in the record. According to these summaries, some individuals stated that Fountain displayed a pistol before or after the time of the murder. But only one potentiаl witness, Willie Johnson, testified at the hearing on the motion for new trial.
When a defendant claims that trial counsel performed defi-ciently in failing to call a witness for trial, the defendant may not rely on hearsay and speсulation, including prior unsworn statements, to prove the prejudice prong of his ineffectiveness claim. Rather, the defendant must introduce either testimony from the uncalledwitness or a legally recognized substitute for his testimony, such as an affidavit.
(Citations and punctuation omitted.) Manriquez v. State,
Neely’s trial counsel testified at the hearing on Neely’s motion for new trial that Neely sent him a list of witnesses, but that all those individuals were listed on the State’s indictment. Counsel spoke to the district attorney, whо did not plan to subpoena all the witnesses because some of them were not relevant to Neely’s part of the case. Other individuals appeared in reports prepared by GBI agents, but counsel notеd, “As you well know, just because they interview a witness, doesn’t mean a witness knows anything about the case.” Counsel testified that, as Neely was from Florida and had not been in the area long, he could not have known the witnesses, thаt any knowledge they had would not have helped Neely, and that he was “not prone to calling witnesses just to have people on the stand.” Trial counsel believed that even if Fountain may have had a gun the day bеfore, it was not relevant to his trial strategy. With respect to Johnson, trial counsel testified that if he had believed that his testimony would have helped Neely’s case, he would have called him.
Moreover, trial counsеl presented other evidence on Neely’s behalf to support his theory that Fountain, not Neely, committed the murder, and that Fountain had possession not only of “a black gun” of unknown caliber as testified to by J ohnson, but the murder weapon itself. Trial counsel called Fountain’s cellmate, who testified that Fountain confessed to him in jail that he had killed Brooks and could not sleep because “I keep seeing me killing that man.” On cross-examination, trial counsel confronted Fountain with his statement to a GBI agent that he had lied about Neely’s involvement, and elicited the admission from Fountain that he “had handled this gun for a week” and had a live pistol round matсhing the murder weapon in his pocket when he was arrested.
“A decision as to which defense witnesses to call is a matter of counsel’s trial strategy and tactics and will not support a claim of ineffective assistаnce of counsel unless it is so unreasonable that no competent attorney would have made the decision under the circumstances.” Shockley v. State,
Judgment affirmed.
Notes
The crime occurred on Novеmber 5, 2011. On October 3,2012, a Brooks County grand jury indicted Neely for malice murder and possession of a firearm during the commission of a felony. He was tried before a jury June 25-26, 2013. The jury found Neely guilty on both counts, and he was sentenced tо life imprisonment without the possibility of parole for murder and five years for the firearms charge. Neely’s motion for new trial was filed on July 5, 2013, amended on August 26, 2014, and denied on September 29, 2014. His notice of appeal was filed on October 9,2014, and the case was docketed in this Court for the April 2017 term. The case was submitted for decision on the briefs.
At trial, which occurred in June 2013, Fountain entered a plea to voluntary manslaughter and agreed to testify against Neely.
A witness from Florida testified that he had loaned the car to Neely after Neely told him he wanted to visit his sick grandmother.