Powell v. StatePowell v. State
Appellant Kenneth N. Powell was tried before a Dougherty County jury and convicted of malice murder in the shooting death of Lionel Turner.1 Appellant contends that the evidence was insufficient to sustain his conviction, that the trial court erred in
Viewed in a light most favorable to the verdict, the evidence at trial showed the following. In mid-June 1993, Appellant‘s cousin, Tony Powell (“Powell“), was allegedly assaulted by Turner and Stephon Davis. On June 19, Appellant and Donny Mimbs walked around their neighborhood searching for Turner and Davis. A witness testified that Aрpellant had “a problem” with Turner. Appellant was carrying a gun in his hand and looked upset.
During their search, Appellant and Mimbs crossed paths with Powell and two other men, who joined the group. Powell asked Appellant to put the gun away, but Appellant refused. Appellant told Powell that he was looking for Davis because Davis and Turner had “jumped on” Powell.
When the group reached Davis‘s girlfriend‘s house, Appellant told a resident to tell Davis that Appellant was “going to get him” because “it wasn‘t right how [Davis] did that night when they was
Turner‘s grandmother, who was on the porch with Turner, testified that she saw three men approaching “like they were mad.” Mimbs “reached and got the gun” from Appellant and shot Turner. Turner‘s grandmother ran into her house after the first shot. She testified that, before she fled inside, she saw that Appellant and Powell remained on the porch steps. Once inside, she heard three more shots.
According to Powell, Mimbs went up onto the porch first. Mimbs told Appellant “you ought to kill the S. O. B.,” and then “snatch[ed]” the gun from Appellant. Mimbs shot Turner once and then, after a struggle between the two, shot him a second time, after which Turner collapsed. Mimbs fired a third shot at Turner‘s hip area. Appellant then took the gun back from Mimbs and shot Turner
Another cousin of Powell‘s, Larry Brown, was approximately four houses away from the scene at the time of the shooting. He testified that he saw Mimbs grab the gun from Appellant and fire four shots. Brown saw Appellant “throw a chair.” Another witness testified that, after hearing about the shooting, she accused Appellant of shooting “that boy,” and Appellant responded, “yeah,” adding that anyone who assaulted his cousin “needs to be dead.”
The testimony of the pathologist who performed Turner‘s autopsy showed that Turner suffered gunshot wounds to the chest, abdomen, right buttocks, and right knee. According to the pathologist, Turner bled to death. The pathologist agreed on cross-examination that the wound to Turner‘s chest, which passed through both lungs and the aorta, would have caused death within a minute. He also tеstified that, in reference to the gunshot to the knee, “[i]f it contributed at all [to Turner‘s death], it was a minor
1. Appellant contends that the evidence was legally insufficient to support his malice murder conviction because Mimbs is solely responsible for Turner‘s death. Appellant argues that, while evidence showed that he shot Turner in the knee, the knee injury was minor and Turner was already dead because his aorta had been severed when Mimbs shot him in the chest. Further, Appellant argues, hе did not aid or abet Mimbs, who grabbed the gun out of Appellant‘s hands and then fatally shot Turner.
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) (Emphasis omitted.). Here, the evidence is sufficient to show that Appellant was a party to the crime of malice murdеr. See
In relevant part, a person is concerned in the commission of a crime only if he “(3) Intentionally aids or abets in the commission of the crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.”
The evidence showed that Appellant and Mimbs canvassed the
2. Appellant contends that the trial court erred in failing to instruct the jury on (a) causation in a homicide case, (b) the respective responsibilities of the trial court and the jury, (c) circumstantial evidence, and (d) venue. Although Appellant reserved the right to object to the jury instructions as was customary at the time of his 1993 trial,2 he was not relieved from the necessity of requesting instructions other than “in those cirсumstances where
(a) Appellant contends that the trial court erred in failing to instruct the jury sua sponte on causation in a homicide case. That standard, as Appellant correctly points out, is proximate causе. See
The indictment, which the trial court read to the jurors and which was provided to them during their deliberations, charged Appellant with the offense of malice murder in that he “did unlawfully and with malice aforethought cause the death of . . . Turner . . . by shooting [him].” The trial court instructed the jury that “a person commits murder when that person unlawfully and with malice aforethought . . . causes the death of another human being.” The court also thoroughly instructed the jury on the law of parties to a crime. Considering the charge as a whole, the jury was informed that, in order to convict, it was required to determine that Appellant either caused or was a party in causing Turner‘s death. As the charge did not fail to provide the jury with the proper guidelines for determining guilt or innocence, the trial court did not err in failing to give a separate charge on causation in a homicide case. See Whiting v. State, 296 Ga. 429, 430-431 (2) (768 SE2d 448) (2015) (in the defendant‘s felony murder trial, the charge as given was sufficient to inform the jury that it was required to find that the
(b) Appellant claims that the trial court erred in failing to fully instruct the jury on the respective responsibilities of the trial court and the jury. During its final instruction, the trial court charged, “[n]ow, you, as the jury in this case, will determine both the law and the facts.” Appellant argues that the instruction given was misleading and that the trial court was obligated to fully instruct the jury that it was bound by the court‘s instructions and was required to apply the law given by the court.
The language charged by the trial court “was formerly in the
The transcript also shows that, before closing argument, the trial court instructed the jurors to keep their “minds clear” until they heard counsels’ arguments and “the charge of the Court, so you will know what the appropriate law is to apply to the facts that you find
(c) Appellant contends that the trial court erred in failing to charge the jury on circumstantial evidence. Where, as here, the State presents both direct and circumstantial evidence, a trial court
(d) Appellant further contends that the trial court erred in failing to charge the jury on venue. We have urged, and continue to urge, trial courts to give appropriate charges on venue. See, e.g., Thompson v. Brown, 288 Ga. 855, 858 (708 SE2d 270) (2011); Lynn v. State, 275 Ga. 288, 290 (3) (565 SE2d 800) (2002). However, “where venue is proven and the trial court charges the jury generally on the law of reasonable doubt, it is not necessary for the court to charge the jury that proof of venue is a material allegation of the indictment.” Shahid v. State, 276 Ga. 543, 543-544 (2) (579 SE2d 724) (2003) (citation and punctuation omitted). Accord Harwell v.State, 230 Ga. 480 (1) (197 SE2d 708) (1973). See also Lanham v. State, 291 Ga. 625, 627 (3) (732 SE2d 72) (2012) (“[W]e have declined to reverse a conviction and require a new trial based on the trial court‘s failure to sua sponte instruct the jury on venue.“). Here, the State presented unrebutted evidence that Turner was shot and killed in Dougherty County, where the case was tried. See
[i]f after considering the testimony and evidence presented to you, together with the charge of the Court, you should find and believe beyond a reasonable doubt that the defendant did, in Dougherty County, Georgia, on or about the date alleged in the indictment, commit the offense of murder as alleged in Count 1, then you‘d be authorized to find the defendant guilty.
(Emphasis supplied.) Accordingly, in the absence of a request, the trial court‘s failure to charge the jury on venue was not reversible error. See Lanham, 291 Ga. at 627 (3); Shahid, 276 Ga. at 543-544 (2).
3. Appellant contends that trial counsel provided ineffective assistance in failing to request jury instructions on (i) causation in a homicide case, (ii) the respective responsibilities of the trial court and jury, (iii) circumstantial evidence, (iv) venue, (v) Appellant‘s failure to testify, and (vi) the lesser offense of voluntary manslaughter. To establish ineffective assistance of counsel, a defendant must show that his trial counsel‘s performance was professionally deficient and that, but for such deficient performance, there is a reasonable probability that the result of the trial would have been different. See Strickland v. Washington, 466 U. S. 668, 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 (3) (745 SE2d 637) (2013) (citation omitted). See also Strickland, 466 U. S. at 687-688. This requires a defendant to overcomе the strong presumption
(a) Appellant cannot show that his counsel was ineffective in failing to request jury instructions addressing (i) causation in a homicide casе, (ii) the respective responsibilities of the trial court and jury, (iii) circumstantial evidence, and (iv) venue. Assuming that trial counsel was deficient in failing to request these charges, the omission of these charges did not fail to provide the jury with the proper guidelines for determining guilt or innocence. See Division 2, supra. Considering the jury instructions as a whole as well as the relevant evidence, Appellant cannot show that, had the charges been
(b) Appellant, who did not testify at trial, claims that his trial counsel was ineffective in failing to request an instruction informing the jury that he was not required to take the stand and testify in his defense, and that no adverse inference shall be drawn by the jury from his failure to testify. Thе evidence that Appellant was a party to Turner‘s murder was strong, and the trial court instructed the jury on the State‘s burden of proof and the presumption of innocence. Nor does Appellant point to any improper reference by the State to his failure to testify. Pretermitting whether trial counsel‘s performance was deficient, we conclude that Appellant cannot establish a reasonable likelihood that his counsel‘s failure to request the charge changed the outcome of the trial. See Mitchell v. State, 282 Ga. 416, 421 (6) (e) (651 SE2d 49) (2007) (in the absence of a
(c) Appellant also contends that his trial counsel was deficient in failing to request a jury charge on the lesser offense of voluntary manslaughter. See
(d) The effect of prejudice arising from trial counsel‘s deficient performance is viewed cumulatively. Schofield v. Holsey, 281 Ga. 809, 811 (II) n.1 (642 SE2d 56) (2007) (“[I]t is the prejudice arising from ‘counsel‘s errors’ that is constitutionally relevant, not that each individual error by counsel should be considered in a vacuum.” (citation and punctuation omitted)). For the reasons stated in Division 3 (c), trial counsel was not deficient in failing to request a charge on voluntary manslaughter. Assuming that trial counsel was deficient in failing to request the jury charges addressed in Divisions 3 (a) and (b), the cumulative prejudice from the assumed deficiencies is insufficient to show a reasonable probability that the result of the trial would have been different in the absence of the alleged deficiencies.
Judgment affirmed. All the Justices concur.
Peterson, Justice, concurring.
The Georgia Constitution has long provided that “the jury shall be the judges of the law and the facts.”
But the Court‘s opinion is a faithful application of case law that has been consistent since at least 1940. See, e.g., Harris v. State, 190 Ga. 258, 260-264 (9 SE2d 183) (1940) (overruling inconsistent opinions that interpreted the provision more broadly). And no party has challenged that precedent as failing to apply the original public meaning of the Georgia Constitution, much less explained whether the principles that guide our constitutional interpretation would even allow such a challenge at this late date. Compare Elliott v.State, 305 Ga. 179, 182-184 (II) (A) (824 SE2d 265) (2019) (constitutional provision carried forward from previous Constitution presumed to cаrry with it the provision‘s original public meaning) with id. at 184-187 (II) (B) (constitutional provision carried forward from previous Constitution presumed to carry with it our consistent and definitive interpretation). Accordingly, I join the Court‘s opinion in full.
Notes
A person commits the оffense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in аll cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder.