SIMMONS v. THE STATE
S22A0620
In the Supreme Court of Georgia
Decided: October 25, 2022
McMILLIAN, Justice.
NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court‘s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court‘s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
McMILLIAN, Justice.
The evidence presented at trial showed that both Lee and Simmons were members of the “Bloods”2 gang and involved in trafficking methamphetamine.3 On December 23, 2013, Lee was driving with his girlfriend, Tongol, to Wayne County to drop off his children at their mother‘s home. Tongol testified that after dropping off the children, Lee said he had to make a stop and was on the phone with another person who gave him directions to an abandoned house. When Lee and Tongol arrived, two armed men approached either side of the car “asking for money.” Tongol said her purse was “snatched” from her after she got out of the car. Lee ran in one direction, and the two men followed him. Tongol ran in the opposite direction until she found people and asked to use their phone to call 911.4 Tongol told the 911 operator that the men were armed; that she heard gunshots; and that Lee was likely shot, as she believed Lee to be unarmed.
Wayne County dispatch received a call at 11:49 p.m. on December 23, 2013, and officers responded to an area known as “the Hill.” One investigator made contact with Tongol and then at 11:53 p.m. arrived at the abandoned house where Tongol told him she had left her car. There, the investigator found Lee unresponsive. The responding paramedic testified that Lee showed no signs of life. A Georgia Bureau of Investigation (“GBI“) forensic pathologist performed Lee‘s autopsy and testified that there were five bullet wounds in Lee‘s body and that the cause of death was multiple gunshot wounds.
A GBI special agent who responded to the crime scene around 1:00 a.m. on December 24 testified at trial that Lee‘s body was located on the ground behind the house. The special agent also testified that he observed items that the coroner removed from Lee‘s pockets, including a bag of green leafy material consistent with marijuana, a bag of white
GBI Investigator Lawrence Kelly was also involved in the investigation into Lee‘s death. During that investigation, Investigator Kelly talked to Lee‘s brother, Luis Bowden, who said that he was involved in drug distribution in Wayne County with both Simmons and Lee. Investigator Kelly then turned his investigation to and began communicating with Simmons. In January 2014, Investigator Kelly tried to arrest Simmons, but Simmons fled from his parole officer who was attempting to execute the arrest warrant. Eventually, Simmons was located in Virginia, where Investigator Kelly interviewed him on March 1, 2014. This interview lasted over five hours and the audio was played for the jury at trial almost in its entirety.5
In his recorded interview, Simmons said that he was given instructions from a higher-ranking Bloods gang member known as “Bishop,” who was involved with a Mexican drug cartel.6 Bishop instructed Simmons to contact Lee because Lee owed $41,000 in relation to the methamphetamine trafficking. Simmons admitted to being at the crime scene, saying that he traveled alone to meet Lee in Jesup while Dominique Brown, Simmons‘s brother, and Gabe Frazier drove separately to the same location. At the crime scene, Simmons instructed Brown and Fraizer to “dog pil[e]” or beat up Lee and then put Lee on the phone with Bishop. Simmons was supposed to take Lee to Atlanta to face members of a Mexican cartel who provided the methamphetamine that Lee was selling and to whom Lee owed the money. According to Simmons, he instructed Brown and Fraizer not to cause permanent physical damage and not to kill Lee. Simmons also said that if he had known Fraizer and Brown were going to shoot Lee, he would have stopped it. Simmons further admitted that, after Brown shot Lee, Simmons disposed of the firearm by giving it to someone behind a gas station near Atlanta.
Other evidence also supported Simmons‘s statement that he had been at the crime scene. Investigator Kelly testified that a cell phone from Tongol‘s purse was dumped outside of her car. The cell phone‘s number matched the phone number that family members said belonged to Lee; investigators were unable to determine the cell phone owner for the last call made on the phone. Simmons told Investigator Kelly during his interview that on December 23, he was at “the Beehive” in Liberty County - a gathering place for “Bloods” members. Then, Simmons drove to his apartment in Wayne County before driving to “the Hill,” where Lee was shot. Investigator Kelly retrieved records for cell phones belonging to Simmons and Lee, as well as from the unknown number from Lee‘s recent calls. Then, he used the times, dates, and cell phone tower locations of each device to create a map of the cell phones’ locations on the night of the shooting. Simmons‘s location, based on the cell phone records, was consistent with Simmons‘s interview statements. Additionally, the unknown number recovered from Lee‘s cell phone was in the area of the Beehive at the same time as Simmons‘s device and then was in Wayne County around the same time as Simmons‘s device. Lee‘s phone and Simmons‘s phone were shown to be in the area where Lee was killed around the same time. Simmons testified that gang members often share or exchange phones and frequently change phone numbers.
Simmons testified at trial in his own defense and stated that he lied during his interview with Investigator Kelly and that, when he asked to call his wife during the interview, he actually called another member of the “Brims” (a subset of the “Bloods“) known as “Tee Tee” and was set up on a three-way call with Steven Cortez. Simmons was following gang protocol when he called Cortez, who ranked above Bishop in the “Bloods” gang hierarchy. Simmons testified that, after the phone call with Cortez, he lied to Investigator Kelly about being at the scene when Lee was killed, about giving away the gun, and about the whole story he told law enforcement during his interview. He said that he was supposed to be the “fall guy” because his “name was already out there,” given that Lee‘s family had posted on Facebook the morning after the shooting that Simmons killed Lee. He was also supposed to take his brother, Brown, down with him.
Simmons testified that, unlike what he said in his interview with Investigator Kelly, he was not present when Lee was shot and was actually at the “Beehive” all night. Simmons also claimed at trial that, on the night of the shooting, Lee was supposed to bring Simmons marijuana, but Lee was not answering his phone.7 Simmons testified that Fraizer was notified that Lee was on the way to Wayne County, and Fraizer, Brown, Cortez, and others left to go meet with Lee. Simmons claimed that Brown and Fraizer were present at the shooting, but could not say who the shooter was because he was not there. Simmons said that he found out about the shooting later that night. Fraizer, who was not on trial in this case, was called by the defense as a witness but invoked his Fifth Amendment right against self-incrimination and did not testify.
1. Simmons asserts that the evidence was insufficient to sustain his convictions as a matter of constitutional due process. In reviewing sufficiency, we must determine whether “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 in original). In doing so, “[w]e construe the evidence presented in the light most favorable to the verdict, and neither reweigh it nor determine witness credibility.” Terrell v. State, 300 Ga. 81, 84 (1) (793 SE2d 411) (2016).
Simmons was convicted of and sentenced on the following: felony murder while in the commission of aggravated assault,8 aggravated assault of Tongol by pointing a handgun at her, and two violations of the Street Gang Terrorism and Prevention Act,
2. Simmons next asserts that the trial court committed two errors in its instructions to the jury by failing to completely instruct the jury that a confession must be corroborated as required by
Because Simmons did not preserve either claim for ordinary appellate review by objecting at trial, we review only for plain error. See Rawls v. State, 310 Ga. 209, 218 (4) (850 SE2d 90) (2020). The four prongs of the plain error analysis are set out in State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011), as follows:
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.
(Punctuation omitted; emphasis in original.) “The Court need not analyze all of the elements of the plain error test when the appellant fails to establish one of them.” Hill v. State, 310 Ga. 180, 194 (11) (a) (850 SE2d 110) (2020).
(a) Simmons first asserts that the trial court failed to instruct the jury completely on the principles codified in
Simmons cannot show error, much less plain error. The trial court advised the jury that “a defendant‘s out-of-court statement that is not supported by any other evidence
Moreover, even assuming error in failing to provide more complete instructions on confession-corroboration, there was ample evidence at trial to corroborate Simmons‘s statements, including the cell phone records and testimony from Tongol, Bowden, and Investigator Kelly such that it is unlikely that the failure to instruct more on confession-corroboration affected the outcome of the proceedings. Thus, we conclude that there was no plain error because Simmons has failed to show clear and obvious error and that any purported error affected his substantial rights. See Hooper v. State, 313 Ga. 451, 457 (2) (870 SE2d 391) (2022) (no plain error where appellant failed to demonstrate that trial court‘s alleged error in giving “incomplete” confession-corroboration jury charge likely affected outcome of the trial in light of “ample corroborating evidence” of his statements); English v. State, 300 Ga. 471, 474 (2) (796 SE2d 258) (2017) (no plain error where corroboration was not required for admissions and even if the statements were confessions, appellant failed to show that the failure to instruct on corroboration likely affected the outcome of the proceedings because there was ample evidence to corroborate the statements).
(b) Simmons next asserts that the trial court plainly erred in instructing the jury that evidence of flight had been introduced and that the evidence could only be considered if the jury found it more likely than not that Simmons fled to avoid arrest. See Renner v. State, 260 Ga. 515, 518 (3) (b) (397 SE2d 683) (1990) (It is “error for a trial court in a criminal case to charge the jury on flight.“).
We agree that this instruction was a clear and obvious error. See Rawls, 310 Ga. at 219 (4) (a) (“Accordingly, the trial court committed a clear and obvious error by instructing the jury on flight in disregard of Renner.“). However, Simmons has not shown how the instruction “affected his substantial rights, meaning that it probably affected the outcome of the trial.” Id. at 213 (3). There was ample evidence other than evidence of Simmons‘s flight to establish his guilt, including Simmons‘s own admissions and contradicting testimony, testimony from Tongol, Bowden, Investigator Kelly, and a criminal street gang expert, and cell phone records mapping out Simmons‘s phone location on the night of the shooting. Therefore, “[t]here is no reason to believe that this particular instruction caused the jury to give undue weight to the flight evidence, particularly given the other strong evidence against Appellant.” Id. at 219 (4) (a). For these reasons, this enumeration fails.
3. Simmons also asserts that his trial counsel rendered ineffective assistance on three grounds. To prevail on these claims, Simmons must prove both that his counsel‘s performance was deficient and that he was prejudiced by the deficient performance. See Strickland v. Washington, 466 U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). Deficient performance by trial counsel requires
a. Simmons asserts that his trial counsel rendered ineffective assistance in failing to object to the jury instruction on confession-corroboration.
At the motion for new trial hearing, Simmons‘s trial counsel testified that she believed the pattern instruction, as given, was required and that it was in Simmons‘s best interest for the jury to hear that his admissions alone could not be used to convict him. Moreover, as discussed in Division 2 (a) above, the trial court did not err in giving this jury instruction. Thus, trial counsel was not deficient in failing to object. See Durrence v. State, 287 Ga. 213, 218 (2) (a) (695 SE2d 227) (2010) (“Counsel‘s failure to make a meritless objection does not constitute deficient performance.“).
b. Simmons further asserts that trial counsel rendered ineffective assistance by failing to object to the jury charge regarding Simmons‘s flight.
Although we explained in Division 2 (b) that the trial court erred in instructing the jury on Simmons‘s flight, we also concluded that Simmons failed to show how this instruction “affected the outcome of the trial court proceedings.” Kelly, 290 Ga. at 33 (2) (a). Accordingly, this enumeration also fails. See State v. Newman, 305 Ga. 792, 798 (2) (b) (827 SE2d 678) (2019) (explaining that where “no harm has come from trial court‘s error to give a specific charge, trial counsel could not have been ineffective for failing to request such a charge“); Hampton v. State, 302 Ga. 166, 168-69 (2) (805 SE2d 902) (2017) (equating the prejudice prong of the plain error test with the prejudice prong for an ineffective assistance claim).
c. Simmons next contends that trial counsel rendered ineffective assistance in failing to adequately investigate his case.
At the motion for new trial hearing, Simmons claimed that he gave counsel names of potential witnesses and that trial counsel did not pursue those leads. However, trial counsel also testified at the hearing and explained that Simmons did not provide contact information for these potential witnesses, which Simmons admitted, arguing that it was the investigator‘s job to locate these people and not his. Trial counsel further testified that the potential witnesses were mostly gang members who lived a “transient lifestyle” and that she received threatening phone calls from some of these people, which the GBI took seriously. The trial court, as finder of fact in a motion for new trial hearing, was entitled to credit trial counsel‘s testimony as to her efforts to investigate Simmons‘s case. See Gray v. State, 309 Ga. 850, 855 (2) (b) (848 SE2d 870) (2020) (“[T]he credibility of the witnesses at the motion for new trial hearing was for the trial court to determine[.]“). Also, Simmons failed to make a proffer as to what an additional investigation would have uncovered or what the testimony of the uncalled witnesses would have been and therefore has failed to establish that the trial outcome would have likely been different with the additional information. See Barge v. State, 294 Ga. 567, 569 (2) (755 SE2d 166) (2014) (explaining that appellant cannot prevail on the prejudice prong of his ineffective assistance claim where he “did not proffer any uncalled witness or otherwise proffer a legally recognized substitute for such testimony” at the motion for new trial hearing). Therefore, to the extent that trial counsel was deficient, Simmons has failed to show prejudice.
4. Finally, Simmons argues that the count of aggravated assault of Tongol should have been factually merged into the count for felony murder of Lee.12
Therefore, the trial court did not err in not merging the aggravated assault of Tongol (Count 5), a separate victim, into the conviction for the felony murder of Lee. See Hulett v. State, 296 Ga. 49, 56 (2) (c) (766 SE2d 1) (2014) (“Where two victims are robbed, the defendant may be charged with, convicted of, and sentenced for the robbery of each victim.“); Henderson v. State, 285 Ga. 240, 244 (3) (675 SE2d 28) (2009) (“When the underlying felony is committed upon one victim and the felony murder charged in another count in the same indictment is committed upon another victim, the underlying felony does not merge with the felony murder conviction” and determining that trial court did not err in entering separate convictions and sentences where defendant was charged with felony murder of one victim based on armed robbery and armed robberies of other victims); George v. State, 276 Ga. 564, 565 (2) (580 SE2d 238) (2003) (malice murder and aggravated assault counts do not merge where murder was committed upon one victim and the aggravated assault was committed upon a different victim).
Judgment affirmed. All the Justices concur.