S19A0936. SMITH v. THE STATE. S19A0937. JACKSON v. THE STATE.
S19A0936, S19A0937
Supreme Court of Georgia
October 7, 2019
Reconsideration denied November 4, 2019
307 Ga. 263
BETHEL, Justice.
1. Evidence Presented at Trial.
Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. On August 20, 2016, around 8:00 p.m., Ebony Washington, Stephanie Smith, Rasheeda Bostic, and Theresa Goldwire were riding together in Savannah in Washington‘s vehicle, a black SUV. Washington drove the car, Stephanie Smith sat in the front passenger seat, Bostic sat behind Stephanie Smith, and Goldwire sat behind Washington. As Washington drove the car down Jefferson Street past 35th Street, she was having a heated conversation on the phone.
The car came to a stop in the middle of the street at the intersection of Victory Drive and Barnard Street, several blocks from where the shooting began. Goldwire then called 911. The car‘s entire rear window was shot out. Stephanie Smith suffered a gunshot wound to the back of her head and slumped over in the front passenger seat. Bostic suffered a gunshot wound to her back, which broke three of her ribs. Bostic survived her injuries, but Stephanie Smith died four days later. The medical examiner
Officers were dispatched to the intersection of Jefferson Street and 31st Street based on ShotSpotter technology that had been deployed in that area. ShotSpotter operates through a series of microphones that alert law enforcement to the presence of gunshots and triangulate the location of the shots, allowing police to respond even in the absence of a 911 call. ShotSpotter detected gunshots at the intersection at approximately 8:07 p.m. on August 20, 2016. Upon arrival at the scene, law enforcement officers recovered 29 nine-millimeter shell casings from the intersection.
At 2:25 the next morning, law enforcement officers obtained a search warrant for a residence located at 302 West 32nd Street, which was part of a duplex on the corner of 32nd Street and Jefferson Street. Deonshae Campbell and Dionysha Hearns, who are sisters, resided at the home with their mother. While searching the home around 3:30 a.m., officers found a plastic bag with two nine-
Campbell and Hearns grew up with Jackson, whom they knew as “Tyler,” “Light Bright,” and “Bright Eyes,” and Smith, whom they knew as “NaNa” and “Slim.” Smith and Jackson are brothers. At the time of the shootings, Smith lived around the corner from Campbell and Hearns on 33rd Street. In the weeks following the shooting, Campbell and Hearns were both questioned by police. They told
Campbell and Hearns were both subpoenaed as witnesses by the State, but they initially refused to appear at trial. The trial court issued warrants for their arrest, and they were brought to court by their mother and grandmother.
Early in Campbell‘s appearance at trial, she testified that both Smith and Jackson ran into the house at 302 West 32nd Street after the shooting. However, she quickly became uncooperative during the State‘s examination of her, at one point pulling the hood of her sweatshirt over her head while being questioned about her previous identification of Smith and Jackson in photographic lineups presented to her by law enforcement.2 The trial court then
Hearns was also called to testify at trial. She refused to identify Smith and Jackson by their given names, and the trial court declared her a hostile witness. Her testimony continued, but she claimed not to recall seeing anything outside the house at 302 West 32nd Street when the shooting occurred. Like Campbell, Hearns gave an interview to law enforcement that was video recorded. When Hearns could not recall seeing anything outside the house, the prosecutor said, “I‘d like to refresh the witness‘s recollection at this time, Judge, with her video statement to the police.” At the trial court‘s direction, the State proceeded to play for the jury the interview Hearns gave to law enforcement. Neither Smith nor Jackson objected.
In her recorded interview, Hearns told the detectives that, after the shooting, several people ran into the house, including “Tyler” and “NaNa.” She indicated that she could identify both of
Hearns stated that she knew NaNa and Tyler were the shooters at the street corner because “they already said — was plotting to do it back once they — because they — NaNa said I got a feeling they was going to come back.” Hearns indicated that NaNa and Tyler were plotting about the black car returning to the neighborhood because some men had fired at them from the car three weeks before. She stated that NaNa had recently been robbed by some men and that “he robbed them back.” Hearns indicated that the shooting incident outside her house was a response to NaNa‘s robbery. Hearns also said that NaNa had said that the person he robbed had said that when he saw NaNa he was going to kill him. NaNa also learned that he had a “hit” on him. At the conclusion of the video, Hearns resumed her live testimony and confirmed that
When viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find both Smith and Jackson guilty beyond a reasonable doubt of the crimes of which they were convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979). See also Brown v. State, 302 Ga. 454, 456 (1) (b) (807 SE2d 369) (2017) (“It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” (citation and punctuation omitted)); Cowart v. State, 294 Ga. 333, 343 (6) (751 SE2d 399) (2013) (explaining that, in determining the sufficiency of the evidence, a reviewing court “must consider all of the evidence admitted by the
2. Playing of Witnesses’ Prior Statements.
Smith and Jackson argue that the trial court erred by allowing the State to play the recorded interviews given by Campbell and Hearns to police detectives. They both argue that the State improperly placed these recordings before the jury while purportedly attempting to refresh the witnesses’ recollection of their prior statements to police. Jackson also argues that the State did not provide a proper foundation before playing the recordings. Finally, Smith and Jackson both argue that certain statements in the recording of Campbell‘s interview impermissibly placed character evidence before the jury. We address each contention in turn.
(a) As neither Smith nor Jackson objected at trial on the basis that the recordings could not be played for the jury while purportedly being used to refresh the witnesses’ recollections, we review their claims only for plain error. See
If a witness uses a writing to refresh his or her memory while testifying, an adverse party shall be entitled to have the writing produced at the hearing or trial, to inspect it, to cross-examine the witness on such writing, and to introduce in evidence those portions of such writing which relate to the testimony of the witness.
Here, pretermitting whether the trial court clearly erred by permitting the State to play these recordings for the jury while purportedly offering them to refresh the witnesses’ recollection,5 and pretermitting whether any such error was affirmatively waived,
(b) Jackson also argues that the trial court erred by permitting the recordings to be played for the jury and admitted into evidence without requiring the State to provide a foundation for such recordings. Because Jackson did not make this objection at trial, we review only for plain error.
(c) Smith and Jackson also argue that the trial court erred by allowing the State to play the recording of Campbell‘s interview6 because it contained evidence that should have been excluded under
Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive[.] The prosecution in a criminal proceeding shall provide reasonable notice to the defense in advance of trial, unless pretrial notice is excused by the court upon good cause shown, of the general nature of any such evidence it intends to introduce at trial. Notice shall not be required when the evidence of prior crimes, wrongs, or acts is offered to prove the circumstances immediately surrounding the charged crime, motive, or prior difficulties between the accused and the alleged victim.
At trial, counsel for Smith and Jackson argued to the trial court that the State never made any connection between the defendants’ alleged prior acts of using and selling drugs on the street corner, as recounted in Campbell‘s interview, and the shooting incident that is the subject of this case. Over trial counsels’ objection, the trial court determined that Campbell‘s statements were admissible pursuant to Rule 404 (b) to show Smith‘s and Jackson‘s motive in the case.
Setting aside whether such statements were admissible as evidence of motive under Rule 404 (b), the statements regarding the
The limitations and prohibition on other acts evidence set out in
OCGA § 24-4-404 (b) do not apply to intrinsic evidence. . . . Evidence is . . . intrinsic . . . when it is (1) an uncharged offense arising from the same transaction or series of transactions as the charged offense; (2) necessary to complete the story of the crime; or (3) inextricably intertwined with the evidence regarding the charged offense. . . . [E]vidence pertaining to the chain of events explaining the context, motive, and set-up of the crime is properly admitted if it is linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury. . . . [E]vidence of other acts is inextricably intertwined with the evidence regarding the charged offense if it forms an integral and natural part of the witness‘s accounts of the circumstances surrounding the offenses for which the defendant was indicted. And this sort of intrinsic evidence remains admissible even if it incidentally places the defendant‘s character at issue.
(Citations and punctuation omitted.) Williams v. State, 302 Ga. 474, 485-486 (IV) (d) (807 SE2d 350) (2017).
Here, Campbell made a number of statements regarding drug use and possible drug sales by Smith and Jackson on the street corner outside the house where she and Hearns lived. These
Moreover, the State‘s theory of the case, as outlined in its opening statement and its closing argument, was that the shootings of Stephanie Smith and Rasheeda Bostic were the culmination of a series of drug-related robberies back and forth between defendants Smith and Jackson and persons who had been seen driving Ebony Washington‘s vehicle (which Hearns referred to as “the black car“). Campbell‘s statements that Smith and Jackson had previously been seen using and (perhaps) selling drugs on the street corner where the shooting occurred advanced this theory of the case and were
Intrinsic evidence must also satisfy
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury
or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The exclusion of relevant evidence under Rule 403 is an extraordinary remedy that trial courts should grant only sparingly. See Hood v. State, 299 Ga. 95, 102 (4) (786 SE2d 648) (2016). See also id. at 103 (4) (“The major function of Rule 403 is to exclude matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.” (citation and punctuation omitted)).
Here, the State had some need for this evidence. The history of robberies and shootings back and forth between Smith, Jackson, and persons who had been seen driving the “black car” was established primarily through Hearns’ recorded interview. But Campbell‘s recorded statements regarding the use and possible sale of drugs on the street corner by Smith and Jackson gave further context as to why this series of incidents occurred and why Smith and Jackson would have been present at the street corner and would have shot at the car when it returned to the neighborhood. See Thompson, 302 Ga. at 543 (III) (B). Moreover, Campbell‘s interview established that their acts of using and possibly selling drugs were ongoing. Campbell suggested in her interview that Smith and Jackson were “out there every day” and that one of them had been selling drugs on the corner for “months.” Thus, evidence that Smith and Jackson had used and possibly sold drugs on the street corner was connected in time with the series of incidents leading up to the shootings of Stephanie Smith and Rasheeda Bostic and was “not so remote as to be lacking in evidentiary value.” (Citation and punctuation omitted.) Kirby v. State, 304 Ga. 472, 484 (4) (a) (i) (819 SE2d 468) (2018). Thus, in light of the circumstances outlined above, although Campbell‘s statements incidentally placed Smith‘s and Jackson‘s character at issue, the probative value of those statements was not substantially outweighed by the danger of unfair prejudice. Williams, 302 Ga. at 487 (IV) (d).
Because Campbell‘s statements were admissible as intrinsic evidence and because the probative value of such evidence was not substantially outweighed by the danger of unfair prejudice to Smith
3. Claims of Ineffective Assistance of Counsel.
Smith and Jackson argue that their respective trial attorneys were ineffective for failing to make certain objections to the State‘s playing of the recorded statements of Hearns and Campbell. Smith also argues that he received ineffective assistance due to his trial counsel‘s failure to object to certain comments made by the State during opening statements. To prevail on their claims of ineffectiveness, Smith and Jackson
[have] the burden of proving both that the performance of [their lawyers] was professionally deficient and that [they were] prejudiced as a result. To prove deficient performance, [Smith and Jackson] must show that . . . 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, [Smith and Jackson] 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.
(Citations and punctuation omitted.) Stuckey v. State, 301 Ga. 767, 771 (2) (804 SE2d 76) (2017) (citing Strickland v. Washington, 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984)).
(a) Smith and Jackson first argue that they received ineffective assistance due to their attorneys’ failure to object to the State‘s playing of the recorded interviews for the purpose of refreshing the witnesses’ recollection. Smith also argues that he received ineffective assistance of counsel because his counsel did not object to the lack of foundation provided by the State prior to the recordings being played for the jury. However, for the same reasons that we concluded that Smith and Jackson could not carry their burden to show prejudice on plainerror review regarding their counsels’ failure to object to the admission of the recordings on these bases, we conclude that they cannot carry their burden to show prejudice on these ineffectiveness claims. Hampton v. State, 302 Ga. 166, 172 (4) (b) (805 SE2d 902) (2017). Any objection to the recordings under Rule 612 (a) and Rule 901 (a) could have been readily overcome by the State, as discussed above. See Davis, 306 Ga. at 149 (3) (h). Thus, as there is no reasonable probability that
(b) Smith alone also argues that he received ineffective assistance due to his trial counsel‘s failure to object to comments made by the State during its opening statement regarding what it expected Smith‘s and Jackson‘s defense to be. Near the conclusion of the State‘s opening statement, the prosecutor told the jury the following:
I suspect the defense, I can‘t speak for them, will be to put the whole thing on Ebony Washington and say along the lines of, we were just defending ourselves when we started this — that she started this. Which is to say to get back to the prior difficulty and we see the car and we‘re scared for our lives. I don‘t know what the argument‘s going to be. I suspect, in trying cases with [Jackson‘s trial counsel] before, that might be what you hear.
At the joint hearing on Smith‘s and Jackson‘s motions for new trial, Smith‘s trial counsel, an attorney with 22 years of criminal defense experience, was called to testify. In his testimony about this portion of the State‘s opening statement, he stated that, when the statement was made, he believed counsel for the State referred
Assuming that this statement violates the rule we established in Parker v. State, 277 Ga. 439, 439-442 (588 SE2d 683) (2003), to the effect that “it is inappropriate for a prosecutor in a criminal case to discuss in opening statement the evidence she anticipates the defense will present at trial,” id. at 441 (2), and assuming that Smith‘s trial counsel was deficient in failing to object to the comment, Smith has failed to show he was prejudiced. Smith‘s counsel testified at the hearing on the motions for new trial that he used the State‘s comment to later show, in closing argument, that Smith was not required to prove anything and that the burden of proof was solely with the State. Additionally, the jury was instructed as to the State‘s burden of proof and that opening statements are not evidence. See Kidd v. State, 304 Ga. 543, 545 (2) (820 SE2d 46) (2018) (holding that jury instruction that opening statements are not evidence mitigates harm from improper comment by prosecutor
(c) Finally, we consider the cumulative effect of prejudice resulting from counsels’ allegedly deficient performance. 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
Judgment affirmed. All the Justices concur.
DECIDED OCTOBER 7, 2019 — RECONSIDERATION DENIED NOVEMBER
Murder. Chatham Superior Court. Before Judge Abbot.
Robert L. Persse, for appellant (case no. S19A0936).
David T. Lock, for appellant (case no. S19A0937).
Meg E. Heap, District Attorney, Jennifer L. Parker, Greg McConnell, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Elizabeth H. Brock, Assistant Attorney General, for appellee.