Smith v. StateSmith v. State
Omari Smith was convicted of felony murder and other crimes in connection with the shooting death of T‘Shanerka Smith (who was not related to Omari Smith).1 On appeal, Smith contends that the
1. In this Court‘s opinion affirming the convictions of Smith‘s co-defendant Walter, we summarized the evidence presented at Smith, Walter, and Neloms‘s joint trial. Viewed in the light most favorable to the verdicts, that evidence showed the following:
The victim‘s death can be traced to a dispute between her brother (Eddie Edwards) and a group that included Walter, Darron Cato, Omari Smith, Andrew Neloms, and Derek McCarter. Edwards lived at the
Fulton County apartment complex where he performed maintenance, while McCarter was squatting in another unit at the complex. The night before the shooting, McCarter, Walter, and others gathered to party in that apartment. The next day, Edwards arrived at the unit and began removing the locks from the doors, telling McCarter and Cato that they needed to leave. Walter became involved in the discussion; he had a firearm and picked up another that had been on a couch. After Edwards returned to his own apartment, a group of four men drove up in a car, and Walter began shooting through one of the backseat windows at a group of Edwards‘s cousins gathered outside Edwards‘s apartment. No one was injured by the shooting. After the shooting, Edwards and a cousin found McCarter and beat him up.
Walter and his friends left the apartment complex but returned later that day to retaliate. Walter‘s girlfriend, Angelica Mitchell, drove Walter, Cato, Neloms, and Omаri Smith to the apartment complex. Mitchell dropped off her four passengers outside the complex. Mitchell testified that she saw that at least Walter and Cato had guns when they got out of the car, but she did not know what the men were planning and proceeded directly to work after she dropped them off. Once outside the car, Walter, Cato, and Omari Smith shot in the direction of Edwards‘s apartment, where the victim had been standing on the porch. The victim was shot and was pronounced dead after being taken to a hospital.
Several eyewitnesses to the fatal shooting testified at trial. Priscilla Cofer testified that she was standing on Edwards‘s porch with the victim when she saw Mitchell drive Walter, Cato, Neloms, and Omari Smith through the neighborhood. A few minutes later, she saw Walter, Cato, and Omari Smith shooting toward the apartment.
Edwards‘s next-door neighbor, Sharyetta Thomas, and the victim‘s boyfriend, Derrick Thompson, both testified that they saw a shooter who was a light-skinned African-American man with dreadlocks, a description that matched Walter‘s appearance; Thomas also picked Walter out of a photo array “bеcause he looked like the guy that was shooting.” One of Edwards‘s neighbors, Tamika Campbell, testified that after hearing the gunshots, she saw three men running through a field, as well as a fourth man putting a gun in his pants; she picked Walter out of a photo array as the man with the gun. Two witnesses testified that Walter asked them to lie to police by saying that he was with them at the time of the shooting.
Walter v. State, 304 Ga. 760, 761-762 (822 SE2d 266) (2018).
Additional evidence implicating Smith that was not part of that summary of evidence includes the following: Cofer testified at trial that on the day of the murder, she saw Smith standing to Walter‘s right and Cato standing to Waltеr‘s left, and that all three men were “shooting” in the direction of Cofer and her friends, who had been on the porch of Edwards‘s apartment. On cross-examination, she confirmed that she was “sure” that she saw Smith shooting. Also, in the days following the shooting, Cofer identified Smith, along with each of the other defendants, out of photographic lineups as the
In addition to the direct evidence of Cofer‘s identification of Smith as a shooter, other circumstantial evidence indicated that Smith participatеd in the crimes. For example, Walter‘s sister testified that shortly after the time of the shooting, Smith and Cato came to her house, which was near Edwards‘s apartment complex. According to Walter‘s sister, Smith and Cato appeared to be out of breath, as if they had been running. She also noted that Cato looked scared, “like he seen a ghost“; that Smith changed his shirt; and that neither was willing to say where Walter was.
In his first enumeration of error, Smith contends that the evidence adduced at trial was insufficient to support his convictions. Specifically, Smith argues that the “manifest weight of the evidence” showed that it was “extremely unlikely” that he committed the crimes. Smith further argues that the only evidence that he was a
When evaluating challenges to the sufficiency of the evidence, we view the evidence presented at trial in the light most favorable to the verdicts and ask whether any rational trier of fact could have found the defendant guilty beyond а reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560) (1979); Jones v. State, 304 Ga. 594, 598 (820 SE2d 696) (2018); see also
Here, Cofer testified that she personally observed Smith shooting at her and her friends. Moreover, Mitchell testified that she dropped off Smith and the other defendants together — some of them armed — shortly before the shooting; Campbell observed four men either running or possessing a firearm after the shooting; and Walter‘s sister‘s testimony about Smith‘s and Cato‘s appearance and behavior after the shooting also inculpated Smith. It was for the jury to assess the credibility of the witnesses — including Cofer — and to resolve any discrepancies in the evidence presented at trial. See Lewis v. State, 296 Ga. 259, 260-261 (765 SE2d 911) (2014) (credibility of witness who initially lied to police because shе “did not want to get involved . . . is a matter to be decided by the jury that saw and heard the testimony, not by an appellate court reviewing a
2. Smith argues that the trial court abused its discretion in summarily denying Smith‘s motion to sever. For the reasons explained below, we disagree.
As we noted in Walter, “[w]hen two or more defendants are jointly indicted for non-сapital offenses or a capital offense where the State does not seek the death penalty, ‘such defendants may be tried jointly or separately in the discretion of the trial court.‘” 304 Ga. at 762 (quoting
On appeal, Smith argues that the trial court should have granted his motion to sever because the evidence against him and agаinst Neloms was “far less compelling” than the evidence against Walter, and because both he and Neloms had a trial strategy to implicate each other as the “third” gunman who acted with Walter and Cato. As a result, Smith argues, his defense and Neloms‘s defense were so antagonistic that they were “mutually exclusive.” But we have already considered and rejected on direct appeal
Smith also argues that there was a high risk the jury might become confused and erroneously consider the evidence against any one of the co-defendants as evidence against all of them. But Smith fails to make that showing. Indeed, Smith‘s argument presumes that one of the four co-defendants must not have been a shooter, and that Smith therefore should not have stood trial with the other three co-defendants, whom he asserts were the shooters. But because the State presented evidence at trial that the co-dеfendants acted in concert,4 it was not required under the applicable law on party to a crime to show that any specific co-defendant physically possessed a weapon for that defendant to be convicted of felony murder or of the predicate offense of aggravated assault as a party to a crime. See
3. Smith argues that his trial counsel was ineffective for failing to object to the trial court‘s jury charge on conflicts in testimony, which Smith contends was misleading and highly
To prevail on a claim of ineffective assistance of counsel, a defendant generally must show that counsel‘s performance was deficient and that the deficient performance resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687-695 (104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355, 356 (689 SE2d 280) (2010). 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.” (citation and punctuation omitted) Romer v. State, 293 Ga. 339, 344 (745 SE2d 637) (2013); see also Strickland, 466 U.S. at 687-688. This requirеs a defendant to overcome the “strong presumption” that trial counsel‘s performance was adequate. Marshall v. State, 297 Ga. 445, 448 (774 SE2d 675) (2015) (citation and punctuation omitted). To satisfy the prejudice prong, a defendant must establish a reasonable probability that, in the absence of counsel‘s deficient performance, the result of the trial would have been different.
Here, Smith complains about his trial counsel‘s failure to object to the court‘s jury charge on conflicts in evidence, which was in fact the pattern jury charge at the time of Smith‘s trial in 2010:
When you consider the evidence in this case, if you find a conflict, you should settle this conflict, if you can, without believing that any witness made a false statement.
If you cannot do so, then you should believe that witness or those witnesses whom you think are best entitled to belief.
Pattern Charge 1.31.20, Suggested Pattern Jury Instructions, Volume II, Criminal Cases (4th ed. 2007). Smith argues that because neither he nor any of his co-defendants presented any witness testimony or other evidence at trial, this charge prejudiced him by effectively instructing the jury that it “should believe” at
But in Mallory v. State, 271 Ga. 150 (517 SE2d 780) (1999), this Court squarely held that a jury charge “that if there were a conflict between the testimony of witnesses, it would be the jury‘s duty to resolve that conflict if it could without imputing false statements to either witness, but that if the conflict could not be so resolved, the jury was to decide which witness to believe,” was not erroneous because it “contains no suggestion that an unimpeached witness must be believed, but merely urges the jury to attempt to reconcile conflicting testimony before considering the credibility of witnesses.” Id. at 151. Likewise, after Smith‘s trial, in a different case called Smith v. State, 292 Ga. 588 (740 SE2d 129) (2013), we again concluded that the same pattern instruction “did not require that the jury believe the testimony of any witness, whether impeached or
With respect to Smith‘s argument about the Noggle warning in the pattern jury instructions, he fails to acknowledge this Court‘s conclusion that an instruction like the one at issue here is “distinctly different from the charge disapproved in Noggle” because that charge, unlike the one at issue here and in Mallory, “established a presumption that witnesses speak the truth unless they are impeached, that is, that an unimpeached witness must be believed.” Mallory, 271 Ga. at 151; see also Smith, 292 Ga. at 590 (“The charge was not a ‘presumption of truthfulness’ charge.” (citation and punctuation omitted)); Guyton v. State, 281 Ga. 789, 791 (642 SE2d 67) (2007) (distinguishing Noggle and following Mallory); Sedlak v. State, 275 Ga. 746, 748 (571 SE2d 721) (2002) (same). And even though the entry for conflicts in evidence in the more recent editions of the Suggеsted Pattern Jury Instructions now states that “[t]here is no support for this former charge in current law” (citing Noggle, 256 Ga. at 383)6 — we cannot say that Smith‘s counsel performed in an objectively unreasonable way by failing to object to a pattern jury instruction that had been approved by controlling case law at the time of Smith‘s trial in 2010.7 See Mallory, 271 Ga. at 151 (approving charge in 1999); Guyton, 281 Ga. at 791 (approving charge in 2007); see also Rai v. State, 297 Ga. 472, 481 (775 SE2d 129) (2015) (no error in giving charge that substantially tracked the pattern jury instruction on conflicts in testimony that was “in effect at [the] time” of the defendant‘s trial in 2008). Moreover, because the change in the suggested pattern jury instructions described above is not a change in case law, which remains binding, Smith‘s
Given the existing precedent at the time of Smith‘s trial, the instruction Smith complains of now on appeal was not objectionable. And because “[d]eficient performance is not shown by counsel‘s failure to raise a meritless objection,” Evans v. State, 306 Ga. 403, 411 (831 SE2d 818) (2019) (citation and punctuation omitted),
4. Smith argues that the trial court erred in denying Smith‘s motion for a continuance of the hearing on his motion for new trial so that Smith could produce an alibi witness, Kristen Allen, to testify at that hearing. In the alternative, Smith argues that his counsel was constitutionally ineffective for failing to investigate and presеnt Smith‘s alibi defense. Both arguments fail.
In all applications for continuances upon the ground of the absence of a witness, it shall be shown to the court that the witness is absent; that he has been subpoenaed; that he does not reside more than 100 miles from the place of trial by the nearest practical route; that his testimony is material; that the witness is not absent by the permission, directly or indirectly, of the applicant; that the apрlicant expects he will be able to procure the testimony of the witness at the next term of the court; that the application is not made for the purpose of delay but to enable the applicant to procure the testimony of the absent witness; and the application must state the facts expected to be proved by the absent witness.
At Smith‘s motion for new trial hearing, his counsel informed the court that “there may be a third witness, Kristen Allen. . . . I have not been able to reach her today. If she does not show up, I may ask for a continuance.” When the court inquired, “have you got her under subpoena?” counsel responded, “I sent it to her by e-mail, your honor. I was not able to locate a physical address for her. . . . She is not responding to my phone calls today.” Counsel then moved for a continuance “to get Ms. Allen here,” which the trial court denied, stating “well, I‘m sоrry that she didn‘t appear. She is apparently the mother of the defendant‘s child. If she wanted to be here and testify, I believe she would have been, and you have been in touch with her and she‘s not here. . . . I‘m denying it.”
Here, the record shows that motion for new trial counsel did not properly serve a subpoena on Allen. Indeed, e-mail is not a proper means of serving a subpoena under
Moreover, Smith‘s alternative argument — that his trial counsel were ineffective for failing to investigate and present Smith‘s alibi defense that he was with Allen the day of the murder — also fails. That is because Smith‘s senior co-counsel, who sat second-chair and supervised lead counsel during the trial, testified at Smith‘s motion for new trial hearing that senior co-counsel decided not to pursue an alibi defense because “alibis that сite girlfriends don‘t work in Fulton County. . . . They don‘t work at all; they don‘t.” Senior co-counsel further testified that because there were “credible witnesses” that placed Smith at the crime scene, senior co-counsel chose to pursue “a credible argument” that Smith was merely present but “not involved in the crime.” Senior co-counsel testified that if he put forth Smith‘s alibi that he was with his girlfriend at the time of the crime, and thus argued that Smith was not even present at the crime scene, “then the jury will look at me like I‘m crazy. So I did what was best for Mr. Smith knowing
“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 assistance of counsel unless it is so unreasonable that no competent attorney would have made the decision under the circumstances.” Moss v. State, 298 Ga. 613, 619 (783 SE2d 652) (2016) (citation and punctuation omitted). Given the testimony recounted above, we cannot say that trial counsel‘s strategy in this case was so patently unreasonable that no competent attorney would have followed it. See Moss, 298 Ga. at 618-619 (trial counsel
Judgment affirmed. All the Justices concur.
Notes
The trial court sentenced Smith to life in prison on the felony murder count and a consecutive five-year sentеnce on the firearm count and merged the aggravated assault count. Smith, through trial counsel, filed a motion for new trial on November 30, 2010, and amended it on March 8, 2013. The trial court denied the motion, as amended, on June 9, 2015. On July 7, 2015, Smith, still through trial counsel, filed a notice of appeal, which was docketed in this Court on May 17, 2018. Smith v. State, Case No. S18A1240 (July 30, 2018). On June 6, 2018, Smith‘s present counsel filed a notice of substitution of counsel and moved to remand the case so he could develop allegations of ineffective assistance of trial counsel. We granted that motion “for the limited purрose of allowing an evidentiary hearing on ineffectiveness claims identified in Appellant‘s Motion to Remand.” After a hearing on remand, the trial court denied Smith‘s motion for new trial on October 31, 2018. Smith filed a motion for out-of-time appeal on February 7, 2019, which the trial court granted. Smith then appealed to this Court, and the case was orally argued on August 6, 2019.
A subpoena may be served by any sheriff, by his or her deputy, or by any other person not less than 18 years of age. Proof may be shown by return or certificate endorsed on a copy of the subрoena. Subpoenas may also be served by registered or certified mail or statutory overnight delivery, and the return receipt shall constitute prima-facie proof of service. Service upon a party may be made by serving his or her counsel of record.