Anthony Terrell Smith appeals his convictions and sentences for malice murder, aggravated assault, and possession of a weapon at a public gathering, which were in connection with the shooting death of Romondez Lashan Lester. For the reasons that follow, we affirm.
Stephens, a friend of Smith’s, was outside the club; he had a .22 caliber revolver. Several people were fighting, and Smith was fighting with Lester; Smith took Stephens’s revolver. The fight continued, and Lester struck Smith and taunted him. Smith pointed the revolver at Lester who continued to taunt him. Smith pulled the trigger of the revolver multiple times; it failed to fire at least twice, and fired twice. Lester was fatally struck in the chest. Smith, Stephens, and some other people ran from the scene, and Smith gave the revolver to Johnny Laney, who removed the cylinder, hiding it and the remainder of the revolver in separate places.
1. The evidence authorized the jury to find Smith guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia,
2. During direct examination of a crime scene investigator, Special Agent Davis of the Georgia Bureau of Investigation, the State asked numerous questions regarding the parking area outside the club. The trial court asked the State, “are you going to tie in how this is relevant to the issues in this case pretty soon?” The State answered that it was “just trying to project to the jury the general size and location of the properties.” The court responded:
Okay. Because my experience is that Special Agent Davis is a very thorough investigator, and I don’t think that everything he found that day is relevant to the issues of this case, and I don’t want to have to require him to testify about everything he learned. I’d like for you just to kind of narrow it to those things that he learned that really bear on the issues in this case.
The State answered, “I will, your honor,” and proceeded to ask Davis about items found at the crime scene. Smith contends that the court’s statement that “Special Agent Davis is a very thorough investigator” constituted an opinion on the veracity of a witness, and thus an expression as to what might be proved by the evidence, in violation of OCGA § 17-8-57.
“The rule set forth in OCGA § 17-8-57 does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence.” Paslay v. State,
That is what occurred here. The trial court “exercised its judgment and discretion by stopping the testimony and explaining his ruling to [prosecuting] counsel. [Cit.]” Ridley v. State,
3. The trial court instructed the jury on resolution of conflicts in testimony, tracking the Georgia pattern jury instructions. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.31.20 (4th ed. 2007).
The trial court did not err in charging the jury that it should attempt to reconcile conflicting testimony without ascribing false statements to any witness, but that, if it cannot do that, it must determine which witnesses are best entitled to be believed and which are not. [Cit.] The charge was not a “presumption of truthfulness” charge. [Cit.]
Guyton v. State,
4. Smith contends that his trial counsel failed to provide effective representation. In order to prevail on this claim, Smith must show both that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense. Smith v. Francis,
(a) Smith contends that his trial counsel had a conflict of interest because he represented another defendant on charges arising from the same events. See Ellis v. State,
(b) Smith also contends that counsel was ineffective for insufficiently cross-examining State’s witness Stephens, who had been indicted with Smith, specifically asserting that counsel should have questioned Stephens about the deal he gained and the sentence he thereby avoided. However, on cross-examination, counsel did elicit from Stephens testimony that he was charged with Lester’s murder, but that after Stephens gave a statement, “those charges were dropped.” In any event, Smith fails to establish any prejudice as to counsel’s cross-examination of Stephens; he presents no evidence of what testimony Stephens would have given had trial counsel questioned Stephens further in the manner Smith now contends should have been done. See Jimmerson v. State,
(c) Smith also contends that counsel was ineffective for failing to object when the trial court said that “Special Agent Davis is a very thorough investigator.” However, as noted above, see Division 2, supra, the trial court’s comment did not violate OCGA § 17-8-57.
5. Finally, Smith argues that the delay between his September 2001 trial and the April 2011 order which denied his motion for new trial violated his rights to due process.
This Court has addressed the proper resolution of claims asserting due process violations based on inordinate appellate delay, and determined that the appropriate analysis is application of the four speedy trial factors set forth in Barker v. Wingo,407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972), which are the length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. Chatman v. Mandil,280 Ga. 253 , 256 (2) (a) (626 SE2d 102 ) (2006).
Browning v. State,
Although the over-nine-year delay is lengthy, Smith advances, at most, cursory arguments regarding the four factors. To the extent that he states a reason for the delay, he intimates that it was the fault of various appellate counsel, but he has produced no evidence of this. See Payne v. State,
The prejudice necessary to establish a due process violation based on post-conviction direct appeal delay is prejudice to the ability of the defendant to assert his arguments on appeal and, should it be established that the appeal was prejudiced, whether the delay prejudiced the defendant’s defenses in the event of retrial or resentencing. Appellate delay is prejudicial when there is a reasonable probability that, but for the delay, the result of the appeal would have been different.
Whitaker v. State,
Although Smith states that appellate counsel had to “reconstruct the case,” appellate counsel will always have to familiarize himself with the case when he is not the same attorney who represented the defendant at trial. The only particularized assertion of prejudice that Smith makes is that “[d]ue to the passage of time . . . [trial counsel] did not
Judgments affirmed.
Notes
The crimes occurred on June 4, 2000. On July 25, 2000, a Sumter County grand jury indicted Smith and Elliot Stephens for malice murder, felony murder while in the commission of aggravated assault, aggravated assault, and possession of a weapon at a public gathering; Stephens was also indicted for possession of a firearm by a convicted felon. Smith was tried alone before a jury September 18-20, 2001, and found guilty of all charges. On September 25, 2001, he was sentenced to life in prison for malice murder, and a concurrent term of twelve months in prison for possession of a weapon at a public gathering; the remaining counts merged with the malice murder or were vacated by operation of law. See Malcolm, v. State,
OCGA § 17-8-57 reads:
It is error for any judge in any criminal case, during its progress or in Ms charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to he error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.
During the hearing on the motion for new trial, trial counsel testified that he had no recollection of representing anyone named Anthony Jackson in any matter associated with the killing of Lester. Counsel also testified that, in the event that he found himself appointed to represent co-defendants, he would have raised the matter of a potential conflict with the trial court.
The clerk responded on March 5,2008, informing him of the pending motion for new trial filed on October 17,2001, and suggesting that he contact the attorney who filed it. The clerk sent a copy of the letter to the Office of the Circuit Public Defender.