STRIPLING v. THE STATE; BREWER v. THE STATE
S18A0176. S18A0277.
Supreme Court of Georgia
June 29, 2018
304 Ga. 131
NAHMIAS, Justice.
FINAL COPY. Murdеr. Fulton Superior Court. Before Judge Ellerbe.
NAHMIAS, Justice.
Appellants Tshombe Stripling and Elijah Brewer were convicted of malice murder and other crimes in connection with the shooting death of Khaseim Walton. On appeal, Stripling contends only that the trial court committed plain error by not instructing the jury on the need for accomplice testimony to be corroborated. Brewer contends that the evidence was insufficient to sustain his conviction for criminal street gang activity and that his trial cоunsel provided ineffective assistance by failing to call an expert on the
1. (a) Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. Walton was a cocaine dealer. Shortly before 9:00 p.m. on November 25, 2013, he drove one of his clients, Gloria Traylor, to a rooming house in the Oakland City area of Atlanta to show her a room that he was plаnning to rent as a place at which he could sell drugs. As they approached the house, Traylor saw a man she knew as “Chalee” standing outside near a vehicle that looked like a Suburban or a truck. At trial, Traylor identified Talib Smith as Chalee. A short time later, when Walton and Traylor were backing up to leave the house, a man got out of the Suburban-like vehicle, approached the driver‘s side of Walton‘s car, and asked to buy some drugs. After Walton prepared the cocaine, there was a struggle between him and the man standing outside the car. Traylor then saw three guns pointed in the driver‘s side window; she heard shots and ducked down. Walton drove into a pole, and Traylor got out of the car screaming. Walton had been shot four times; he died from his injuries soon after he arrived at the hospital. Traylor could not identify the man who asked to buy drugs or any of the people holding the guns.
Paul Whibbey, the manager of the rooming house, looked out his window when he heard a commotion аround the time of the shooting. He saw four individuals walking toward Walton‘s car from a black SUV. Whibbey testified that one had short dreadlocks and another had well-kept dreadlocks. At the time of the shooting, Stripling and Talib had twists or dreadlocks; Brewer did not have dreadlocks. Whibbey heard the people saying “get this, get that, get his money.” He saw the man with the well-kept dreadlocks shoot a gun and heard eight or nine shots. Then the four individuals got back in the SUV and left. After the shooting, Whibbey was interviewed by Detective Kevin Lеonpacher of the Atlanta Police Department, and he identified Neddrick Smith from a photo lineup as the shooter.
Neddrick, who had dreadlocks, was arrested and interviewed by the police. He denied any involvement in the shooting. He said that he had driven his Kia sedan to the rooming house that day with his brothers, Nemiyas and Nierris Smith, and Monquel Yancey to buy a heater from someone who lived there, but he had driven away from the house and
Nemiyas and Nierris also were interviewed by Detective Leonpacher, and their interviews were played for the jury after the two brothers testified and said that they did not remember most of what they had said in their interviews. Nemiyas told the detective that when he was outside the rooming house with Neddrick, Nierris, and Yancey bеfore the shooting, he saw Knuckles (Stripling‘s nickname), Tommy Gunz (Brewer‘s nickname), Talib, Katrina Shardow, and someone named Pat pull up in a black Jeep and Talib get out. Nemiyas said that all of those people were members of the Bloods gang.2 Nierris similarly told Detective Leonpacher that he saw five people in a Jeep, including Talib, “Shombe,” “Elijah,” and a woman; Nierris identified Tshombe Stripling in a photo lineup as being in the Jeep, but did not identify Elijah Brewer in a lineup. About a week before the murder, Shardow had rented a black Jeep Cherokee SUV. Three weeks after the murder, she reported the SUV stolen; the police found it on fire a few minutes later.
Eleven shell casings were found at the scene of Walton‘s shooting, and ballistics testing showed that they were fired from at least three and as many as five different .45-caliber guns. One set of shell casings matched casings left by the gun Stripling used in a different shooting nine days after the murder.3 A cell phone that belonged to Brewer was found in a driveway at the scene. Brewer told his girlfriend that he had dropped the phone when there was a shooting and he ran. Cell phone records showed that Brewer, Stripling, and Talib were in frequent contact and near each other on the day of the shooting, including in Oakland City. About 30 minutes after the shooting, Stripling‘s phone called Neddrick‘s phone; Neddrick told Detective Leonpacher that this call was from Talib using Stripling‘s phone.
Stripling did not testify at trial, but Detective Leonpacher testified that Stripling had admitted to him in an interview that Stripling was a member of the Bloods. Stripling claimed that he was in a different part of town around the time of the murder, but his cell phone records did not support that assertion. Brewer testified at trial that he was a member of the Nine Trey Bloods and was part of a group that committed credit card fraud for the gang. He also said that Shardow was a member of the gang and Talib was affiliated with the gang. Brewer claimed that earlier on the day of the murder he had been with Talib, Shardow, and others in the black Jeep SUV later seen at the rooming house, but at the time of the shooting he was at a recording studio in a different area of town. Brewer said that he had taken his cell phone to the studio but at some point that night noticed that it was gone; he suspected that someone took it. Although there were three text messages sent from and five messages received by Brewer‘s phone in the minutes leading up to the shooting, Brewer claimed that after he lost his phone, he sent text messages using an application on the phone called AirDroid, which lets the user take remote control of the phone and send texts through it without actually possessing it.
(b) Brewer argues that this evidence was legally insufficient under Jackson v. Virginia, 443 U. S. 307 (99 S Ct 2781, 61 LE2d 560) (1979), to sustain his conviction for participation in criminal street gang activity, because the evidence did not show a nexus between the alleged criminal acts and gang activity. Brewer was charged with participating in criminal gang activity, in viоlation of
Brewer admitted that he was a member of the Nine Trey Bloods gang and that he had participated in other criminal activity for the gang. Testimony from Brewer and Detective Leonpacher showed that each of Brewer‘s co-defendants was in or affiliated with the gang. A gang expert testified that the gang makes most of its money through armed robberies, including robberies of drug dealers like Walton. Other testimony indicated that Walton was seeking to establish a permanent place of business for drug dealing in the Oakland City area, which is where Brewer‘s gang operates. As a whole, this evidence was sufficient to establish a nexus betwеen the crimes against Walton and an intent to further the interests of the Nine Trey Bloods. See Hayes v. State, 298 Ga. 339, 343 (781 SE2d 777) (2016). Furthermore, when viewed in the light most favorable to the verdicts, the evidence was sufficient to authorize a rational jury to find beyond a reasonable doubt that Brewer and Stripling participated in the aggravated assault, attempted armed robbery, and murder of Walton. See Jackson, 443 U. S. at 319. See also
(c) Although Brewer and Stripling do not dispute the sufficiency of the evidence supporting their other convictions, we have reviewed the record and conclude that the evidence presented at trial and summarized above was also sufficient to authorize a rational jury to find the appellants guilty beyond a reasonable dоubt of those crimes.
2. Stripling‘s only contention on appeal is that the trial court committed plain error by failing to instruct the jury under
Because Stripling did not request this instruction at trial,
his claim is reviewed on appeal only for plain error, meaning that we will reverse the trial court only if the [alleged] instructional error was not affirmatively waived . . . , was obvious beyond reasonable dispute, likely affected the outcome of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings.
Saffold v. State, 298 Ga. 643, 650 (784 SE2d 365) (2016) (citation and punctuation omitted). See also
A jury instruction on the need for accomplice corroboration should be given if there is “slight evidence to support the сharge.” Hamm v. State, 294 Ga. 791, 794 (756 SE2d 507) (2014). An accomplice is someone who shares a common criminal intent with the actual perpetrator of a crime. See Williams v. State, 289 Ga. 672, 673 (715 SE2d 76) (2011). See also
The evidence showed that Neddrick, Nemiyas, and Nierris were in and around one vehicle (a sedan) around the time of the shooting, while Stripling and his co-defendants were in and around another vehicle (an SUV). There was no evidence that Neddrick, Nemiyаs, or Nierris committed the crimes charged with Stripling and any of his co-defendants.6 Based on the evidence presented at trial, if Neddrick, Nemiyas, and Nierris committed the crimes, they would be guilty and Stripling would be completely innocent. Stripling cites no precedent requiring an accomplice corroboration instruction under similar circumstances. Accordingly, the trial court did not commit plain error in not giving that charge. See Simmons v. State, 299 Ga. 370, 374 (788 SE2d 494) (2016) (“‘[A]n error is plain if it is clear or obvious under current law. An error cannot be plain where there is no controlling authority on point . . . .‘” (citation omitted)). See also Coleman v. State, 227 Ga. 769, 770 (183 SE2d 379) (1971).7
3. Other than the sufficiency of the evidence claim discussed in Division 1 (b) above, Brewer‘s only contention on appeal is that his trial counsel provided ineffective assistance by failing to call an expert to testify that text messages can be sent from a smartphone remotely using the application AirDroid.
(a) As the summary of the evidence in Division 1 (a) above indicates, the finding of Brewer‘s сell phone at the crime scene was an important component of the proof that he was a participant in the crimes. The State argued that the jury should infer that Brewer was in possession of his phone at the crime scene, an inference strengthened by the evidence that there were three text messages sent from the phone in the minutes before the shooting. According to Brewer, however, he could have sent those three messages using the application AirDroid, which allows a user to remotely control a smartphone.
Brewer decided to testify at trial. On direct examination, he admitted that he smoked marijuana, was a member of the Nine Trey Bloods, and had been involved in a credit card fraud scheme for the gang. Brewer‘s counsel also questioned him about AirDroid. Brewer explained that he could use another electronic device to connect to AirDroid and then make calls and send text
At the motion for new trial hearing, Brewer‘s appellate counsel called Stuart Smith, an expert in Android application coding and functionality. Consistent with Brewer‘s testimony at trial, Smith testified that the AirDroid application allows a smartphone to be controlled remotely and that the user can send text messages from the phone without being in possession of the phone, unlike the iCloud-type applications about which Detective Leonpacher and the phone company employees had testified. Smith acknowledged, however, that he could not say whether Brewer was actually operating his phone remotely when the three texts at issue were sent.
(b) Brewer contends that his trial counsel‘s dеcision to rely on him to explain AirDroid to the jury, rather than calling an expert like Smith, deprived him of the effective assistance of counsel. To prove such an ineffective assistance claim, an appellant must prove both that his counsel‘s performance was professionally deficient and that, but for the unprofessional performance, there is a reasonable probability that the outcome of the proceeding would have been different. See Strickland v. Washington, 466 U. S. 668, 687, 694 (104 SCt 2052, 80 LE2d 674) (1984). We need not review both elements of this test if the appellant fails to prove one of them. See Matthews v. State, 301 Ga. 286, 288 (800 SE2d 533) (2017).
It is well established that the decision as to which defense witnesses to call is a matter of trial strategy and tactics. And tactical errors in that regard will not constitute ineffective assistance of counsel unless those errors are unreasonable ones no competent attorney would have made under similar circumstances. . . . Moreover, [a] fair assessment of attorney рerformance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time.
Brown v. State, 292 Ga. 454, 456-457 (738 SE2d 591) (2013) (citation and punctuation omitted).
The decision by Brewer‘s trial counsel not to call an AirDroid expert was not so unreasonable that no competent attorney would have made it under the circumstances. Trial counsel testified at the motion for new trial thаt he thought Brewer was a strong witness and could effectively explain AirDroid, which Brewer did; Brewer‘s testimony at trial was consistent with Smith‘s testimony at the motion for new trial hearing and conveyed to the jury the essential point that text messages he sent using AirDroid would actually be sent from his phone, not just from the Internet. Brewer asserts that the jury would not have believed his description of AirDroid because his admission of past drug use and criminal activity with the gang undermined his credibility. Trial counsel, however, explained that he believed that if Brewer admitted his past involvement in non-violent crimes on direct examination, the jury would see that Brewer was not the “muscle” of the gang and would perceive him as honest for admitting to such conduct. This was not an
Brewer also argues that an expert was required to rebut the testimony of the detective and the рhone company witnesses that applications like iCloud merely allow users to send messages over the Internet. However, the testimony of the State‘s witnesses did not contradict Brewer‘s testimony. Those witnesses spoke in generalities about applications they knew about. Detective Leonpacher was the only witness Brewer asked about AirDroid, and the detective said he had not heard of that application. Thus, the testimony of all three witnesses left open the possibility that a different application — one with which they were not familiar, but Brewer was — allowed remote control of Brewer‘s phone. Brewer‘s counsel also challenged the State‘s theory by cross-examining a crime scene technician about her failure to find the cell phone initially — she had to be called back to the scene to collect it — and cross-examining Detective Leonpacher about the delay in finding the phone and the failure to test it for fingerprints.
Undеr these circumstances, considered without the distorting effects of hindsight, trial counsel‘s decision not to call an AirDroid expert was not patently unreasonable, and Brewer‘s ineffective assistance claim therefore fails. See Matthews, 301 Ga. at 289; Simpson v. State, 289 Ga. 685, 689-690 (715 SE2d 142) (2011).
Judgments affirmed. All the Justices concur.
Decided June 29, 2018.
Murder. Fulton Superior Court. Before Judge Ellerbe.
Michael W. Tarleton, for appellant (case no. S18A0176).
Steven E. Phillips, for appellant (case no. S18A0277).
Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Arthur C. Walton, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Aimee F. Sobhani, Assistant Attorney General, for appellee.