Washington v. StateWashington v. State
The body of Jinwon Lee, a native of South Korea who was attending school in Georgia, was found in Mississippi a month after he disappeared from Gwinnett County, Georgia. Appellant Demetrios Washington was convicted of and sentenced for malice murder, hijacking a motor vehicle, kidnapping with bodily injury, and two counts of possession of a firearm during the commission of a felony in connection with Mr. Lee‘s disappearance and death.1 Appellant brings this appeal
1. “`(I)t is the duty of this court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.‘” Rowland v. State, 264 Ga. 872(1), 452 S.E.2d 756 (1995). Appellant timely filed a notice of appeal from the trial court‘s denial of his “out-of-time motion for new trial“; however, as is clear from the name of the pleading, appellant‘s motion for new trial was not timely filed within 30 days of the entry of conviction and imposition of sentence.
In the case at bar, the trial court, after consulting with the district attorney and appellant‘s trial counsel and with the State‘s consent, treated appellant‘s out-of-time motion for new trial as both a motion requesting permission to file an out-of-time motion for new trial and as a motion for new trial. While the trial court did not expressly grant appellant leave to file an out-of-time motion for new trial, the trial court implicitly granted such permission by expressly recognizing appellant‘s pleading as both a request to file an out-of-time motion for new trial and as a motion for new trial, by holding an evidentiary hearing on the merits of the motion for new trial, and by denying the motion for new trial on its merits. See Jordan v. State, 247 Ga.App. 551, 553, 544 S.E.2d 731 (2001). Because the trial court permitted appellant to file an out-of-time motion for new trial, we conclude we have appellate jurisdiction of the appeal and address the merits. Bohannon v. State, supra, 262 Ga. 697, 425 S.E.2d 653.
2. The State presented evidence that Mr. Lee was last seen by a friend on November 28, 1996. His car, with a stolen Mississippi license plate, a broken rear driver‘s side window, and a bloodied trunk containing a .380-caliber bullet and two .380-caliber shell casings, was discovered two weeks later in the parking lot of a Gwinnett County office complex. A month after he was last seen, Mr. Lee‘s body was found wrapped in a car cover near a pond in rural Mississippi. The Mississippi forensic pathologist who performed the autopsy testified the victim had suffered three gunshot wounds, two to the left temple and one to the chest, any one of which would have been fatal. Based on information received from a man arrested for misdemeanor violations unrelated to this case, appellant was arrested on January 7, 1997. In a videotaped interview played for the jury, appellant told officers that he and Davis, his co-indictee, had come
We take this opportunity to reiterate that the imposition of separate sentences on the convictions for malice murder and kidnapping with bodily injury is not error.2 The two crimes do not merge as a matter of law (Pryor v. State, 238 Ga. 698, 701, 234 S.E.2d 918 (1977)), and they do not merge as a matter of fact since there was no requirement that the State prove the existence of malice aforethought to establish the charge of kidnapping with bodily injury, though malice aforethought had to be proven for the murder charge, and there was no requirement that the State prove the victim was unlawfully abducted to establish the murder charge, though such unlawful abduction had to be proven to establish kidnapping with bodily injury. Potts v. State, 241 Ga. 67, 79, 243 S.E.2d 510 (1978). See also Braley v. State, 276 Ga. 47(28), 572 S.E.2d 583 (2002); High v. Zant, 250 Ga. 693(18), 300 S.E.2d 654 (1983); Waters v. State, 248 Ga. 355(11), 283 S.E.2d 238 (1981); Brown v. State, 247 Ga. 298(9), 275 S.E.2d 52 (1981); High v. State, 247 Ga. 289(12), 276 S.E.2d 5 (1981), overruled on other grounds in Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442 (1982). Any suggestion in Griffin v. State, 266 Ga. 115, 118, n. 5, 464 S.E.2d 371 (1995), and Wilson v. State, 264 Ga. 287(4)(b), 444 S.E.2d 306 (1994), that malice murder and kidnapping with bodily injury could merge as a matter of fact is disapproved.
3. Appellant contends trial counsel rendered ineffective assistance of counsel when he failed to impeach a witness using a purported prior inconsistent statement; when he did not present a defense of coercion; and when he did not call character witnesses. After presiding over a hearing on the motion for new trial at which appellant and his trial counsel testified, the trial court determined that counsel rendered effective assistance.
In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), appellant must show both that counsel‘s performance was deficient and that the deficient performance prejudiced the defense. [Cit.] There is a strong presumption that the performance of trial counsel “falls with the wide range of reasonable professional assistance....” [Cit] The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.
Stansell v. State, 270 Ga. 147, 149(2), 510 S.E.2d 292 (1998). In reviewing a lower court‘s determination of a claim of ineffective assistance of counsel, we give deference to the trial court‘s factual findings, which are upheld on appeal unless clearly erroneous; however, we review the lower court‘s legal conclusions de novo. Callendar v. State, 275 Ga. 115(3), 561 S.E.2d 113 (2002).
(a) Appellant contends trial counsel as ineffective when he failed to impeach a witness whose testimony implicated appellant in the commission of these crimes, with the fact that the witness had not mentioned in his initial statements to police the threats of physical harm to which the witness testified at trial. While not impeached on this matter
(b) Appellant maintains that a coercion defense should have been built on his testimony that he did not stop his accomplice from committing the crimes because “he did not want to put himself into a position to be threatened.” Trial counsel testified he believed a coercion defense would not be viable because appellant had never taken advantage of the several times he could have fled from his accomplice. During cross-examination, appellant admitted his accomplice had not threatened him with the gun and that he had never walked away from the criminal enterprise, despite having had a number of occasions to do so. An attorney‘s decision about which defense to present is a question of trial strategy. Brown v. State, 237 Ga.App. 231(2), 517 S.E.2d 529 (1999).
(c) Appellant testified he gave trial counsel the names of several persons who could testify to appellant‘s good character in an effort to generate reasonable doubt. Trial counsel testified he had asked appellant to compile such a list of names when it was uncertain whether the State would seek the death penalty. When the State decided not to seek the death penalty, trial counsel decided against using character witnesses because he feared such a presentation would “open the door” to the admission of appellant‘s prior criminal history and because he did not wish to present evidence and thereby lose the opportunity to present the final closing argument. The preservation of the right to the first and last closing argument, which would be lost upon the presentation of evidence by the defense, is a decision involving trial strategy. Brown v. State, 268 Ga. 354(4)(a), 490 S.E.2d 75 (1997). Whether to introduce character evidence and potentially open the door for impeachment is clearly one of tactics and strategy. Nihart v. State, 227 Ga.App. 272(1)(c), 488 S.E.2d 740 (1997).
In light of the evidence presented at the hearing on the motion for new trial, the trial court did not err when it determined that trial strategy was at the root of trial counsel‘s failure to do what appellate counsel now claims should have been done. Accordingly, we conclude the trial court‘s rejection of appellant‘s claim of ineffective assistance of counsel was not clearly erroneous and should be affirmed. Id.
Judgment affirmed.
All the Justices concur.