WELCH v. THE STATE.
S15A1393
Supreme Court of Georgia
January 19, 2016
298 Ga. 320
THOMPSON, Chief Justice.
FINAL COPY
Aрpellant Kevin Welch was convicted of malice murder in connection with the shooting death of Alex Howard.1 He appeals, asserting, inter alia, the trial court erred in refusing to strike two jurors for cause. Although we find the enumerated errors to be without merit, we find error with regard to
1. Viewed in a light most favorable to the verdict, the evidence at triаl showed the following:
In the early morning hours on February 2, 2009, appellant, accompanied by two women, went to a known drug house. Shortly thereafter, Jecedric Bell and Alex Howard arrived, and Howard sold cocaine tо the women. Appellant became extremely angry with Howard, apparently because he did not believe Howard should have been selling drugs in someone else‘s drug house. Appellant repeatedly yelled at Hоward to “get the f . . . out” of the house. Howard, who was unarmed, left the house and began walking toward his car; appellant followed him with a gun in each hand. Appellant fired two gunshots, one of which struck Howard in the head. Appellant ran back inside the drug house — where he was heard to say he “didn‘t mean to do it” — and fled in his car. The victim never regained consciousness and died after a four-month hospital stay. Police ultimately located and arrеsted appellant several months later. He told police he walked out of the house with Howard, fired a warning shot in the air, and fired a second shot which struck Howard accidentally.
The evidence was sufficient to enable any rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). See also Hill v. State, 284 Ga. 521 (1) (668 SE2d 673) (2008) (evidence sufficient to find defendant guilty of malice murder; it is for the jury, not this Court, to resolve conflicts in the evidence and assess the credibility of witnesses). It follows that the trial court correctly refused to grant appellant‘s motion for new trial or other relief based on his challenge to the sufficiency оf the evidence. See Combs v. State, 268 Ga. 398, 400 (500 SE2d 328) (1997).
2. Appellant asserts the trial court erred in denying appellant‘s motion to strike jurors 24 and 30 for cause because they both responded negatively when asked whether their minds were “perfeсtly impartial between the state and the accused.” See
3. Appellant contends the trial court erred in permitting Jecedric Bell to testify by reading from prior statements he mаde to police instead of relying on his memory. This contention finds no support in the record. Bell was not permitted to read from his prior statements aloud. He read the prior statements to himself, claimed he had no recollection of having made the statements, and subsequently testified from memory as to what he witnessed on the night in question. There was no error. See Williams v. State, 257 Ga. 788, 789 (6) (364 SE2d 569) (1988) (it is not error to permit witness to read document to refresh his memory as long as he testifies from his memory).
4. Appellant asserts the trial court erred in permitting Detective Kevin Otts to testify — over appellant‘s hearsay objection — that he met with Dale Robinson several months after Robinson gave a stаtement to police and that Robinson told him “he wasn‘t fully honest in his first statement and that he
5. Finally, appellant asserts trial counsel rendered constitutionally deficient performance because she failed to use a peremptory strike on juror 30 (see Division 2, supra) and to challenge the admissibility of the statement he made to police. We disagree.
In order to prevail on an ineffective assistance of counsel claim under Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984), appellant “must prove both that his trial counsel‘s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance.” White v. State, 283 Ga. 566, 569 (4) (662 SE2d 131) (2008). As to the first prong of the Strickland test, trial counsel is “strongly presumed to have rеndered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, supra at 690; Sutton v. State, 295 Ga. 350, 354 (759 SE2d 846) (2014). Thus, it is incumbent upon appellant to make an affirmative showing that trial counsel‘s purрorted deficiencies did not stem from a reasonable trial strategy. See Smith v. State, 282 Ga. 388, 391-392 (651 SE2d 28) (2007).
At the motion for new trial hearing, appellant‘s trial counsel testified that, although she moved to strike juror 30 for cause, she did not use a peremptory strike on that juror because she had “simply run out of [peremptory] strikes by the time” juror 30 was reached. Although trial counsel declined to characterize that decision as trial strategy, it is obvious that it was. See Shields v. State, 307 Ga. App. 830, 831-832 (706 SE2d 187) (2011) (it is the сonduct of the attorney, not her thinking, that is assessed for reasonableness). If counsel had not used her peremptory strikes on other potential jurors she would have had a remaining strike to use on juror 30. And appellant dоes not contend trial counsel used her peremptory strikes unreasonably apart from the fact that she did not save a strike to use on juror 30. See id. at 832 (use of peremptory strikes is “a quintessential strategic decision“).
As fоr appellant‘s statement to police, trial counsel averred she made a strategic decision to refrain from moving to have it excluded because it enabled her to present appellant‘s versiоn of the shooting without calling him as a witness and risking his impeachment by several prior felony convictions. See
6. As we noted in footnote 1, the trial court purported to merge the possession of a firearm by a convicted felon count into the malicе murder count. This was erroneous. See Hulett v. State, 296 Ga. 49, 54 (2) (766 SE2d 1) (2014) (appellate court can address merger error sua sponte even if the error is favorable to the defendant). “The test for determining whether one crime is included in anothеr, and therefore merges as a matter of fact, is the ‘required evidence’ test — whether conviction for one of the offenses is established by proof of the same or less than all the facts required to establish the оther crime.” Grissom v. State, 296 Ga. 406, 410 (1) (768 SE2d 494) (2015). Employing that test, the possession of a firearm by a convicted felon count should not have been merged with the malice murder count. See Hulett v. State, supra at 55 (holding that “‘[p]ossession of a firearm by a convicted felon does not merge into a conviction for malice murder‘” (citation omitted)). Accordingly, we remand the case for resentencing on the possession of a firearm by a convicted felon count.
Judgment affirmed in part аnd vacated in part, and case remanded for resentencing. All the Justices concur.
Decided January 19, 2016.
Murder. Fulton Superior Court. Before Judge Adams.
Kenneth W. Sheppard, for appellant.
Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Sheila E. Gallow, Assistant District Attorneys; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew Min-soo Youn, Assistant Attorney General, for appellee.
Notes
An out-of-court statement shall not be hearsay if thе declarant testifies at the trial or hearing, is subject to cross-examination concerning the statement, and the statement is admissible as a prior inconsistent statement or a prior consistent statement under Code Sеction 24-6-613 or is otherwise admissible under this chapter.