S22A1116. MONROE v. THE STATE.
S22A1116
Supreme Court of Georgia
315 Ga. 767
COLVIN, Justice.
FINAL COPY
Steven Monroe appeals his convictions for malice murder and related offenses arising out of the 2014 shooting death of Clayton Cross and aggravated assaults of Kenneth Minson (“Kenneth“), Darius Minson (“Darius“), Willie Calhoun, Muhammad Clark, Dominique Ellis, and Craig Harris.1 On appeal, Monroe claims that
the evidence was insufficient to support his convictions for violating Georgia‘s Gang Act and his convictions on all counts related to Clark. Monroe further alleges that the trial court abused its discretion by denying his motion for mistrial based upon alleged juror misconduct, erred by failing to charge the jury on self-defense, improperly admitted opinion evidence at trial, and erred during sentencing. Finally, Monroe alleges that he received ineffective assistance of counsel. For the reasons that follow, we affirm Monroe‘s convictions. However, because the trial court committed sentencing errors, we vacate the sentences for Counts 11, 13, 15, 17, 19, 21, 47, and 48, and remand this case to the trial court with direction to correct the sentencing errors.
1. Monroe contends that the trial court erred by failing to grant his motion for a directed verdict on all Georgia Gang Act chаrges (Counts 6, 7, 22 through 35, 38, 39, 42, and 46 through 48) because the evidence failed to show that the commission of the crimes furthered the interests of the gang. In order to show a violation of the Georgia Gang Act, the State must establish:
(1) the existence of a “criminal street gang,” defined in
OCGA § 16-15-3 (2) as “any organization, association, or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity“; (2) the defendant‘s “association with the gang“; (3) that the defendant “committed one of the offenses identified inOCGA § 16-15-3 (1) “; and (4) “that the crime was intended to further the interests of the gang.”
Boyd v. State, 306 Ga. 204, 209 (1) (b) (830 SE2d 160) (2019) (citations omitted). As to the fourth prong, “[t]his element requires some nexus between the act and the intent to further street gang activity.” Butler v. State, 310 Ga. 892, 896-897 (1) (b) (855 SE2d 551) (2021) (citation omitted).
“The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction.” Smith v. State, 304 Ga. 752, 754 (822 SE2d 220) (2018) (citation and punctuation omitted). “Under this review, we must put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact.” Frazier v. State, 308 Ga. 450, 452-453 (2) (a) (841 SE2d 692) (2020) (citation and punctuation оmitted). When evaluating the sufficiency of the evidence as a matter of constitutional due process, we must determine whether, viewing the evidence in the light most favorable to the verdict, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (emphasis omitted).
Viewed in this light, we cannot say that the trial court erred in denying Monroe‘s motion for a directed verdict. The evidence presented at trial showed that, at all relevant times, Monroe was in a leadership position of the “Hoover” gang, a subset of the Crips, a criminal street gang based in Homerville, Georgia. Monroe‘s codefendants, Dexter Freeney and Trevor Posley were also members of the Crips, but they were in different subsets of the Crips.
On May 8, 2014, Monroe was driving in a car with his father, Otis, when Monroe rear-ended another car in which Kenneth, a member of the Bloods criminal street gang, was a passenger. Freeney, who was near the accident scene, saw Monroe approach the driver of the other car with his insurance card. As the two interacted, Kenneth was standing nearby holding a gun behind his lеg. Monroe later told Freeney that he felt disrespected by Kenneth and that he “wanted [Kenneth] dead for having the gun.” Freeney testified that a car wreck between members of the Bloods and the Crips would be “the beginning of World War II.”
On May 10, 2014, Freeney was outside the 912 Club with Monroe, Posley, and fellow Crips member Donterris Brand. Monroe asked Freeney to see if Kenneth was inside the club. Freeney testified that fellow Crips members sometimes expect favors of one another. He believed that Monroe would not have asked him to check in the club for Kenneth‘s presence had Freeney not also been a Crip. Freeney entered the club and saw Kenneth standing at a gambling table. Freeney returned outside to report his findings to Monroe, and the men then went back inside the club.
Monroe approached Kenneth and asked, “Is you good?” Kenneth answered, “Yeah, I‘m good,” and then Monroe suggested that the two go outside so they could talk. Kenneth testified that he felt cautious as he followed Monroe, thinking that something might happen because he “had already got word that something might go on... [and] to be careful.” Monroe stated that he wanted to “clear the air” concerning the car accident earlier in the week and, Kenneth testified, Monroe continued to talk about the wreck in order to distract Kenneth. During their brief conversation, Posley approached from around the corner with his hand under his shirt. Posley and Monroe both brandished guns and started shooting. Kenneth testified that, as he ran away from the gunshots, he removed a gun from his pocket and returned fire. Kenneth ran back into the club where he was met with more gunfire from Freeney.
Darius, Calhoun, Clark, Ellis, Harris, and Cross were playing cards at a table near the back door of the club when the shooting started. Darius, Calhoun, Ellis, and Harris, in addition to other witnesses, testified that, as soon as they heard shots, the crowd inside the club became chaotic, “like roaches scatter when you spray Raid.” Everyone inside the club tried to run and hide from the gunfire. Freeney testified that he saw Monroe‘s arm, which he identified by a distinctive gang tattoo, shooting a black .38 Special revolver into the club through the back door. Other witnesses testified that they saw Monroe with a gun that night and they saw him shooting into the club from the back door. After the shooting stopped, Kenneth found Cross lying in a pool of blood on the floor. He had suffered a single gunshot wound to the head.
Monroe fled the scene immediately after the shooting. Freeney fled the scene in a car with Posley, Posley‘s brother, and Brand. The group drove to Freeney‘s cousin‘s house where they locked Freeney‘s Colt .357 and Posley‘s .40-caliber gun in a gun safe. Posley told Freeney not to say anything about what happened at the club. After the shooting, Posley talked about how “snitches” need to die, and Monroe threatened Freeney multiple times not to testify. Kenneth left the scene and threw his gun, a Lorcin .380 semi-automatic pistol, into a pond. His gun was later recovered and sent to the GBI for testing.
During their investigation into the shooting, law enforcement officers collected numerous bullets and shell casings at the scene. They also located several bullet defects on the rear exterior portion of the building and on the back porch, indicating that several of the shots fired originated from outside of the club. During Cross‘s autopsy, the medical examiner retrieved one .38-caliber bullet from Cross‘s skull.
A GBI firearms expert testified that she received “a number of different... cartridge cases,” “.380 metal jacketed bullets and a .380 metal jacket,” and “seven .38 lead round bullets,” including the one from Cross‘s autopsy, to examine. The firearms examiner opined that the .380 bullets and metal jacket were fired from Kenneth‘s gun. She further concluded that the bullet that killed Cross was not fired from Kenneth‘s weapon. She opined that three of the .38-caliber bullets that had been located inside the club, and the .38-caliber bullet that had killed Cross, “were consistent with being fired from the same types of firearms, that being Astra and Rossi .357 Magnum revolvers and .38 Special revolvers, and also Taurus, Iver Johnson and Charter Arms .38 Special revolvers.” She further opined that three of the .38-caliber bullets recovered from inside the club were consistent with being fired from a different weapon, either a Colt .357 Magnum or .38
Monroe contends that, though the evidence showed that the defendants were gang members, the State failed to prove that the shootings were committed with an intent to further the interests of the gang. Specifically, Monroe argues that the evidence failed to establish that he and his co-defendants planned to commit the shootings and that the incident was related to their gang. However, as discussed above, the evidence presented at trial showed that Monroe, a high-ranking member of the Crips, sought to avenge the perceived disrespectful behavior of Kenneth, a rival Bloods gang member, after the two were in a car accident. Monroe enlisted Freeney and Posley, fellow Crips, to help execute that plan and directed his co-defendants on what actions to take. See Rodriguez v. State, 284 Ga. 803, 807 (1) (671 SE2d 497) (2009) (“Management of or participation with others in that criminal street gang activity necessarily implies knowledge of the gang‘s criminal activities and a specific intent to further its criminal purposes.“). After the shooting, the group took steps to conceal their weapons, and Monroe threatened others not to talk to the police or testify against him at trial. See Butler, 310 Ga. at 897 (1) (b) (“[D]iscussions between fellow gang members after the charged crimes, which may include attempts to avoid getting caught, may offer further evidence of a nexus between the crimes and the gang‘s interests.“). Because the evidence was sufficient to establish a nexus between the charged crimes and an intent to further the gang‘s interests, the trial court did not err in denying Monroe‘s motion for a directed verdict on the Gang Act counts.
Monroe further contends that the trial court erred “in not directing a verdict” and in entering convictions and sentences for the counts related to the aggravated assault and weapon charge concerning Clark2 because Clark did not testify at trial and, therefore, there was insufficient evidence to support these convictions. We disagree. “The testimony of a single witness is generally sufficient to establish a fact.”
(“Testimony that the victims ran from the gunfire is sufficient evidence that Appellants placed them in reasonable apprehension of immediately receiving a violent injury.“).
2. Next, Monroe contends that the trial court abused its discretion when it denied his motion for mistrial based upon alleged juror misconduct. The record shows that, prior to the beginning of deliberations, the trial court instructed the jury that, among other things, they were not allowed to use an electronic device during deliberations to communicate with anyone, and they were not allowed to go onto any social media websites “to communicate with anyone any information about this case, or to conduct any research about this case until [the court] accept[s the] verdict.”
The jury started deliberating at 9:00 a.m. on June 16. They broke for lunch at approximately 12:15 p.m. and, upon their return an hour later, B. T., a juror, reported an incident to the trial court. The trial court questioned B. T. as follows:
COURT: At [lunch] you had come back and indicated that somebody had made contact with your wife; is that right?
B. T.: Right.
COURT: Would you please — let me get this where everybody can hear yоu. Would you please state what you indicated or what you understand that occurred?
B. T.: Some black guy came in my wife‘s store and said there was going to be trouble here today.
COURT: And where was this store?
B. T.: Behind the Subway.
COURT: Do you have any idea whether the fellow that came in
knew that the lady there was your wife or not? B. T.: No, sir.
COURT: He just came in and made a statement?
B. T.: Yes, sir.
COURT: And did your wife tell you that?
B. T.: Yes, sir.
COURT: Did she call you and talk to you? How did y‘all communicate?
B. T.: I go over there for lunch.
COURT: Okay. And she told you that a black fellow came in and said what? After the case there‘s going to be trouble, or what actually you understand was said?
B. T.: What I understood, it was when the verdict was read, that‘s when the trouble is.
COURT: Okay. Have you given this information to any other jurors?
B. T.: [shakes head negatively].
COURT: Did any other jurors hear the statement? Has anybody heard anything about that statement that your wife made to you?
B. T.: I don‘t think so, sir.
COURT: You didn‘t tell anybody?
B. T.: No.
COURT: Okay. Has this statement scared you or got you concerned?
B. T.: A little bit.
COURT: Okay. Do you feel like you are no longer able to serve as a juror or can you continue serving as a juror? What‘s your —
B. T.: I‘d like to continue on.
Thereafter, the trial court individually polled the jury regarding what jurors might have heard and what, if any, effect that might have had on their ability to be impartial.
Juror P. H. stated that B. T. walked up to her and another juror and stated that “his wife come up to him and said somebody come into the store and said that they was going to get somebody.” She indicated that the сomment by B. T. did not in any way affect her ability to be a fair and impartial juror in the case.
Juror B. H. stated that she heard bits of a statement made by B. T. She explained “[a]ll I heard was that his wife was upset because somebody come in the store and said that Freeney got beat up.” She confirmed that P. H. was with her when B. T. made that statement. She also affirmed that the statements would not affect her ability to be a fair and impartial juror in the case.
Juror L. N. stated that, when the jurors came back from lunch, B. T. “said that he felt like he should tell us what he had heard while he was at lunch.” L. N. stated, “I told him I was not interested in hearing any information. I told him to speak to the sheriff or Deputy Sheriff Raymond Peterson. One of the ladies while we were in the bathroom was discussing that she had heard there was going to be trouble when this was over with.” L. N. confirmed that this female juror had already been questioned by the court regarding this issue. L. N. also confirmed that nothing she heard would impair her ability to sit as a fair and impartial juror in the case.
Juror K. P. testified that she heard B. T. “talking about something they had heard from the outside,” but she “didn‘t hear exactly” what he had said. She testified that she “walked off and told [L. N.] to let‘s hurry and get on inside,” and that the “only thing I did hear was about the Defendant that had already been sent to jail.”3 She affirmed that nothing she heard would impair her ability to sit as a fair and impartial juror.
Juror J. M. S. stated that he did not hear anything about the case from anyone or any other juror, but he admitted that he saw a
post on Facebook that “if we didn‘t plead both of them guilty, one of them was going to die on the stand.” When questioned he stated that he did not mention what he saw on Facebook to anyone else on the jury.
Juror T. J. indicated that he had heard from his wife that someone had posted something about the case on Facebook. Specifically, he heard that “if somebody got away, they was going to kill them.” He testified that the post did not indicate who would be killed or who had made the post. T. J. stated that this information would not prevent him from being a fair and impartial juror on the case.
Juror K. G. stated “[t]he only thing I‘ve heard is when I went to lunch I heard that people were putting stuff on Facebook.” K. G. testified that he had not seen any of the postings, and further affirmed that he did not hear anything during the lunch hour that would have affected his ability to be fair and impartial.
Jurors T. S., R. M., L. G., and D. R., and alternate jurors C. G, J. S., and W. D. had not heard anything related to the case during lunch.
After the jury was polled, the following occurred:
COURT: All right. I‘m going to remove [J. M. S.] who went on Facebook in violation of Court order. And I‘ll — well, I‘ll proceed on that issue later. I‘m going to replace him with the first alternate, [C. G.]. Now, any objections from anyone?
POSLEY: None from Posley.
STATE: Not from the State, Your Honor.
MONROE: I don‘t have any objections to [J. M. S.]
being removed, but I‘d also ask that [B. T., K. G., P. H., T. J., and B. H.] be removed. [B. T.], his wife has been threatened, and I really don‘t think that he can be an impartial juror, no matter what he says. And he got up here on the stand and lied to say that he didn‘t talk to — talk to anybody else about this, and then we had [P. H. and B. H.] come in and say that he had spoke [sic] with them about it. And [L. N.] said he attempted to speak with her, and [K. P.], and they walked away. [B. H.], okay, stated that she heard that Freeney was beaten up, so while she states that she can‘t be — I mean, that she can be an impartial witness, I don‘t — I mean, juror, I don‘t know about that. And [T. J.] speaking with his wife about what was on Facebook, about somebody not making it out of here. I don‘t think any of those six jurors should remain on the jury, and with us only having three alternates, I would move for a mistrial. POSLEY: Posley joins in that motion. Especially [B. T.] becаuse I think he did not — was not truthful with the Court.
COURT: All right.
POSLEY: And I think he‘s really living in fear now, afraid not to convict both of these defendants.
COURT: All right. I‘m going to deny your motion for mistrial. I‘m going to replace [B. T.] with the next juror in line, [J. S.]. All right.
The trial court then removed B. T. and J. M. S., replaced them with alternates, and instructed the jury to start deliberations from the beginning since two new jurors had been placed on the panel. The jury resumed deliberating at 2:21 p.m. Five hours later, the jury reached a verdict acquitting Posley of all charges and acquitting Monroe of four charges but finding him guilty of all remaining counts.
Monroe claims that the trial court abused its discretion by failing to order a mistrial upon discovering that (1) B. T. had received extra-judicial information that there would be “trouble” when the court read the verdict and had shared that information with other jurors, and (2) J. M. S. had received extra-judicial information that an acquittal might result in one of the defendants being killed. We disagree.
We review a trial court‘s denial of a motion for mistrial for abuse of discretion, “and the trial court‘s exercise of [its] discretion will not be disturbed on appeal unless a mistrial is essential to preserve the defendant‘s right to a fair triаl.” Mitchell v. State, 315 Ga. 382, 389 (2) (882 SE2d 322) (2022) (citation and punctuation omitted).
“To set aside a jury verdict solely because of irregular jury conduct, a court must conclude that the conduct was so prejudicial that the verdict is inherently lacking in due process.” Harris v. State, 314 Ga. 51, 53 (2) (875 SE2d 649) (2022) (citation and punctuation omitted). “Any juror [irregularity] that has the potential to injure a defendant‘s due process rights triggers [a] presumption of prejudice,” and “the prosecution [must then carry] the burden of establishing beyond a reasonable doubt that no harm occurred.” Id. at 53-54 (2) (citations and punctuation omitted). It is well settled that
the type of irregularity that gives rise to such a presumption of prejudice involves juror misconduct that has the potential to injure a defendant‘s due process rights, e.g., making an unauthorized visit to the crime scene and then presenting the findings to the jury panel; privately discussing the defendant‘s guilt prior to deliberations in violation of the court‘s instructions; or
improperly accessing outside news sources.
Dixon v. State, 302 Ga. 691, 695 (3) (a) (808 SE2d 696) (2017) (citation and punctuation omitted). “To establish that the juror [irregularity] was harmless beyond a reasonable doubt, the State must show based on the record evidence that there is no reasonable possibility that the juror [irregularity] contributed to the conviction.” Harris, 314 Ga. at 54 (2) (citation and punctuation omitted).
Hеre, because the State showed that the irregularities were harmless beyond a reasonable doubt, the trial court did not abuse its discretion by denying Monroe‘s motion for mistrial based upon alleged juror misconduct. Although J. M. S. improperly accessed social media in violation of the trial court‘s instruction, the
S. s misconduct was harmless beyond a reasonable doubt. See Dixon, 302 Ga. at 695 (3) (a) (juror irregularity harmless beyond a reasonable doubt where there was no evidence juror shared any impermissible information with other jurors and where juror was dismissed after her actions came to light).
Turning to B. T., the record shows that he obtained information about the case from his wife and shared that information with other members of the jury. Assuming for the sake of argument that this is the type of conduct that would trigger a presumption of prejudice, see Dixon, 302 Ga. at 695 (3) (a), the trial court was authorized to find that the juror s actions did not impact any other juror s assessment of the charges against Monroe. The information obtained and shared by B. T. — that there would be “trouble” when the court read the verdict — did not indicate that any particular verdict (guilty or not guilty) would trigger “trouble,” nor did it indicate what kind of “trouble” might occur or who might be harmed. Moreover, the other jurors who talked to B. T. (P. H. and B. H.) stated that the information they heard would not affect their ability to remain fair and impartial,4 and the record supports the conclusion that the information in fact did not cause the jury to return any particular verdict.5
Because “no evidence was presented that the juror s conduct contributed to the conviction such that the verdict is inherently lacking in due process,” Hodges v. State, 302 Ga. 564, 569 (4) (807 SE2d 856) (2017), the trial court was authorized to conclude that the State had carried its burden in establishing beyond a reasonable doubt that B. T. s alleged misconduct was harmless. Consequently, the trial court did not abuse its discretion by denying Monroe s motion for mistrial based upon alleged juror misconduct.6
3. Monroe claims that the trial court erred by failing to instruct the jury on self-defense. Monroe, howevеr, did not request a jury charge on self-defense. Because he raises this issue for the first time on appeal, this claim can be reviewed only for plain error. See Williams v. State, 302 Ga. 147, 151-152 (2) (805 SE2d 873) (2017); Shaw v. State, 292 Ga. 871, 872-873 (2) (742 SE2d 707) (2013) (jury charge reviewed for plain error where appellant “neither requested a charge on the duty to retreat nor objected when the trial court failed to give such a charge“). In reviewing a failure to charge for plain error, “we will reverse the trial court only if the 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.” Herrington v. State, 300 Ga. 149, 151 (2) (794 SE2d 145) (2016) (citation and punctuation omitted).
At trial, Monroe elicited the following testimony from Freeney on cross-examination: that, on one occasion, Monroe told Freeney that Kenneth had shot first and Monroe had only returned fire in self-defense; and that Posley had also told Freeney that Kenneth pulled a gun and shot at Monroe first, and Monroe had merely returned fire. Based upon Freeney s testimony, we agree with Monroe that there was slight evidencе to support a self-defense charge. See Leeks v. State, 303 Ga. 104, 107 (2) (810 SE2d 536) (2018) (“A trial court is authorized to give a requested jury instruction if there was produced at trial slight evidence supporting the theory of the jury charge.” (citation and punctuation omitted)). Moreover,
4. Monroe alleges thаt the trial court erred by admitting the improper lay opinion testimony of Special Agent Klay Luke at trial. During the direct examination of Agent Luke, the State asked him to describe his role as the lead investigator, which included questions concerning witness interviews and evidence collection. At one point, the following exchange occurred:
STATE: . . . Is it safe to say there was over a hundred and fifty exhibit numbers indicating that s a hundred and fifty different people you interviewed, pieces of evidence you touched or some kind of documentation that you conducted — documentation investigation you conducted regarding this case?
LUKE: That is correct.
STATE: Regarding the murder of Clay Cross?
LUKE: That is correct.
STATE: All right. There are several people that you interviewed that did not agree to come testify; is that correct?
LUKE: That is correct.
STATE: During your interview process, did everyone cooperate fully?
LUKE: No, they did not.
STATE: And what did you surmise from that lack of cooperation as the case agent, as the investigator of this murder of Clay Cross?
LUKE: They re in fear.
Co-defendant Posley objected to the agent s testimony, and Monroe joined the objection. The prosecutor responded, “[T]his is the case agent. It s his investigation and he had tо draw conclusions from his investigation and that s what I m asking him.” The trial court overruled the objection, stating that the agent was allowed to “give his opinion based on his investigation and his discussions with these people.” Thereafter, the prosecutor moved on to another topic.
Monroe alleges that the trial court erred by allowing Agent Luke to give opinion testimony because it did not meet the requirements of
Here, the jury had already heard testimony that Posley and Monroe had threatened witnesses not to talk to or cooperate with law enforcement officers. Further, the evidence against Monroe was strong, and the exchange between Agent Lukе and the prosecutor was brief. Based on the foregoing, it is highly probable that any error did not contribute to the verdict. See Tuggle v. State, 305 Ga. 624, 627 (2) (825 SE2d 221) (2019) (any error in the admission of evidence was harmless where testimony was cumulative of other evidence already admitted and where there was strong evidence of guilt); Soto v. State, 303 Ga. 517, 524 (3) (813 SE2d 343) (2018) (holding that any error in admitting evidence was harmless where the evidence against the
5. Monroe alleges that the trial court erred when it sent the autopsy report back with the jury in violation of the so-called “continuing witness rule.”8 Monroe contends that allowing the autopsy report in the jury room during deliberations placed an undue emphasis on the report over the oral testimony of the medical examiner from the witness stand. However, this issue is not preserved for appellate review.
During the State s case-in-chief, the State called the medical examiner, Dr. Maryanne Gaffney-Kraft, to testify regarding her findings from Cross s autopsy. When the State tendered the autopsy report into evidence, Posley lodged an objection under thе continuing witness rule and argued that it not be allowed to go back with the jury. Monroe joined the objection. The State responded, “[I]t is the actual findings of the autopsy, and we are submitting it as such for the jury s review.” The trial court “note[d] the objection” and admitted the report into evidence. The record shows no additional discussion, objection, or ruling by the trial court on this issue, and the record does not reflect whether the autopsy report went out with the jury during deliberations. Because there is nothing in the record indicating that the autopsy report was given to the jury during deliberations, this claim fails. See McFarlane v. McFarlane, 298 Ga. 361, 362 (4) (782 SE2d 29) (2016) (explaining that the burden is on the appellant to show error affirmatively by the record). See also Parrott v. State, 330 Ga. App. 801, 803 (1) (769 SE2d 549) (2015) (“It is well settled that the burden is on the appellant who asserts error to show it affirmatively by the record. ” (citing Griffin v. State, 265 Ga. 552, 555 (10) (458 SE2d 813) (1995), and quoting Roach v. State, 221 Ga. 783, 786 (4) (147 SE2d 299) (1966))); Smart v. State, 253 Ga. App. 649, 653 (5) (560 SE2d 92) (2002) (“The burden is on appellant to show error affirmatively from the record, and we will not presume error where the record is silent.“).9
6. Next, Monroe alleges that he received ineffective assistance of counsel when trial counsel failed to: (a) request a jury charge on self-defense, (b) conduct a prеtrial investigation into the criminal histories of all of the State s witnesses and discover any deals that Kenneth and Freeney may have obtained in exchange for their testimony, and (c) properly impeach Kenneth and Freeney with their prior criminal histories and potential deals in exchange for their testimony.
In order to establish constitutionally ineffective assistance, a defendant must show that his counsel s performance was professionally deficient and that, but for such deficient performance, there is a reasonable probability that the result of the trial would have been different. See Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). If the defendant fails to satisfy either prong of the Strickland test, this Court is not required to examine the other. See Green v. State, 291 Ga. 579, 580 (2) (731 SE2d 359) (2012).
“A court considering a claim of ineffective assistance must apply a strong presumption that counsel s representation was within the wide range of reasonable professional assistance.” Harrington v. Richter, 562 U. S. 86, 104 (IV) (131 SCt 770, 178 LE2d 624) (2011) (citation omitted). “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Strickland, 466 U. S. at 688 (III) (A).
“In reviewing the trial court s decision, we accept the trial court s factual findings and credibility determinations
(a) Jury charge
Monroe alleges that trial counsel was ineffective for failing to request a jury charge on self-defense where there was slight evidence to support such a charge. However, for the reasons discussed in Division 3, supra, Monroe cannot show prejudice under Strickland. See Jackson v. State, 306 Ga. 69, 84 (4) (b) (829 SE2d 142) (2019) (“This Court has equated the prejudice step of the plain error standard with the prejudice prong for an ineffective assistance of counsel claim.” (citation and punctuation omitted)). Accordingly, this claim fails.
(b) Trial preparation
Monroe claims that trial counsel was ineffective for failing to fully investigate the prior criminal histories of all of the State s witnesses. At the motion for new trial hearing, trial counsel explained that “there were more than one hundred witness names given to me,” and she had no recollection “if we ran histories on them or not.” However, counsel explained that she was familiar with many of the State s witnesses because her office had previоusly represented them on their own criminal matters. Counsel also testified that the District Attorney s office had an open file policy and that she personally copied the State s file to make sure no papers were missed.
Insofar as Monroe claims that counsel was deficient for failing to investigate the criminal histories of Freeney and Brand, this claim fails. Counsel testified that, prior to trial, she learned the details of Freeney s guilty plea agreement and sentence. Counsel was also aware that, at the time of trial, Freeney and Brand both had pending Gang Act charges.10 Based on the foregoing, Monroe has failed to “show that counsel s representation fell below an objective standard of reasonableness” regarding counsel s investigation into the criminal histories of Freeney and Brand. Strickland, 466 U. S. at 688 (III) (A).
Monroe has also failed to show deficient performance for trial counsel s alleged failure to investigate the criminal histories of all of the State s witnesses. The record shows that the State called 22 witnesses during its case-in-chief. At the motion for new trial hearing, Monroe introduced the сonvictions of two witnesses, Darryl Thomas and Bobby Joe Clark. But Clark was not called as a witness at trial, and therefore could not have been impeached with a prior conviction. Thomas s prior convictions were for misdemeanor violations of Georgia s alcohol sale and licensing statute, which would not have been admissible as impeachment evidence. See
As to the remainder of the State s witnesses, Monroe did not introduce any evidence to show what counsel might have uncovered had she investigated their criminal histories further. Without that evidence, his claim of deficient performance fails as to those witnesses as well. See Martin v. State, 276 Ga. 121, 122 (2) (575 SE2d 498) (2003) (“Because the defendant has not presented any evidencе to support his allegation that trial counsel s [actions] fell below a reasonable standard of professional conduct, we conclude that he has not met the standard for proving ineffective assistance of trial counsel.“); Banta v. State, 282 Ga. 392, 399 (6) (e) (651 SE2d 21) (2007) (“Mere speculation will not support a claim of ineffective assistance of counsel.“). Monroe further claims that trial counsel was deficient in her pretrial investigation in that she failed to discover any deal that Freeney and Kenneth were given in exchange for their testimony. As discussed above, the record shows that counsel knew of the deal Freeney was given prior to his testimony and that he was thoroughly cross-examined on this topic. Accordingly, Monroe has failed to show that counsel s investigation was objectively unreasonable and, therefore, has not established deficient performance on this claim with respect to Freeney. See Martin, 276 Ga. at 122 (2).
Regarding an alleged plea deal for Kenneth, the record shows that, at trial, counsel questioned Kenneth regarding whether he had received a deal in exchange for his testimony, to which Kenneth rеplied “no.” At the motion for new trial hearing, in an attempt to support his claim of ineffective assistance of counsel, Monroe introduced evidence that the arrest warrants taken out against Kenneth in this case were dismissed after the trial, with the explanation that “[t]he State determined that he was actually a victim, intended target rather than a suspect,” and that the “victim cooperated at trial.” Another set of warrants for possession of contraband of an inmate against Kenneth was also dismissed after trial. However, this evidence did not establish that Kenneth had in fact received a deal in exchange for his testimony, and Monroe did not introduce any additional evidence to support his speculation to that effect. Because “mere speculation will not support a claim of ineffective assistance of counsel,” Banta, 282 Ga. at 399 (6) (e), Monroe has failed to establish deficient performance on this claim.11
(c) Impeachment of witnesses
Monroe claims that trial counsel was ineffective for failing to properly impeach Kenneth and Freeney with their prior criminal histories and potential deаls in exchange for their testimony. Regarding Kenneth, Monroe has failed to put forward any evidence that Kenneth had prior convictions that could be introduced at trial and has also failed to introduce any evidence that he received a deal in exchange for his testimony. Because Monroe has failed to support this claim with any evidence, this claim of ineffective assistance of counsel fails. See Martin, 276 Ga. at 122 (2) (“Because the defendant has not presented any evidence to support his allegation that trial counsel s [actions] fell below a reasonable standard of professional conduct, we conclude that he has not met the standard for proving ineffective assistance of trial counsel.“).
Concerning Freeney, the record shows that both trial counsel and counsel for Posley conducted lengthy and thorough cross-examinations of Freeney regarding the plea deal he received in exchange for his testimony, his gang affiliations, and his status as a drug dealer. “The scope of cross-examination is grounded in trial tactics and strategy, and will rarely constitute ineffective assistance of counsel.” Brown v. State, 289 Ga. 259, 263 (4) (b) (710 SE2d 751) (2011) (citation and punctuation omitted). Monroe provides no argument as to how additional cross-examination of Freeney would have benefitted the defense, nor can we conclude from the record that counsel s cross-examination was deficient. Therefore, Monroe s claim of deficient performance concerning trial counsel s impeachment of Freeney fails.12 See Brown, 289 Ga. at 263 (4) (b) (no deficient performance for counsel s alleged failure to further cross-examine a witness where the record shows that counsel conducted a thorough cross-examination of that witness, and the defendant made no argument as to how further cross-examination would have benefitted the defense).
7. Monroe raises two claims of trial court error concerning the sentences imposed and the failure to merge certain charges with others. We will address each in turn.
(a) Merger claims
Monroe alleges that the trial court erred when it failed to merge the Gang Act charges listed in Counts 6, 7, 22 through 33, 46, and 47 with the Gang Act charges listed in Counts 34, 35, 38, 39, and 48 because the crimes in these counts allеged the same conduct, included the same victims, and were proven by the same facts at trial. Merger is a legal question that we review de novo. See Price v. State, 313 Ga. 578, 581 (872 SE2d 275) (2022). For the reasons discussed below, we conclude that, while the trial court erred in sentencing Monroe on Counts 47 and 48 of his indictment, the trial court properly sentenced Monroe on the rest of his Gang Act charges.
Here, Monroe challenges the sentences he received for crimes committed pursuant to two subsections of the Gang Act:
of
The State, however, contends that the plain language of
However, the question of whether the language of subsection (m) provides for separate sentences for violations of different subsections of the Gang Act has not been addressed by this Court. It is well settled that “[t]he legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments.” Brown v. Ohio, 432 U. S. 161, 165 (II) (97 SCt 2221, 53 LE2d 187) (1977). “[T]he Doublе Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U. S. 359, 366 (III) (103 SCt 673, 74 LE2d 535) (1983). See also Ohio v. Johnson, 467 U. S. 493, 499 (104 SCt 2536, 81 LE2d 425) (1984) (“Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, the question under the Double Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative intent.“). Indeed, “[e]ven if the crimes are the same under Blockburger[ v. United States, 284 U. S. 299, 304 (52 SCt 180, 76 LE 306) (1932)], if it is evident that the state legislature intended to authorize cumulative punishments, a court‘s inquiry is at an end.” Johnson, 467 U. S. at 499 n.8. Accordingly, in order to determine whether the required evidence test of Drinkard applies, we must determine if the legislature has provided for double punishments within the relevant section of the Gang Act.
Our analysis turns on the proper interpretation of
In this case, where Monroe was found guilty of numerous violations of both
That said, we agree with Monroe that the trial court erred in sentencing him on two counts. Count 47 charged that Monroe possessed the firearm “with the intent to maintain his status,” in violation of
(b) Improper sentencing enhancement
Monroe further alleges that the trial court erred by imposing a ten-year sentence for each of the weapons charges listed in Counts 11, 13, 15, 17, 19, and 21. Monroe was tried on a 48-count indictment, which included seven charges of possession of a firearm during the commission of a crime. Monroe was properly sentenced to five years on the first weapon charge (Count 3). However, when the trial court reached the weapons charges in Counts 11, 13, 15, 17, 19, and 21, it determined that these charges were separate convictions triggering the enhancement provisions of
“The rationale for statutes imposing enhanced punishment is that the repetition of the unlawful conduct aggravates the guilt of the accused by demonstrating the incorrigible and dangerous character of the accused, thereby establishing the necessity for an enhanced restraint.” Mays v. State, 262 Ga. 90, 91 (1) (a) (414 SE2d 481) (1992) (citation and punctuation omitted). Where, as here, there are “several crimes arising from the same conduct [thаt] are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution.”
Based on the foregoing, the trial court erred by imposing separate ten-year sentences on Counts 11, 13, 15, 17, 19, and 21; accordingly, we vacate these sentences and remand for resentencing in a manner consistent with this opinion.
Judgment affirmed in part and vacated in part, and case remanded with direсtion. All the Justices concur.
Decided March 7, 2023.
Murder. Clinch Superior Court. Before Judge Tomlinson.
Katherine M. Mason, for appellant.
Chase L. Studstill, District Attorney, Jennifer R. Smith, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Meghan H. Hill, Assistant Attorney General, for appellee.
Notes
Monroe only asserts that the Gang Act crimes should merge under Drinkard and does not argue that the crimes should merge under any other theory.
For these same reasons, we reject Monroe‘s claim that the trial court erred by not merging the predicate felonies listed in Counts 10, 12, 13, 16, 18 and 20 into one of the
Monroe also alleges that the trial court should have merged the
We note that Count 38 charged that Monroe unlawfully participated in criminal gang activity in viоlation of