WILLIAMS v. THE STATE
S15A1857
Supreme Court of Georgia
February 8, 2016
Reconsideration dismissed March 3, 2016
783 SE2d 594
THOMPSON, Chief Justice
THOMPSON, Chief Justice.
Appellant’s pro se amended motion for nеw trial was denied by the trial court, and he appeals, claiming trial court and prosecutorial error and ineffective assistance of counsel. For the reasons that follow, we affirm.
The evidence presented at trial established that brothers Dennis and Donovan Austin had been involved in an on-going disagreement with Marquette Mackie. Just prior to the crimes, the Austin brothers and two friends, Larry Gillard and Jonathan Scott, ran into appellant, Mackie, and Jacques Thornton at a club. Mackie and Dennis talked for a while, then the two groups engaged in a physical altercation which resulted in appellant, Mackie, and Thornton being ejected from the club. Appellant and his friends then drove to Thornton’s house where they picked up Mackie’s girlfriend, Destiny McDuffie. Tamika Daniels, who drove McDuffie to Thornton’s residence to meet the group of men, told рolice that appellant, Mackie and Thornton appeared angry and had guns in their hands. The three men then drove with McDuffie to the Austin brothers’ apartment complex and waited for the Austins to return. The men told McDuffie to keep her head down and not get out of the car. Approximately thirty minutes later, as the Austin brothers, Gillard, and Scott approached their apartment, appellant, Mackie, and Thornton jumped out of their vehicle and shot at them. Donovan was fatally shot in the back, and Dennis was shot in the leg but he survived. Fifty-three shell casings were recoverеd at the scene. Appellant was interviewed by police, and after being given Miranda warnings and agreeing to make a statement, he admitted he was at the crime scene and that he shot at the surviving victims.
1. Construed in the light most favorable to the verdicts, we find the evidence was sufficient to еnable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was
2. Appellant contends his trial counsel provided ineffective assistance on multiple grounds, none of which were asserted by him in his amended motion for new trial filed after he obtained new counsel.2 Nor were the grounds he now seeks to assert raised at the hearing on his amended motion for new trial. Accordingly, these enumerations of error have not been preserved for appeal because they were not raised at the earliest practicable moment. See Jones v. State, 294 Ga. 501, 503 (755 SE2d 131) (2014) (holding that defendant waived ineffective assistance claim based on trial counsel’s failure to emphasize certain evidence where amended motion for new trial did not assert claim of ineffectiveness on that ground and no argument related to the asserted ground was made at the motion for new trial hearing).
3. Appellant also asserts that appellate counsel provided ineffective assistance by failing to properly prepare for the motiоn for new trial hearing. Contrary to appellant’s assertions, however, the record clearly shows that shortly after appellate counsel was appointed, appellant made a knowing waiver of his right to counsel and elected to proceed pro se on his mоtion for new trial and on appeal. Because appellant waived his right to counsel and proceeded pro se, appellate counsel played no role in the motion for new trial proceedings or direct appeal, and appellant is not entitled to raise an ineffective assistance of appellate counsel claim. See Kegler v. State, 267 Ga. 147, 148 (2) (475 SE2d 593) (1996) (defendant who waives right to counsel and proceeds pro se cannot raise ineffective assistance of counsel claim); Mullins v. Lavoie, 249 Ga. 411, 412-413 (290 SE2d 472) (1982) (“when a criminal defendant elects to represent himself . . . he will not thereafter be heard to assert a claim of ineffective assistance of counsel with respect to any stage of the proceedings wherein he was counsel”).
4. We find no merit in appellant’s allegations that his arrest warrants were unlawful because the affidavits submitted in support of the warrants did not establish probable cause. Here, the March 21, 2011 signed affidavit supporting the arrest warrant for felony murder stated that to the best of the attesting officer’s knowledge and belief, appellant committed the offense of “Murder/Felony” on March 7, 2011 at 3:45 a.m. at “6306 Turnberry Place, Lithonia, Georgia, 30058,” in violation of
human being, by SHOOTING HIM MULTIPLE TIMES.” The March 24, 2011 signed affidavit submitted in support of appellant’s arrest for aggravated assault similarly provided that to the best of that officer’s knowledge and belief, appellant committed the offense of aggravated assault with a weapon on March 7, 2011 at 3:15 a.m. at “6306 Turnberry Place, Lithonia, Georgia, 30058,” in violation of
Contrary to appellant’s assertions, there is no requirement that an affidavit in support of an arrest warrant supply the рrobable cause. See Smith v. Stynchcombe, 234 Ga. 780, 781 (218 SE2d 63) (1975) (rejecting defendant’s effort “to have the probable cause requirements of an affidavit on which a search warrant is issued [cit.], made applicable to arrest warrants” and concluding that Georgia imposes no such requirements on its arrest warrants). See
To the extent appellant argues that his arrest was unconstitutional because the March 21, 2011 arrest warrant was not supported
by probable сause, the record clearly shows that the magistrate issuing this warrant was provided the officer’s affidavit discussed above and was informed by the same officer that a surviving victim had identified appellant from a photographic lineup as one of the shooters. Appellant’s identification and his use of a gun during the shooting were corroborated by the facts and circumstances officers had gathered from witnesses and evidence at the scene of the shooting. This evidence was sufficient to support a finding of probable cause, thus rendering appellant’s arrеst legal. See Illinois v. Gates, 462 U. S. 213, 238-239 (103 SCt 2317, 76 LE2d 527) (1983); Mincey v. State, 251 Ga. 255 (6) (304 SE2d 882) (1983).
5. Our holding in the above division resolves adversely to appellant his arguments regarding evidence he contends should have been suppressed because of his alleged illegal arrest and his allegation that the prosecution engaged in misconduct by proceеding to trial on an invalid arrest warrant.
6. Having reviewed the record, we reject appellant’s claims that the prosecution committed errors and engaged in misconduct entitling him to a new trial. With the exception of his claim related to the State’s reliance on an illegal arrest warrant, which we address above, appellant did not object at trial to the prosecutor’s challenged actions, and therefore, he has not preserved these issues for appeal. See Spickler v. State, 276 Ga. 164, 166-167 (575 SE2d 482) (2003). Moreover, appellant has failed to show any legal right to demand thаt the State test the victims’ hands for gunpowder residue, and contrary to his assertions, we find no evidence that the State failed to disclose evidence it was required to disclose or that it relied on knowingly false testimony at trial.
7. Appellant contends the trial court erred by denying his motion for new trial because he was not allowed to subpoena witnesses for the motion for new trial hearing, he was denied new counsel on motion for new trial and on direct appeal, and the State failed to conduct gunpowder residue tests on the victim’s hands. We disagree.
We find no supрort in the record to support appellant’s assertion that the trial court refused to allow him to subpoena witnesses for the motion for new trial hearing. In fact, the record shows that appellant was given the opportunity to subpoena witnesses for that hearing but that having elected to proceed pro se, he simply failed to take the steps
previously stated, appellant knowingly and intelligently elected to dismiss appellate counsel and chose to proceed pro se. Appellant’s final assertion, that error ocсurred because the State failed to test the victims’ hands for gunpowder residue, fails because he has not shown he had a right to require the State to conduct such testing. Accordingly, this enumeration is without merit.
8. We find no merit in appellant’s remaining enumerations of error. We find no record evidеnce indicating that appellant requested oral argument on his motion to set aside the verdict, and in any event, appellant lodged no objection when the trial court announced at the motion for new trial hearing that it would consider the motion to set aside without oral argument. Thus, this issue has not been preserved for appeal. See Spickler, 276 Ga. at 166-167. Additionally, it was not error to admit the testimony of Destiny McDuffie related to her personal observations as a participant and witness to the crimes. While McDuffie’s testimony clearly was damaging to appellant’s defense, it was relevant to establish appellant’s guilt and the circumstances surrounding the charged crimes. It, therefore, did not improperly place appellant’s character in issue. See United States v. Edouard, 485 F.3d 1324, 1346 (11th Cir. 2007) (testimony explaining how defendant laundered funds formed an “integral and natural part” of witness’s aсcount of the circumstances surrounding the charges for which defendant was indicted and thus, fell outside the scope of Federal Rules of Evidence, Rule 404 (b)); United States v. King, 713 F.2d 627, 631 (11th Cir. 1983) (“in a criminal trial relevant evidence is inherently prejudicial; it is only when unfair prejudice substantially outweighs probative value that [Federal Rule 404] permits exclusion” (emphasis omitted)). See also
Judgment affirmed. All the Justices concur.