Appellant Brodrick Williams was convicted of malice murder, armed robbery, and a firearm offense in connection with the shooting death of Daniel McGee. Appellant contends that the evidence presented at trial was insufficient to support his convictions and that he was deprived of his right to conflict-free counsel. We conclude that the evidence was legally sufficient to support Appellant’s murder and firearm convictions, but not his armed robbery conviction. We also conclude that Appellant has not shown that his trial counsel had an actual conflict of interest that adversely affected counsel’s representation. We therefore affirm in part and reverse in part the judgment of the trial court.
1. (a) Viewed in the light most favorable to the verdicts, the evidence presented at Appellant’s trial showed the following. In the early morning hours of December 9, 2008, Tavaris Samuels, who was 20 years old, was driving in his mother’s car through Harrisburg, Georgia, with Appellant, who was 16, Tanya Landers, and Sierra Burns. Landers, who was Samuels’s girlfriend, rode in the passenger seat while Appellant and Burns rode in the back seat. Appellant was carrying a 9-millimeter pistol, and Samuels was carrying a .22-caliber revolver. When the car passed Daniel McGee, who was riding his bicycle down Starnes Street, Landers pointed out the gold chain necklace that McGee was wearing. Samuels turned the car around, rolled down his window, and stopped the car beside McGee. Landers asked McGee where he got his necklace. While McGee answered, Appellant told Samuels that he wanted the chain, and Samuels replied, “I hope you know what you’re getting into.”
Appellant then got out of the car, walked over to McGee, pointed his gun at McGee, and told McGee to give him the chain. McGee instead grabbed Appellant by the shirt, and the two started tussling. Samuels, Landers, and Burns, who remained in the car, heard a gunshot. After one of the women encouraged Samuels to help Appellant, Samuels got out of the car with his gun drawn, walked over to where Appellant and McGee continued to grapple, and fired a shot into McGee’s head.
A couple hours after the shooting, the Richmond County Sheriff’s Department received a call that a man appearing to be drunk had fallen off his bicycle. A deputy sheriff responded and found McGee on the ground next to his bike, which did not have a seat. McGee had great difficulty responding to the deputy’s questions, but eventually he mumbled his name and shook his head “yes” when the deputy asked if he had fallen off the bike. The deputy called an ambulance, and McGee was taken to a hospital, where he was placed on mechanical ventilation and life support. He died later that day. A .22-caliber bullet was found in McGee’s brain; the cause of his death was a single shot to the head. Investigators determined that the shooting occurred about a block from where McGee was found; he had attempted to ride his
About ten weeks later, Samuels was arrested on other charges, and he gave a statement to law enforcement regarding McGee’s murder, which led to Appellant’s arrest. In a post-arrest interview, the audio recording of which was played at trial, Appellant admitted that he got out of the car, pointed his gun at McGee, and said, “Empty out your pockets”; that his clip fell out of the gun when he was tussling with McGee; and that Samuels then got out of the car and shot McGee in the head.
(b) Appellant and Samuels were indicted together for malice murder, felony murder, armed robbery, and possession of a firearm during the commission of a crime. Prior to trial, on January 13, 2010, Samuels pled guilty to all of those charges as well as robbery under a separate indictment, and he agreed to testify against Appellant as part of a negotiated plea agreement.
2. Appellant argues that the evidence summarized above was insufficient to support his convictions.
When we consider the legal sufficiency of the evidence, 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.” White v. State,293 Ga. 523 , 523 (1) (753 SE2d 115 ) (2013) (citation omitted). Instead, we must view the evidence in the light most favorable to the verdict, id., and we inquire only whether any rational trier of fact might find beyond a reasonable doubt from that evidence that the defendant is guilty of the crimes of which he was convicted. See Jackson v. Virginia,443 U. S. 307 , 319 (III) (B) (99 SCt 2781 , 61 LE2d 560) (1979). With this standard in mind, we now turn to the sufficiency of the evidence in this case.
Walker v. State,
(a) As to the convictions for malice murder and possession of a firearm during the commission of a crime, the evidence showed that Appellant was carrying a pistol, told Samuels that he wanted the gold chain before he approached McGee, and pointed his gun at McGee and demanded the chain; after McGee and Appellant began fighting, Samuels and the two women in the car heard a gunshot. Samuels then got out of the car
(b) There was not, however, sufficient evidence to support Appellant’s armed robbery conviction. “A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . OCGA § 16-8-41 (a). To prove the “taking” element of armed robbery, the State must show both that the defendant caused the “slightest change of location” of the property allegedly taken and that “complete dominion” over the property was transferred at least temporarily from the victim to the defendant. Gutierrez v. State,
Because the evidence showed that McGee refused to comply when Appellant demanded the chain, this case is different from cases like Gutierrez, where the defendant’s complete dominion over the cash within the victims’ cash register was demonstrated when the victims opened and moved the cash drawer after they were directed to do so by the armed intruder. See Gutierrez,
Accordingly, we reverse Appellant’s conviction for armed robbery.
3. Appellant argues that his constitutional right to counsel was violated because his trial counsel was not permitted to withdraw after Samuels, who was represented by an attorney from the same public defender’s office, entered a negotiated guilty plea and agreed to testify at Appellant’s trial.
When defense counsel advises the trial court before or at trial that he is laboring under an actual conflict of interest, the court usually must defer to that representation and appoint new counsel for the defendant, as the attorney is in the best position to be aware of conflicting interests and makes the representation as an officer of the court. See Holloway v. Arkansas,
The trial court may, however, “explor[e] the adequacy of the basis of defense counsel’s representation regarding a conflict of interests without improperly requiring disclosure of the confidential communications of the client.” Holloway,
In this case, however, Appellant’s trial counsel did not represent that he was laboring under a conflict of interest. In his written motion to withdraw, counsel said only that his office represented both Appellant and Samuels and that Samuels had pled guilty and was expected to testify at trial against Appellant. He then explained that a proposed State Bar formal advisory opinion had indicated that conflicts of interest were to be imputed to lawyers in a circuit public defender’s office like they were to lawyers in a law firm.
“Holloway requires state trial courts to investigate timely objections to multiple representation^] Cuyler,
That attorneys from one public defender’s office were representing Appellant and Samuels was not sufficient, standing alone, to demonstrate an impermissible conflict of interest. Indeed, the advisory opinion expressly states that such lawyers are not automatically disqualified; rather, the trial court must determine if, because of the imputed joint representation, “an impermissible conflict of interest exists and cannot be waived or otherwise overcome.” Formal Advisory Opinion No. 10-1,
where counsel is shown to have refrained from raising a potentially meritorious issue due to the conflict; where counsel negotiates a plea bargain for more than one defendant in a case conditioned on acceptance of the plea by all such defendants; or where one of the State’s witnesses was a current client of defense counsel in an unrelated criminal matter, thereby constraining counsel’s ability to cross-examine the witness.
Abernathy,
Nothing in the record indicates that Appellant’s counsel bypassed any meritorious defenses, that Samuels’s plea bargain was negotiated at the expense of Appellant, or that counsel’s ability to cross-examine Samuels was constrained in any way. In fact, Appellant’s counsel conducted a vigorous cross-examination, highlighting Samu-els’s past convictions and inconsistent statements to the police. See Pryor v. State,
Judgment affirmed in part and reversed in part.
Notes
Samuels initially testified that he intended to shoot the ground by their feet to “scare them apart” and the bullet ricocheted and hit McGee in the head, but Samuels eventually admitted that he pointed his gun at McGee and fired the fatal shot.
Samuels was sentenced to life in prison for the murder plus twenty years concurrent for the armed robbery, ten years concurrent for the separate robbery, and five years consecutive for the firearm offense. In exchange for his guilty plea and testimony, the State agreed to dismiss some of the charges against Samuels from the separate robbery indictment and to write a favorable letter on his behalf to the parole board. Samuels also retained the right to file a motion to remold his sentence to suspend his consecutive five-year sentence.
The trial court sentenced Appellant to serve two terms of life in prison, running concurrently, for malice murder and armed robbery, and a consecutive term of five years for the firearm offense. The felony murder verdict was vacated by operation of law. On June 24, 2010, Appellant filed a timely motion for new trial with new counsel, which he amended on May 6 and November 30, 2011. After an evidentiary hearing on February 21, 2013, the trial court denied the motion on March 15, 2016. Appellant filed a timely notice of appeal, and the case was docketed in this Court for the April 2017 term and submitted for decision on the briefs.
We note that Appellant could have been charged with — or the jury could have been instructed on the possibility of returning a verdict for — attempted armed robbery, for which the evidence was readily sufficient, although such a conviction would have carried a lesser sentence than the sentence for the completed crime. See OCGA §§ 16-4-1 (defining criminal attempt); 16-4-3 (“A person charged with commission of a crime may be convicted of the offense of criminal attempt as to that crime without being specifically charged with the criminal attempt in the accusation, indictment, or presentment.”); 16-4-6 (providing the sentence for an attempted crime). The State, however, sought only a conviction for a completed armed robbery.
The question of whether counsel’s representation of the defendant was affected is different from the question of whether the outcome of the trial was affected, which is the issue in most ineffective assistance of counsel cases, see Strickland v. Washington,
The proposed formal advisory opinion was later approved by this Court — with important limitations and clarifications — in Formal Advisory Opinion No. 10-1,
To be sure, an attorney’s representation that he faces a conflict of interest need not be detailed, particularly if the attorney must be vague to protect confidential information. See McFarland v. Yukins,
As the Supreme Court said in Cuy lei".
Holloway reaffirmed that multiple representation does not violate the Sixth Amendment unless it gives rise to a conflict of interest. Since a possible conflict inheres in almost every instance of multiple representation, a defendant who objects to multiple representation must have the opportunity to show that potential conflicts impermissibly imperil his right to a fair trial. But unless the trial court fails to afford such an opportunity, a reviewing court cannot presume that the possibility for conflict has resulted in ineffective assistance of counsel.
Cuyler,