WILLIAMS v. THE STATE
S23A1159
In the Supreme Court of Georgia
Decided: January 17, 2023
PETERSON, Presiding Justice.
NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court‘s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court‘s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
Eric Williams appeals his convictions and sentence for malice murder and other offenses, stemming from the shooting death of Sean Brooks and non-fatal shooting of Michael Waters outside of a Chatham County nightclub in 2017.1 Williams argues that the trial
court erred by (1) denying Williams‘s motion to suppress evidence extracted from his cell phone; (2) admitting a YouTube video offered as a demonstrative aid; (3) admitting evidence of Williams‘s refusal to submit to a gunshot residue test; and (4) resentencing Williams sua sponte under the recidivist provision of
The evidence presented at trial may be summarized as follows.2 In October 2017, the defendant, Williams, was dating and living with Charietta Williams (“Charietta“). Charietta had previously dated the victim, Brooks, and the two had a son known as “Baby Sean.” Charietta and Brooks frequently argued about the care of Baby Sean. Williams had negative feelings toward Brooks and had made threats against him, telling Charietta that he wanted to murder Brooks because of the way he disrespected her. Early in the
morning of October 8, 2017, Brooks was fatally shot outside a Chatham County nightclub. Police responded around 2:50 a.m. based on a 911 call and an automatic notification system that detects the sound of a gunshot in a given area.
Another patron of the bar, Waters, was shot in the leg during the shooting; he survived. Waters reported that just prior to the shooting, he observed the shooter and another man arguing with Brooks. Brooks told Waters that the dispute was over “some kind of female problem” or, more specifically, a “baby momma.”
Christian Kelly testified that she drove Williams and Williams‘s father to the club that night. V7-117-118, 121-123, 129 She reported seeing Williams with a black gun in a holster on his hip prior to the shooting. Immediately after the shooting, Williams and his father ran to Kelly‘s car, and Kelly drove them away from the scene. In the car, Kelly heard Williams say to his father, “Dad, I think I shot him.”3 Kelly dropped off Williams‘s father and drove
Williams to the hotel where Charietta was working. Charietta reported seeing a gun on Williams‘s hip when he arrived at the hotel. According to Charietta, while Williams and Charietta were driving from the hotel to her home, Williams informed Charietta that he shot Brooks.
Iesha Reed, a bystander who knew neither Williams nor Brooks, testified that she heard men outside the club arguing about “something pertaining to a child” before she heard gunshots. She identified Williams as the shooter in a photographic lineup.
1. Williams argues that the trial court erred by denying his motion to suppress evidence seized from his cell phone. Assuming without deciding that the admission of this evidence was error, we conclude that any error was harmless.
As established at a pre-trial hearing, Detective Jason Manley proceeded to Charietta‘s home on the day of the shooting. Detective Manley testified at the hearing that, by this point, Kelly already had implicated Williams in the shooting and indicated that she believed Williams would be found with Charietta. The detective testified that he encountered Williams at the house and noticed that “as soon as our eyes made contact, [Williams] immediately started manipulating” his cell phone. Williams and Charietta agreed to go to police headquarters for interviews. The detective “seized [Williams‘s cell phone] from his person” before they left Charietta‘s home. After placing Williams under arrest following the interview, police obtained a search warrant for the phone. The affidavit offered in support of the warrant application detailed information that implicated Williams in the shooting and made statements about the importance of cell phones in criminal investigations, but the affidavit did not mention any observation about Williams “manipulating” the cell phone or offer any particular statements about Williams‘s cell phone‘s connection to the crime. The warrant itself was rather sparse, stating by way of limitation only that “[t]here is now located [on Williams‘s phone] certain instruments, articles, persons, or things, namely: Information and data which are being possessed in violation of Georgia Law(s): . . .
Citing cases largely decided under the Fourth Amendment, Williams argues that the evidence should have been suppressed because the cell phone was seized from his hands without probable cause and was searched based on an overly broad search warrant that was not supported by probable cause. Although Williams did preserve his claim of error as to the seizure of the cell phone, it does not appear that Williams raised below all of his arguments about the search of the phone.4 And the parties’ arguments (which are not well developed in the record below or well briefed by the parties) raise complex issues about cell phone seizures and searches, such as the extent to which a warrant application must connect a phone to be searched to the underlying crime, and the sort of particularity needed in a warrant for a cell phone search. See, e.g., State v. Wilson, 315 Ga. 613, 628 (884 SE2d 298) (2023) (Pinson, J., concurring) (“[I]f this generic ‘criminals use cell phones, too’ logic is enough for
probable cause to get a warrant to search a suspect‘s cell phone - it is hard to imagine a case in which police cannot get that warrant.“).5 But we need not resolve these difficult questions. Even assuming that Williams preserved all of his arguments about the seizure and search of his cell phone, the strength of the State‘s case against Williams and the limited value of the evidence extracted from the cell phone render any error harmless.
“[A]n error of constitutional magnitude may be deemed harmless if the State can prove beyond a reasonable doubt that the error did not contribute to the verdict[.]” Johnson v. State, 310 Ga. 685, 696 (4) (c) (853 SE2d 635) (2021) (citation and punctuation omitted). The State‘s case against Williams was strong. The jury heard evidence that Williams had negative feelings toward Brooks, threatened Brooks, and told Charietta that he wanted to kill Brooks
because he perceived Brooks as disrespecting her.6 Consistent with the notion that the shooting stemmed from a dispute between Williams and Brooks over the mother of Brooks‘s child, the surviving victim (Waters) and a
Given this strong evidence that Williams shot Brooks, the value of the evidence extracted from Williams‘s cell phone was minimal. Among the evidence extracted from the phone, Williams on appeal specifically cites a photograph of himself with a firearm and a “closeup” of the weapon; a text message from Williams to his father at 1:33 a.m. on the morning of the shooting that read, “Um
parked on the Side of the club . . . UM WIT YA . . . 312“; and another text message at 6:32 a.m. that morning from Williams‘s father that read, “One dead . . . one shot n da leg.” Although the State attempted to link the photograph of Williams carrying a gun taken from his phone to the gun that Kelly and Charietta described Williams as carrying, the description given — a black gun in a holster — was rather general, and thus the photograph did not definitively link Williams to the shooting even if that testimony were credited by the jury. And the photograph extracted from Williams‘s phone showing him carrying a gun on his person is somewhat cumulative of an admitted photograph taken from Charietta‘s phone that also appeared to show him carrying a gun in a holster, minimizing the prejudicial impact of the photograph taken from Williams‘s phone. See Scott v. State, ___ Ga. ___ (2) (___ SE2d ___) (Case No. S23A0861, decided Dec. 19, 2023) (concluding that assumed constitutional error was harmless where evidence in question was cumulative of other, properly admitted evidence).
As for the other evidence extracted from the phone that Williams cites, the text message from Williams to his father indicating that he was at a club on the night of the shooting had little marginal benefit to the prosecution given the other eyewitness evidence placing Williams at the club and Williams‘s statements that he shot Brooks. And the later text in which Williams‘s father appeared to report the extent of injuries suffered by victims of the shootings was of little probative value.
In short, “[Williams‘s] claim fails because, even if he could show that the trial court erred in this regard, any such error was harmless beyond a reasonable doubt.” Johnson, 310 Ga. at 696 (4) (c). The evidence that Williams now argues was erroneously admitted after being extracted from his phone was of minimal value to the prosecution in the light of the other, strong evidence against him. “We thus see no reasonable possibility that this evidence may have contributed to the verdict,” and Williams‘s contention therefore fails. Id. at 696-697 (4) (c) (citation and punctuation omitted); see also Young v. State, 309 Ga. 529, 537-538 (3) (847 SE2d 347) (2020) (any error in admitting photograph depicting defendant with a gun was harmless, because the value of the photograph was marginal in the light of the other evidence of guilt, and the photograph was cumulative of other properly admitted evidence); Ensslin v. State, 308 Ga. 462, 471 (2) (d) (841 SE2d 676) (2020) (“Even an error of constitutional magnitude . . . may be deemed harmless if the State can prove beyond a reasonable doubt that the error did not contribute to the verdict, such as when the evidence at issue is cumulative of other properly-admitted evidence or when the evidence against the defendant is overwhelming.” (citation and punctuation omitted)).
2. Williams argues that the trial court erred by admitting a video as a demonstrative aid purportedly to illustrate the concept of “selective attention.” Assuming without deciding that the trial court erred in that regard, we conclude that any such error was harmless.
Shortly before the trial testimony of Detective Manley, the State informed the court that it intended to introduce a short video — the detective would testify that the video was “pulled from the Internet” — involving cups and a piece of chocolate, purportedly to help the detective explain the concept of “selective attention,” which the prosecutor described as
The nature of Williams‘s argument challenging the admission of this evidence on appeal is not entirely clear. He complains that “[t]he State did not tender [Detective] Manley as an expert to authenticate the experiment[,]” saying that authentication “requires more than establishing a demonstration was found on YouTube.” He argues that “[t]he demonstration in question did not have substantial and reasonable similarity to the facts at issue in the case at bar.” He also references the standard found in
But even assuming error in admission of the demonstrative aid, it was harmless. See Morrell v. State, 313 Ga. 247, 261 (2) (c) (869 SE2d 447) (2022) (“It is fundamental that harm as well as error
must be shown for reversal.“). “The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict.” Id. (citation and punctuation omitted). Given the lack of similarity between the events at issue in this case and what was depicted on the video — which involved merely cups and chocolate — there was little danger that the jury would consider the video to be some sort of reenactment of the events in question. And given that all the video appears to convey is the unremarkable proposition that an observer may sometimes miss something in the face of multiple simultaneous events or stimuli, it is highly probable that the video did not contribute to the verdict. This is especially true given the strength of the evidence, as detailed above. Therefore, any error in its admission is not a basis for reversal. See Jivens v. State, ___ Ga. ___, ___ (2) (___ SE2d ___) 2023 WL 8721065, at *5 (No. S23A1078, decided Dec. 19, 2023) (any error in admission of demonstrative photographs of model firearms was harmless given the compelling evidence of guilt and the limited prejudicial effect from the photographs); Williams v. State, 302 Ga. 147, 155 (4) (805 SE2d 873) (2017) (any error in allowing State to engage in a demonstration regarding the crime was harmless, as any effect that the demonstration may have had on the jury “would have been minimal compared to the effect of the properly-admitted evidence before it“).
3. Williams argues that the State violated his Georgia constitutional right against compelled self-incrimination, see
With no defense objection, the State elicited Detective Manley‘s testimony that, during his October 8, 2017, interview of Williams,
Because Williams did not object to the admission of evidence of his refusal to submit to GSR testing, the admission of the evidence is reviewed only for plain error, which requires, among other things, a showing of an error that is clear or obvious. See State v. Herrera-Bustamante, 304 Ga. 259, 263-264 (2) (b) (818 SE2d 552) (2018). “An error is plain if it is clear or obvious under current law. An error cannot be plain where there is no controlling authority on point.” Id. at 264 (2) (b) (citation and punctuation omitted). “[A]n error is not plain under current law if a defendant‘s theory requires the extension of precedent.” Id. (citation and punctuation omitted). Because Williams cannot show that admission of evidence of his refusal was an error that was clear and not open to reasonable dispute, he cannot show plain error.
Williams acknowledges that our precedent holds that admission of expert testimony about the results of GSR testing of a defendant does not violate Paragraph XVI. See Tuff v. State, 278 Ga. 91, 94 (3) (597 SE2d 328) (2004); Strickland v. State, 247 Ga. 219, 225 (18) (275 SE2d 29) (1981). The question of whether evidence of his refusal to submit to such testing may be admitted consistent with Paragraph XVI raises a different, albeit related, question. In support of his argument that such evidence was inadmissible, Williams points to our decision in Elliott v. State, 305 Ga. 179 (824 SE2d 265) (2019), wherein we held that Paragraph XVI barred the State from using a defendant‘s refusal to submit to a chemical breath test against the defendant in her criminal trial. Id. at 179-180. But that holding was based on the conclusion in Elliott‘s precursor, Olevik v. State, 302 Ga. 228 (806 SE2d 505) (2017), that submission to such a chemical breath test was an affirmative act to which Paragraph XVI applied given the deep lung breath and sustained strong blowing necessary for such a breath test, which requires a certain level of cooperation. See Elliott, 305 Ga. at 189-190 (III); Olevik, 302 Ga. at 243-244 (2) (c) (iii). Whether refusal to submit to swabbing of one‘s hands is similarly protected by Paragraph XVI presents a different question, and Williams points to no decision of ours that has decided it. Cf. Olevik, 302 Ga. at 243 (2) (c) (iii) (whether a test falls within Paragraph XVI‘s prohibition on compelling a suspect to perform an incriminating act “depends on the details of the test“). Williams‘s argument thus would require an extension of, if not a departure from, existing case law. And that is fatal to Williams‘s argument under plain-error review. See Herrera-Bustamante, 304 Ga. at 266 (2) (b).
4. Williams argues that the trial court committed error by sua sponte resentencing him under the recidivist provision found in
In Williams‘s motion for new trial, he asserted, among other things, a merger error with respect to the firearms offenses. In its May 10, 2023, order otherwise denying the motion for new trial, the trial court agreed with Williams‘s merger argument. The following day, the trial court issued an amended final disposition form, merging all but one of the possession of a firearm during the commission of a crime counts into the possession of a firearm by a convicted felon during the commission of a crime count. he amended form specified that the sentence for malice murder was “[l]ife imprisonment pursuant to
The parties apparently assume that the reference to
A sentence of life without parole was the sentence mandated by statute in this case. See
To the extent that Williams complains of lack of notice,
5. Finally, Williams argues that his trial counsel was ineffective in several respects. In particular, he argues that counsel was ineffective for (a) failing to properly allege applicable grounds in Williams‘s motion to suppress the evidence extracted from Williams‘s cell phone, (b) failing to object or ask for curative instructions when a prospective juror referred to Williams as an inmate during voir dire, (c) interjecting into the trial evidence of Williams‘s invocation of his right against self-incrimination, (d) failing to object to evidence of Williams‘s refusal to submit to GSR testing, and (e) failing to request the redaction of the indictment to exclude certain references to a prior conviction. He also argues
To succeed on his claim of ineffective assistance of counsel, Williams must show that counsel‘s performance was deficient and that counsel‘s deficient performance prejudiced Williams‘s defense. See Strickland v. Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). “If [a defendant] fails to establish one of these two prongs, we need not examine the other.” Payne v. State, 314 Ga. 322, 328 (3) (877 SE2d 202) (2022) (citation and punctuation omitted). “To show deficient performance, the defendant must demonstrate that counsel performed counsel‘s duties in an objectively unreasonable way, considering all of the circumstances and in the light of prevailing professional norms.” Id. at 328-329 (3). “To establish prejudice, [a defendant] must show that there is a reasonable probability that, but for counsel‘s unprofessional error, the result of the proceeding would have been different.” Id. at 329 (3) (citation and punctuation omitted). “In reviewing a ruling on a claim of ineffective assistance of counsel, we defer to the trial court‘s findings of fact unless they are clearly erroneous, but we apply the law to the facts de novo.” Id. (citation and punctuation omitted).
(a) Williams argues that trial counsel was ineffective by failing properly to allege applicable grounds in Williams‘s motion to suppress the evidence extracted from Williams‘s cell phone. In particular, he argues that counsel should have argued below that the extraction of data from the phone was not supported by probable cause and that there was a failure to limit the scope of the extraction. But we have concluded above, applying the higher standard applicable to consideration of harm from preserved constitutional error, that there is no reasonable probability that the evidence extracted from Williams‘s phone may have contributed to the verdict. Williams therefore cannot show prejudice from any failure on counsel‘s part to allege grounds additional to the ones he in fact raised in the motion to suppress this evidence.
(b) Williams argues that trial counsel was ineffective by failing to object or ask for curative instructions when a prospective juror referred to Williams as an inmate during voir dire. We conclude that Williams cannot show that he was prejudiced by any deficient performance of counsel in this regard.
During voir dire at the May 2019 trial of the case, when the court‘s clerk asked the panel about impartiality, Juror No. 49 raised his hand and stated that he may have interacted with Williams in his role as a jail chaplain. During follow up questioning by the prosecutor, Juror No. 49 said he did not “recall specifically what [his] interaction was with this particular inmate[.]” Defense counsel did not seek a remedy for these comments. The juror was not selected for the petit jury.
Without deciding whether counsel performed deficiently in this regard, we conclude that Williams cannot show prejudice. Even assuming that any juror who ultimately was empaneled mistakenly took Juror No. 49‘s remark to be evidence, “passing references to [a defendant‘s] incarceration [do] not place his character into evidence, particularly since a jury could reasonably assume that a defendant charged with murder would be arrested for the crime.” Miller v. State, 295 Ga. 769, 776 (3) (a) (764 SE2d 135) (2014) (concluding that appellant failed to demonstrate that he was harmed by the trial court‘s failure to issue sua sponte curative instructions in response to witnesses’ references to appellant‘s incarceration).
(c) Williams argues that counsel was ineffective in that counsel interjected into the trial evidence of Williams‘s invocation of his right against self-incrimination, by eliciting testimony that Williams exercised his right to an attorney and by referencing this invocation in closing argument. We again conclude that Williams cannot show he was
During cross-examination of Detective Manley, defense counsel asked about the detective‘s interview of Williams, eliciting testimony that Williams “freely talked” for some period of time but then invoked his right to counsel and “stopped the interview.” In closing argument, defense counsel referenced Williams‘s invocation of his right to counsel during the interview.
Even assuming counsel performed deficiently in this regard, Williams has not shown that he was prejudiced as a result. Evidence that a defendant asks for an attorney and ends an interview is not necessarily prejudicial. See Martin v. State, 290 Ga. 901, 903 (1) (a) (725 SE2d 313) (2012) (“Martin‘s request for an attorney did not negatively point directly at the substance of Martin‘s claim of self-defense or otherwise substantially prejudice Martin.“). Here, particularly given the strong evidence of Williams‘s guilt presented by the State, Williams has not shown that the result of his trial would have been different but for counsel‘s actions in this regard.
(d) Williams argues that trial counsel was ineffective by failing to object to testimony that Williams refused to submit to GSR testing. We disagree. As discussed above, the suggested objection would have called for an extension of or a change in existing law. Failure to make an objection that would call for an extension of or a change in the law is not deficient performance. See Lowe v. State, 314 Ga. 788, 796 (2) (b) (879 SE2d 492) (2022) (“[I]t is well settled that a criminal defense attorney does not perform deficiently when he fails to advance a legal theory that would require an extension of existing precedents and the adoption of an unproven theory of law.” (citation and punctuation omitted)); Rhoden v. State, 303 Ga. 482, 486 (2) (a) (813 SE2d 375) (2018) (“Counsel is not obligated to argue beyond existing precedent.” (citation and punctuation omitted)).
(e) Williams argues that trial counsel was ineffective by failing to request the redaction of the indictment to exclude certain references to his prior conviction for possession of a firearm during the commission of a crime. Again, Williams cannot show how this failure changed the outcome of the trial.
The possession of a firearm during the commission of a crime counts, Counts 5, 6, 7, and 10, in addition to alleging that Williams possessed a firearm while committing various crimes against Brooks and Waters on October 8, 2017, alleged that on March 13, 2008, Williams had been convicted of a violation of
Williams argues that trial counsel was deficient for failing to request redaction of the references in Counts 5, 6, 7 and 10 to Williams‘s previous conviction for a violation of
(f) Williams finally argues that the cumulative prejudicial effect of trial counsel‘s failures deprived him of a fair trial. See Schofield v. Holsey, 281 Ga. 809, 811 (II) n.1 (642 SE2d 56) (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 17 (1) (838 SE2d 808) (2020). We disagree. As discussed above, the marginal value of the evidence extracted from Williams‘s cell phone was minimal, comments about Williams‘s incarceration or invocation of his right to counsel were not very prejudicial, and Williams cannot show how he was harmed by any failure on counsel‘s part to seek redaction of the reference to a violation of
In addition to assuming some deficient performance by trial counsel, we have assumed two trial court errors of an evidentiary nature — admission of the extraction from Williams‘s phone and admission of the demonstrative video on selective attention — and determined that each error was harmless. Although Williams argues that we should consider the collective prejudice of alleged instances of deficient performance by trial counsel, and although he cites Lane and its progeny, Williams has made no argument that we should apply a cumulative error review that encompasses trial court errors. See Lane, 308 Ga. at 17 (1). Nevertheless, even assuming that we must sua sponte apply a cumulative error review under Lane, we conclude that Williams has failed to establish that the combined prejudicial effect of these assumed trial court errors and assumed deficient performance of trial counsel denied him a fundamentally fair trial. See, e.g., Huff v. State, 315 Ga. 558, 568 (6) (883 SE2d 773) (2023) (rejecting cumulative error claim “because Appellant ha[d] not demonstrated that the prejudicial effect of the assumed trial court errors and ineffective assistance denied him a fundamentally fair trial, given the strong evidence against him[.]“).
Judgment affirmed. All the Justices concur.