Wimberly v. StateWimberly v. State
Following a bench trial, appellant William Leroy Wimberly was found guilty of felony murder, aggravated assault, and possession of a firearm during the commission of a felony, in the death of Christopher Strickland.1 He now appeals, asserting that the evidence was insufficient, that he received ineffective assistance of counsel, and that he was entitled to a new trial based on newly discovered evidence. For the reasons set forth below, we conclude these assertions are without merit and affirm.
Viewed in the light most favorable to the verdict, the evidence showed
A few minutes after Brittney left, the victim went to Wimberly‘s residence, and after a while, the two returned to Josh and Brittney‘s home where Wimberly apologized to Josh for his earlier behavior. Not long after Wimberly, Josh, and the victim sat down to talk, Wimberly and Josh began arguing again. Wimberly pulled out a pocket knife, but Josh and the victim were able to disarm him and eject him from the home.
About 15 minutes later, Wimberly returned to Josh and Brittney‘s home in his stepbrother‘s truck.2 The victim went outside to talk with Wimberly while
Wimberly‘s father, who lived nearby with Wimberly, heard the commotion and came running. Josh made him get on his knees and held Wimberly and his father at gunpoint. Seconds later, a passerby pulled his vehicle up to the house. Josh ordered the driver out and instructed the passenger
1.
Wimberly argues that the evidence is insufficient that he committed aggravated assault because there was no evidence that he is the one who shot the victim. He points to Josh‘s statement to police that Josh did not see him shoot the victim, and that Josh, the victim, and Wimberly were all struggling over the gun when he saw blood.
On appeal from a bench trial resulting in a criminal conviction, we view all evidence in the light most favorable to the trial court‘s verdict, and the defendant no longer enjoys the presumption of innocence. We do not re-weigh testimony, determine witness credibility, or address assertions of conflicting evidence; our role is to determine whether the evidence presented is sufficient for a rational trier of fact to find guilt beyond a reasonable doubt.
(Citation and punctuation omitted.) Dougherty v. State, 341 Ga. App. 120, 123 (799 SE2d 257) (2017).
Josh testified that when he jumped off the front porch, the victim and Wimberly “had already started to separate. And I went to jump on [Wimberly] and that‘s when I saw the gun in his hand.” Josh testified that he did not hear a
2.
Wimberly asserts that his trial counsel was ineffective.
To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC[t] 2052, 80 LE2d 674) (1984), an appellant must show both that counsel‘s performance was deficient and that the deficient performance prejudiced the defense.
(Citation and punctuation omitted.) Dunn v. State, 291 Ga. 551, 553 (4) (732 SE2d 524) (2012).
(a) Wimberly argues that counsel should have called four witnesses who testified at the hearing on the motion for new trial. “Decisions about which witnesses to call at trial are matters of trial strategy and tactics, and such
The first witness, who was working at a convenience store across the road on the night of the shooting, testified that she heard a commotion and then a gunshot, looked out the door and saw a man on his knees with another man holding a gun on him. She explained that five or ten minutes later, she heard two more gunshots. She did not recall seeing anyone lying on the ground. A second witness, who worked at the same convenience store, testified that she heard a gunshot, and when she looked across the street, she saw “one man standing with a gun and two on their knees,” and moments later heard a second shot while she was on the phone with 911. This witness also testified that she did not see anyone lying on the ground. Trial counsel testified that he did not call these witnesses because he did not believe that their testimony “would add [to] or help” the defense. We cannot say that counsel‘s decision not to call them was unreasonable in light of the fact that neither witness saw anyone get shot, and the witnesses provided different testimony about the number of shots they heard
Wimberly argues that counsel should have called a third witness who testified at the hearing on the motion for new trial that when he pulled up to the home during the incident, Josh ordered the witness out and held him at gunpoint on his knees until police arrived. The witness explained that he observed both Wimberly and the victim lying on the ground to his left while the witness was on his knees in front of the truck Wimberly drove. Wimberly asserts that this evidence contradicts an investigator‘s testimony “that nothing happened in or near the truck.” While the investigator did explain that he did not believe that the victim was shot in the truck because no blood was found there, he did not testify that nothing happened near the truck. In fact, he testified that the truck was parked close to the porch — about 15 feet away from where the victim was
Finally, Wimberly argues that trial counsel should have called his father, who testified at the hearing on the motion for new trial that Wimberly did not appear upset on the night of the shooting, and that there was no indication that
(b) Wimberly asserts that trial counsel was ineffective in failing to object to the introduction of prior difficulties between him and Josh because the evidence was irrelevant and the State failed to comply with the notice
3.
Wimberly argues that the trial court abused its discretion in denying his motion for new trial based on newly discovered evidence.
A new trial may be granted in any case where any material evidence, not merely cumulative or impeaching in its character but relating to new and material facts, is discovered by the applicant after the rendition of a verdict against him and is brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial.
This Court in Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792) (1980), set forth the requirements that a defendant must show to obtain a new trial on newly discovered evidence:
(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.
See Glover v. State, 296 Ga. 13, 15 (2) (764 SE2d 826) (2014).
At the hearing on the motion for new trial, Wimberly produced the testimony of a witness, his father‘s brother-in-law, who had done some work on
Assuming without deciding that Wimberly has satisfied the first five requirements of Timberlake, this witness‘s post-trial testimony would only have had the effect of impeaching Josh‘s testimony. See Chance v. State, 291 Ga. 241, 245-246 (6) (728 SE2d 635) (2012) (testimony presented at new trial hearing — that co-indictee confessed to witness that he, not the defendant, shot victim — was impeaching testimony and did not establish as fact that co-indictee‘s trial testimony was knowingly and wilfully false). Because Wimberly failed to satisfy the sixth requirement of Timberlake, the trial court did not err
Judgment affirmed. All the Justices concur, except Grant, J., who concurs in judgment only as to Division 3.
Decided October 16, 2017.
Murder. Decatur Superior Court. Before Judge Cato.
Meghan A. Lane, for appellant.
Joseph K. Mulholland, District Attorney, Moruf O. Oseni, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Ashleigh D. Headrick, Assistant Attorney General, for appellee.