WOFFORD v. THE STATE.
S19A0129
Supreme Court of Georgia
April 29, 2019
305 Ga. 694
FINAL COPY
Briones Ladon Wofford was tried by a Floyd County jury and convicted of murder and other crimes in connection with the fatal shooting of Jimmie Sellers and the wounding of Mardell Blackburn. Wofford appeals, contending that he was denied the effective assistance of counsel. Upon our review of the record and briefs, we find no merit in this claim. We do note, however, that the trial court erred when it failed to merge an aggravated assault and an aggravated battery, both of which are based on the infliction of a single gunshot wound upon Blackburn. We vacate the conviction and sentence for aggravated assault, and we otherwise affirm.1
Viewed in the light most favorable to the verdict, the record shows that Wofford and his girlfriend, Tennah Gueh, went to a nightclub in Rome on the evening of February 27, 2016. Early the next morning, Sellers came to the club with his brother, Denier Floyd. Around 1:45 a.m., Wofford approached Floyd outside the club, where Floyd was talking to some women. Wofford pulled out a pistol, and when he refused to put it away, Floyd and Sellers decided to leave. Floyd and Sellers then drove to a house in south Rome, where Blackburn was living.
When Floyd and Sellers arrived at the home, they found not only Blackburn, but also Wofford in the front yard.2 Sellers confronted Wofford about the incident at the club. The confrontation escalated, and Sellers punched Wofford in the face, knocking him to the ground. Blackburn intervened, and as he began to walk with Sellers across the street, Wofford picked up his pistol (which had fallen out of his pants when he fell) and fired at them. The gunshot struck Blackburn in the head, and he fell to the ground. Wofford then pursued Sellers around a parked car, continuing to shoot at him. When Sellers stopped and asked Wofford if he was “really going to kill [him] like this,” Wofford shot Sellers in the head and fled the scene with Gueh. Blackburn survived the shooting, but Sellers did not.
(a) Wofford does not dispute that the evidence is sufficient to sustain his convictions. But consistent with our usual practice in murder cases, we have reviewed the record to assess for ourselves the legal sufficiency of the evidence. We conclude that the evidence presented at trial, when viewed in the light most favorable to the verdicts, was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Wofford was 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).
(b) Although the jury was authorized by the evidence to find Wofford guilty of both an aggravated assault and an aggravated battery upon Blackburn, the trial court was authorized to enter a judgment of conviction and impose sentence for only one of those offenses. As charged in the indictment, the aggravated assault and the aggravated battery both were based on the single gunshot that struck Blackburn in the head. The trial court should have merged those crimes. See Regent v. State, 299 Ga. 172, 176 (787 SE2d 217) (2016) (aggravated assault merged with aggravated battery where both crimes were based on the same conduct toward the same victim). Because it did not, we vacate the conviction and sentence for aggravated assault.
2.
Wofford claims that he was denied the effective assistance of counsel at trial. To prevail on this claim of ineffective assistance, Wofford must prove that his lawyer performed deficiently at trial and that he was prejudiced by this deficient performance. See Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). To prove deficient performance, Wofford must show that defense counsel performed his duties at trial in an objectively
(a) Wofford first complains that his lawyer failed to ask a testifying police officer about certain photographs that were taken at the crime scene. The record shows that the lawyer asked the officer on cross-examination whether he had taken photographs of jewelry at the crime scene. The officer responded that he did not recall having observed any jewelry at the crime scene. After a few more (unrelated) questions, the lawyer concluded his cross-examination and agreed that the officer could be excused. The lawyer never asked the officer if he could identify two photographs that purportedly depict a ring on the ground at the crime scene. According to Wofford, the ring depicted in those photographs was his and would have supported the justification defense that he asserted at trial.3
But we do not know what testimony the police officer would have given if the lawyer had asked him to identify the photographs. At the hearing on the motion for new trial, Wofford failed to call the officer as a witness, and Wofford failed to otherwise authenticate the photographs at issue. The only witness at the hearing was his trial lawyer, and the lawyer could only speculate about what the officer might have said in response to the line of cross-examination that Wofford says the lawyer should have pursued. But “a defendant cannot use defense counsel‘s testimony about what an uncalled witness had been expected to say in order to establish the truth of that uncalled witness‘s testimony.” Dickens v. State, 280 Ga. 320, 322 (2) (627 SE2d 587) (2006). In the absence of any evidence that the officer could have offered favorable testimony at trial, Wofford cannot show that his lawyer rendered ineffective assistance when he failed to elicit such testimony. See Goodwin v. Cruz-Padillo, 265 Ga. 614, 616 (458 SE2d 623) (1995).
(b) Wofford also complains that his lawyer failed to impeach four witnesses for the prosecution — Floyd, Blackburn, a man who saw Wofford fleeing the scene and called 911, and a woman who saw the shootings — with prior convictions under
As to the woman who saw the shootings, the only prior conviction with which she properly could have been impeached is a misdemeanor conviction for giving a false name to a police officer.5 See
(c) Finally, Wofford complains that his lawyer failed to present evidence at trial that Sellers had a criminal history and was a gang member. But at the hearing on his motion for new trial, Wofford did not come forward with any evidence that Sellers, in fact, was ever in a gang, so it is not clear what evidence of gang membership would have been available to his lawyer at the time of trial (or if such evidence would have been admissible). Wofford did produce evidence at the hearing that Sellers had numerous misdemeanor convictions, a 2007 conviction for felony marijuana possession, and a 2013 conviction for felony possession of drugs or weapons by an inmate.6 But Wofford has not shown that any of these prior convictions would have been admissible at trial. Character evidence about a victim generally “is limited to reputation or opinion, not specific bad acts.” (Emphasis omitted.) Mohamud v. State, 297 Ga. 532, 536 (3) (773 SE2d 755) (2015). See also
Judgment affirmed in part and vacated in part. All the Justices concur.
Decided April 29, 2019.
Murder. Floyd Superior Court. Before Judge Sparks.
Karen H. Brouse, for appellant.
Leigh E. Patterson, District Attorney, Kevin Salmon, Jason M. Rea, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.