YOUNG v. THE STATE
S20A0859
Supreme Court of Georgia
September 28, 2020
309 Ga. 529
WARREN, Justice.
FINAL COPY
Jermaine Young was convicted of malice murder in connection with the shooting death of Shane Varnadore.1 Young now appeals, arguing that the trial court erred in denying Young‘s motion to suppress his statements made during police interviews, that the trial court erred in admitting a Facebook photo into evidence at trial,
1.
Viewed in the light most favorable to the jury‘s verdicts, the evidence presented at trial showed the following. On March 1, 2016, Varnadore, who was working the closing shift at Papa John‘s, responded to a call to deliver two pizzas, two dessert pizzas, and a two-liter bottle of Pepsi to “Josh” in Unit 10108 at the Wesley Herrington Apartment Complex. The phone number used to place the order — later discovered to be associated with a TracFone — had called Papa John‘s three times that evening: once to inquire about pizza specials, once to place an order, and once to check on the status of the delivery. While Varnadore was delivering the order at approximately 11:30 p.m., he was shot in the chest at the apartment complex. Police responded to the scene and discovered Varnadore lying in a parking space in front of the apartment complex‘s 10000 building, where Unit 10108 is located. Police also found a spent .40-caliber shell casing two parking spots away from Varnadore‘s body
After responding to the scene, detectives obtained the phone number used to call Papa John‘s. Through database searches, they linked Malek Buckley to the TracFone and discovered that Buckley lived in Unit 9301 of the Wesley Herrington Apartment Complex. And through Facebook, detectives learned that Buckley was friends with Young and uncovered Young‘s phone number. Phone records revealed that Varnadore had called the TracFone at 11:27 p.m. and that the TracFone then called Young‘s phone number at 11:34 p.m.
Police obtained a search warrant for Unit 9301, and on March 2, 2016, police executed the search warrant with assistance from SWAT. All five of the unit‘s residents — Reginald Lofton, Buckley (Lofton‘s half-brother), Porsha Porter (Lofton‘s older half-sister), Ciara Harris (Porter‘s girlfriend), and Young — were present when SWAT arrived. They all exited the apartment and were transported to police headquarters to be interviewed. During the search of Unit 9301, police found the TracFone associated with the number that
At trial, the medical examiner testified that Varnadore died from a gunshot wound to the torso. Porter testified that on the night of the incident, Lofton discussed ordering a pizza; later that night while she was in bed, Porter heard a gunshot. When she entered the living room shortly after, she saw Young on the couch, “[l]eaning sideways, like he was like out of breath.” Then, she “stepped outside” of the apartment and saw Lofton “com[e] up the stairs with his headphones on” and “walk[ ] in [to the apartment] with the pizza” before she “locked the door and went back in [her] room and went back to sleep.”
Harris “came [out of the bedroom] just a little bit after” Porter and testified that she saw pizza boxes “[s]tacked ... on top of the corner of the [kitchen] countertop” and that Lofton was in the kitchen and Young was on the couch when she walked out. She also
Detective Matthew Kenck, the lead detective on the case, testified that during Buckley‘s police interview, Buckley stated that on the night of the shooting, “Young had woken him up, and then [Buckley] said that [Young] and [Lofton] had told him” “that they had hit a lick on the pizza man.”2 Young‘s three video-recorded interviews with Detective Kenck were then played for the jury. In the interviews, Young explained that he was visiting from Chicago and had been living with Porter for months. He stated that he had tried to return to Chicago on March 1, but missed the bus, so he was
Young does not contest the legal sufficiency of the evidence supporting his convictions. Nevertheless, consistent with this Court‘s general practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial was sufficient to authorize a rational jury to find Young guilty beyond a reasonable doubt of the crimes for which he was convicted.3 See Jackson v. Virginia, 443 U.S. 307, 318-319 (99 SCt 2781, 61 LE2d 560) (1979);
2.
Young argues that the trial court erred by denying his motion to suppress the statements he made during his police interviews. Specifically, Young argues that his statements should have been excluded because (a) Young never knowingly waived his rights under Miranda4 because he was misinformed about his “immediate right to a free lawyer” and because (b) detectives continued Young‘s interrogation after Young invoked his right to silence.
After the search warrant was executed on Unit 9301 on March 2, 2016, Young was handcuffed, taken to police headquarters to be interviewed by Detective Kenck and Detective Shannon Kulnis, and
YOUNG: So if I ask for a lawyer, y‘all gonna — um — get a lawyer for me?
DETECTIVE KENCK: Not today. No, I don‘t have access to a lawyer.
YOUNG: So that means I would have to wait until y‘all found a lawyer — until y‘all can come talk to me or some s*** like that?
DETECTIVE KENCK: Pretty much.
YOUNG: So how long that could take?
DETECTIVE KENCK: I mean, we, you know — you‘re not being charged with anything, so there — we don‘t — you get appointed with a lawyer when you‘re charged with something, so if you said you wanted a lawyer, and you wanted to go get one and come back and talk to us, that‘s — that‘s up to you.
...
DETECTIVE KENCK: So are you, uh — obviously, you mentioned a lawyer. You understand all of your rights? What they are? Do you want to talk to me without a
lawyer? YOUNG: Just talk, let‘s see what you got to say.
In that first interview, Young denied any involvement in the incident.
Approximately five hours later, Young was interviewed a second time, and he indicated that he still understood his rights under Miranda when asked by Detective Kenck.5 In that interview, Young stated that he had agreed to assist Lofton in robbing the pizza delivery person but claimed that he then changed his mind and walked away from the scene right before Varnadore was shot. At some point during the second interview, when explaining his role in the crimes, Young paused, looked at one of the detectives, and stated: “I‘m done talking to you. If y‘all find this s*** so funny, I‘m done talking.” The detectives explained that they thought it was “funny” because Lofton had given the detectives the same account of that evening‘s events during his interview, but with an important contradiction about who shot Varnadore: whereas Young told
Almost immediately after the detectives exited the room at the conclusion of the second interview, Young requested to speak to the detectives again. A third interview ensued, and Sergeant Millsap replaced Detective Kenck in the interview room. In that interview, although Young maintained that he did not ultimately participate in the robbery, he admitted his further involvement in the initial robbery plan and provided more detail about the scheme to rob the pizza delivery person.
In its order denying Young‘s motion for new trial, the trial court, “[h]aving reviewed the totality of the circumstances,” affirmed its pretrial ruling regarding “the commentary surrounding [Young‘s] right to counsel” and Young‘s “purported invocation of his right to silence.” The trial court concluded that the detectives “properly explained [Young‘s] right to counsel” and that Young “knowingly waived his right to counsel, and did so of his own volition.” The trial court further concluded that Young‘s statements about being “done talking” “did not amount to a[n] ‘unequivocal and unambiguous’ statement that [Young] no longer wished to continue the interview with detectives.”
A defendant may waive his rights under Miranda, “provided the waiver is made voluntarily, knowingly and intelligently.” Miranda v. Arizona, 384 U.S. 436, 444 (86 SCt 1602, 16 LE2d 694) (1966). “Only if the totality of the circumstances surrounding the interrogation reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.” Williamson v. State, 305 Ga. 889, 893 (827 SE2d 857) (2019) (citation and punctuation omitted). “A statement by an interrogating agent that contradicts the Miranda warnings is a circumstance that can indicate a suspect did
Here, Young argues that Detective Kenck‘s statement that “you get appointed with a lawyer when you‘re charged with something” contradicted Miranda‘s warning about the right to counsel such that Young‘s waiver of his rights under Miranda was not knowingly and intelligently made. But Detective Kenck‘s statement was accurate insofar as an accused may be appointed a lawyer once he is charged with a crime under case law interpreting the Sixth Amendment. See Davis v. United States, 512 U.S. 452, 456 (114 SCt 2350, 129 LE2d 362) (1994) (explaining that the “Sixth Amendment right to counsel attaches only at the initiation of adversary criminal proceedings“); see also Shaw v. State, 307 Ga. 233, 246 (835 SE2d 279) (2019).
Additionally, because the record shows that Detective Kenck
(b) Young argues that his statement “I‘m done talking to you. If y‘all find this s*** so funny, I‘m done talking” was an unequivocal invocation of his Fifth Amendment right to remain silent, and that
“An accused may end a custodial interrogation at any time by invoking his constitutional right to remain silent. To do so, a defendant must unambiguously and unequivocally express his desire to invoke that right before officers are required to stop their questioning.” Dozier v. State, 306 Ga. 29, 33 (829 SE2d 131) (2019) (citation and punctuation omitted); see also Berghuis v. Thompkins, 560 U.S. 370, 381 (130 SCt 2250, 176 LE2d 1098) (2010). “That determination depends on whether a defendant articulates a ‘desire to cut off questioning with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be an assertion of the right to remain silent.‘” Dozier, 306 Ga. at 33-34 (citation and punctuation omitted).
Viewed in context, the record here supported the trial court‘s finding that Young‘s statement was not an “unequivocal and unambiguous” invocation of his right to remain silent. Dozier, 306 Ga. at 34. Although the first half of the statement — “I‘m done
3.
Young argues that the trial court erred in admitting a Facebook photo of Young with a gun into evidence.
Prior to trial, the State requested that the trial court rule on the admissibility of a Facebook photo that Detective Kenck showed Young during his interview. The State conceded that it did not know whether the gun in the photo was the murder weapon or even a real gun, but argued that the photo was relevant because Young changed
At trial, Detective Kulnis identified the Facebook photo and indicated that it had been shown to Young during his interviews. Detective Kulnis also testified that she did not know whether the gun in the photo was the murder weapon or even a real gun. Young‘s trial counsel renewed his objection to the admission of the photo, and the trial court admitted it into evidence over objection.
On appeal, Young argues that the photo was not relevant under
Pretermitting whether the trial court‘s admission of the Facebook photo was error, we conclude that, under the circumstances of this case, any error was harmless.10 “The test for
Especially in light of Young‘s own admissions, the value of the Facebook photo to the State‘s prosecution and Young‘s guilt was marginal. See, e.g., Johnson v. State, 301 Ga. 277, 279-280 (800 SE2d 545) (2017). Detective Kulnis‘s admission at trial that she did not know whether the gun depicted in the Facebook photo was the murder weapon or even a real gun also diminished the photo‘s prejudicial effect. Moreover, any harmful effect that the Facebook photo may have had was diminished because it was cumulative of other properly admitted evidence, which included evidence pertaining to other pictures of Young with guns. To that end, in the
Thus, under the circumstances of this case, it is highly probable that the jury‘s verdict was not affected by the admission of the Facebook photo. See Kirby, 304 Ga. at 478-479.
4. Young argues that his trial counsel was constitutionally ineffective for failing to move to suppress the search warrant forFourth Amendment to the United States Constitution to challenge the search warrant; and that if trial counsel had filed a motion to suppress, he would have been successful because the search warrant application lacked probable cause. But because Young has failed to show that the motion to suppress would have been successful had trial counsel filed it, his claim of ineffective assistance fails.
To prevail on a claim of ineffective assistance of counsel, a defendant generally must show that counsel‘s performance was deficient and that the deficient performance resulted in prejudice to the defendant. See Strickland v. Washington, 466 U.S. 668, 687-695 (104 SCt 2052, 80 LE2d 674) (1984); Wesley v. State, 286 Ga. 355, 356 (689 SE2d 280) (2010). To satisfy the deficiency prong, a defendant must demonstrate that his attorney “performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344 (745 SE2d 637) (2013); see also Strickland, 466 U.S. at 687-688. This requires a defendant to overcome the “strong presumption” that trial counsel‘s performance was adequate. Marshall v. State, 297 Ga. 445, 448 (774 SE2d 675) (2015) (citation and punctuation omitted). To carry the burden of overcoming this presumption, a defendant “must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not.” Davis v. State, 299 Ga. 180, 183 (787 SE2d 221) (2016).
To satisfy the prejudice prong, a defendant must establish a reasonable probability that, in the absence of counsel‘s deficient performance, the result of the trial would have been different. See Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.” Lawrence v. State, 286 Ga. 533, 533-534 (690 SE2d 801) (2010). Moreover, “[w]hen trial counsel‘s failure to
Here, after some investigation, Detective Kenck applied for a search warrant of Unit 9301 and wrote the affidavit accompanying the search warrant application, which sought recovery of Papa John‘s pizza boxes, a .40-caliber gun, identification documents belonging to Varnadore, and the phone associated with the number that had called Papa John‘s for the order Varnadore delivered, among other items. A Gwinnett County magistrate judge issued the warrant on March 2, 2016. On appeal, Young argues that he had standing to challenge the search warrant and that the affidavit supporting the search warrant was “fatally defective” because the warrant application lacked a sufficient factual basis to constitute probable cause. At the motion for new trial hearing, Young‘s trial counsel testified that it was his “belief that [Young] did not have
In its order denying Young‘s motion for new trial, the trial court found that “even if trial counsel were wrong that [Young] lacked standing, [Young] has not made a strong showing that a motion to suppress would have been successful” because his “arguments about the validity of [the] search warrant lack merit” and that “[f]ailure to pursue a futile motion is not ineffective assistance of counsel.” The trial court concluded that the information in the application “was sufficient to uphold the search warrant in this case,” and that the “affidavit‘s recitation of facts . . . [was] sufficient to establish a substantial basis for finding that the items sought would be located in [Unit 9301].”
Pretermitting the question of whether Young‘s trial counsel was deficient for concluding that Young did not have standing to challenge the search warrant, Young has failed to meet his burden because he has not made a “strong showing” that the evidence would have been excluded had a motion to suppress been filed. See
In determining whether probable cause exists to issue a search warrant, the magistrate‘s task is “simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Prince v. State, 295 Ga. 788, 792 (764 SE2d 362) (2014) (citation and punctuation omitted). “[T]he test for probable cause is not a hypertechnical one to be employed by legal technicians, but is based on the factual and practical considerations of everyday life.” Smith v. State, 296 Ga. 731, 734 (770 SE2d 610) (2015) (citation and punctuation omitted). “The duty of an appellate court reviewing a search warrant is to determine, based on the totality of the circumstances, whether the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant.” Leili v. State, 307 Ga. 339, 342 (834 SE2d 847) (2019) (citation and punctuation omitted). “A magistrate‘s decision
Young contends that the “warrant application contain[ed] the bare conclusion that . . . Buckley lived in [Unit] 9301, which is insufficient.” But that is not so. The application specified that the phone number associated with the TracFone that placed the Papa John‘s order that Varnadore delivered called Young‘s number - which detectives identified through Facebook - around the time of the murder; that “Detective Kulnis found a call from the Gwinnett County Jail” from Buckley to Young‘s phone number on February 2,
Young also argues that the application was deficient because “there were no facts in the affidavit showing that the items sought would be in [Unit] 9301.” But the application specified (among other things) that the phone towers used to make the call to place the Papa John‘s pizza order “encompass[ed]” the Wesley Herrington Apartment Complex and linked Young‘s phone number to the TracFone that placed the Papa John‘s order and to Buckley and Lofton, who both lived in Unit 9301. The application also stated that a .40-caliber shell casing was recovered from the crime scene and
Based on the totality of the circumstances set forth in the search warrant application, the magistrate was authorized to conclude that the facts stated in the warrant application were sufficient to link the TracFone to the shooting, link Young to the TracFone, and ultimately link Young, Buckley, and Lofton to Unit 9301, and “the magistrate had a substantial basis for concluding that probable cause” therefore existed to issue the search warrant for Unit 9301. Glispie v. State, 300 Ga. 128, 133 (793 SE2d 381) (2016). Accordingly, because Young has not made a “strong showing” that the search warrant for Unit 9301 lacked probable cause and therefore would have been suppressed if counsel had made the motion, Young‘s ineffective assistance of counsel claim fails. See Rickman, ___ Ga. at ___. See also Prince, 295 Ga. at 792.
5. We have also considered the cumulative effect of the pretermitted errors in Divisions 3 and 4 and conclude that “the cumulative prejudicial effect of any such errors does not require a
Judgment affirmed. All the Justices concur.
DECIDED AUGUST 10, 2020.
Murder. Gwinnett Superior Court. Before Judge Rich.
Clark & Towne, David E. Clark, for appellant.
Daniel J. Porter, District Attorney, Samuel R. d‘Entremont, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew D. O‘Brien, Assistant Attorney General, for appellee.