Adkins v. State, No. S06A1119.

• Decision Date: 13 July 2006
• Docket Number: No. S06A1119.
• Citation: 632 S.E.2d 650,280 Ga. 761
• Parties: ADKINS v. The STATE.
• Court: Georgia Supreme Court

280 Ga. 761

632 S.E.2d 650

ADKINS v. The STATE.

No. S06A1119.

Supreme Court of Georgia.

July 13, 2006.

COPYRIGHT MATERIAL OMITTED

Jennifer R. Burns, Savannah, for Appellant.

Spencer Lawton, Jr., Dist. Atty., Isabel M. Pauley, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Vonnetta Leatrice Benjamin, Asst. Atty. Gen., for Appellee.

THOMPSON, Justice.

Appellant Kevin Adkins was convicted of malice murder and aggravated assault in the fatal drive-by shooting of Charles Givens, and the firing of his weapon into a crowd of bystanders.¹ Appellant's cousins, Demetric and Marlon Adkins, also participated in the crimes; the three were jointly indicted and tried.² On appeal, appellant asserts, inter alia, that he was entitled to a severance of defendants, and that he was denied effective assistance of trial counsel. Finding no error, we affirm.

In summary, the evidence established that three masked men in a burgundy Delta 88 automobile opened fire in the direction of Givens' house. Givens was struck and killed while getting into his car; another bystander was injured. Others in the area were forced to take cover in order to avoid the gunfire. One bystander testified that he observed Marlon in the approaching vehicle before Marlon covered his face with a mask.

The day after the shooting, Marlon admitted to a friend that he, Demetric, and appellant had all been responsible for the shooting. The evidence also showed that the three perpetrators had been feuding with several men who were frequent visitors at the home of Givens' next-door neighbors, and that those visitors were the intended targets of the shooting.³

1. The evidence was sufficient for a rational trier of fact to have found appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant asserts that he was denied his constitutional right to effective assistance of trial counsel in that counsel failed to (a) offer testimony of certain alibi witnesses; (b) adequately consult with appellant prior to trial; and (c) move to sever his trial from that of his co-defendants. Following an evidentiary hearing, the trial court concluded that counsel rendered reasonably effective assistance during the trial.

To prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel's performance was deficient and that the deficiency so prejudiced defendant that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); [cit.]. The criminal defendant must overcome the strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct. [Cit.] The trial court's findings with respect to effective assistance of counsel will be affirmed unless clearly erroneous.

Patel v. State, 279 Ga. 750, 751, 620 S.E.2d 343 (2005).

(a) Counsel's "decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." (Punctuation omitted.) Wiggins v. Smith, 539 U.S. 510(II), 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). In Escobar v. State, 279 Ga. 727, 730, 620 S.E.2d 812 (2005), we held that trial counsel "was not ineffective for failing to discover a possible alibi witness of whom he was not informed." Here, trial counsel testified at the hearing on motion for new trial that appellant did not inform him of the existence of any alibi witnesses. It is within the trial court's discretion to resolve conflicting testimony between trial counsel and a defendant at a hearing on motion for new trial. Boyd v. State, 275 Ga. 772, 776, 573 S.E.2d 52 (2002); Fitz v. State, 275 Ga. App. 817, 825, 622 S.E.2d 46 (2005). Trial counsel's performance cannot be deemed ineffective for failing to locate alibi witnesses whose existence was not brought to his attention. Escobar v. State, supra.

(b) Appellant asserts that trial counsel was ineffective because he failed to consult with him and never asked appellant where appellant was when the crime occurred. Trial counsel testified that he met with appellant on several occasions; that appellant told him he was not at the scene when the crime took place, but that appellant never provided him with any alibi witnesses. Trial counsel also testified that he reviewed videotapes and other discovery materials with appellant and the two discussed trial strategy. In view of trial counsel's testimony, appellant's claim that trial counsel failed to consult with him is unfounded.

(c) Appellant's assertion that trial counsel was ineffective in failing to move to sever the trial from that of his co-defendants is without merit.

While other counsel, had they represented appellant, may have exercised different judgment, the fact that the trial counsel chose to try the case in the manner in which it was tried and made certain difficult decisions regarding the defense tactics to be employed with which appellant and his present counsel now disagree, does not require a finding that the representation below was so inadequate as to amount to a denial of effective assistance of counsel.

Solomon v. State, 247 Ga. 27, 29, 277 S.E.2d 1 (1980). Here, trial counsel testified that it was his trial strategy to have the co-defendants tried together.⁴ In trial counsel's opinion, the evidence was stronger against the co-defendants, and it was counsel's intent to distance appellant from them. Trial counsel was not ineffective in implementing this strategy. Id.

3. Appellant submits that the trial court erred in admitting into evidence a hat he wore at the time of his arrest which bore the phrase "Fuck...