Aikens v. State
| Decision Date | 01 June 2015 |
| Docket Number | No. S15A0404.,S15A0404. |
| Citation | 773 S.E.2d 229,297 Ga. 229 |
| Parties | AIKENS v. The STATE. |
| Court | Georgia Supreme Court |
Gerard Bradley Kleinrock, Decatur, for appellant.
Patricia B. Attaway Burton, Deputy Atty. Gen., Matthew Blackwell Crowder, Asst. Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Paul L. Howard, Jr., Dist. Atty., Peggy Ann Katz, Marc A. Mallon, Paige Reese Whitaker, Asst. Dist. Attys., for appellee.
Maurice Aikens was tried by a Fulton County jury and convicted of murder and several other crimes in connection with the fatal shooting of Kyle Moore. Aikens appeals, contending that the evidence is insufficient to sustain one of his convictions, that the trial court erred when it responded to a question submitted by the jury, and that he received ineffective assistance of counsel. We see no error, and we affirm.1
1. Viewed in the light most favorable to the verdict, the evidence shows that, on the evening of May 3, 2007, Aikens, his friend Edward Wallace, and his girlfriend Ladasha Eison conspired to commit a robbery at a bus stop near the Lakewood MARTA station. When Moore—a 17–year–old high school student who was unknown to the assailants—arrived at the bus stop, Wallace and Aikens ran up to him while Eison stood as a lookout. Wallace pointed a gun at Moore, and Wallace and Aikens took Moore's wallet (which contained no cash) and his cell phone. Wallace then shot Moore multiple times, including in the chest, and Moore died from his wounds
soon thereafter. Aikens, Wallace, and Eison met up later that evening at Wallace's home, and the men agreed that Aikens would keep Moore's cell phone and Wallace would keep his wallet. Aikens later told Eison that he had sold the cell phone, and she saw the cash that he had received for it.
Eison told several of her co-workers about the crimes, and one of her co-workers contacted the police. When police officers interviewed Eison, she initially lied to them, but she later admitted to the roles played by Aikens, Wallace, and herself in the robbery and murder. And ballistics testing confirmed that a 9mm handgun found by police officers in Wallace's bedroom was the gun used to kill Moore.
Aikens claims that the evidence is insufficient to support his conviction for the unlawful possession of a firearm by a convicted felon because the evidence showed that Wallace never allowed him to exercise any control over the gun. Even so, the evidence showed that Aikens and Wallace conspired to commit a robbery at the bus stop with a firearm. Because the foreseeable acts of any one of the co-conspirators in furtherance of the conspiracy might properly be attributed to all of the co-conspirators, the evidence was sufficient to show that Aikens was in constructive possession of Wallace's gun. See Murray v. State, 309 Ga.App. 828, 830, 711 S.E.2d 387 (2011) ; Davis v. State, 287 Ga.App. 783, 785(1), 653 S.E.2d 107 (2007) ; Moses v. State, 265 Ga.App. 203, 213(6)(c), 593 S.E.2d 372 (2004).
Aikens does not dispute that the evidence is legally sufficient to sustain his other convictions. We nevertheless have independently reviewed the record, with an eye toward the legal sufficiency of the evidence, and we conclude that the evidence adduced at trial was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Aikens was guilty of all of the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Aikens claims that the trial court erred when it responded to a question submitted by the jury. During its deliberations, the jury asked if the instruction on the count charging Aikens and Wallace with unlawful possession of a firearm during the commission of a felony (which stated that possession included having a firearm “within arm's reach”) also applied to the “other counts.” After consulting with the lawyers for Aikens and Wallace as well as the prosecuting attorney, the trial court proposed instructing the jurors that “they have received all the applicable law ... and it is for them to decide this case based upon the law as I've given them ... and the facts as they find them to be.” Aikens's lawyer said that he had no suggestions to improve the proposed response, and the trial court provided that response to the jury.
Here, even assuming that Aikens did not invite any error when his lawyer said that he had no suggestions about the trial court's proposed response to the jury's question, see Hicks v. State, 295 Ga. 268(2), 759 S.E.2d 509 (2014), his failure to object to the response means that “appellate review is available only if the court's response constituted plain error affecting the substantial rights of the parties.” Redding v. State, 296 Ga. 471, 473(2), 769 S.E.2d 67 (2015) (citation omitted). The trial court's initial charges to the jury were correct. And despite Aikens's claim that the jury may have convicted him of unlawful possession of a firearm by a convicted felon based merely upon his spatial proximity to Wallace's gun, it seems highly likely that he was convicted of that crime based upon his constructive possession of the firearm held—and used in furtherance of the planned robbery—by his co-conspirator, as described in Division 1. As a result, there is no reason to believe that the trial court's failure to provide a more specific answer to the jury's question affected his “substantial rights” in any way. See OCGA § 17–8–58(b).
3. Finally, Aikens contends that he was denied the effective assistance of counsel at his trial. To prevail on his claim of ineffective assistance, Aikens must prove both that the performance of his lawyer was deficient and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U.S. 668, 687(III), 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove that the performance of his lawyer was deficient, Aikens must show that the lawyer performed his duties at trial in an objectively unreasonable way, considering all the circumstances, and in the light of prevailing professional norms. Id. at 687–688(III)(A), 104 S.Ct. 2052. See also Kimmelman v. Morrison, 477 U.S. 365, 381(II)(C), 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). And to prove that he was prejudiced by the performance of his lawyer, Aikens must show Strickland, 466 U.S. at 694(III)(B), 104 S.Ct. 2052. See also Williams v. Taylor, 529 U.S. 362, 391(III), 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). This burden, although not impossible to carry, is a heavy one. See Kimmelman, 477 U.S. at 382(II)(C), 106 S.Ct. 2574. We conclude that Aikens has failed to carry his burden.
Aikens claims that he was denied effective assistance because his trial lawyer allowed the State to introduce evidence of some of his prior crimes.2 We disagree. First, Aikens complains that—instead of stipulating that he had been convicted in 2005 of unlawful possession of a firearm, which was the predicate felony listed in the count of the indictment charging him with unlawful possession of a firearm by a convicted felon—his trial lawyer allowed the State to introduce evidence about other crimes that Aikens had been accused of committing. Indeed, the record shows that, near the close of evidence, the prosecuting attorney introduced an exhibit that, the prosecuting attorney informed the jury, showed Aikens had been convicted in 2005 of unlawful possession of a firearm. Aikens offered no objection to the exhibit, and it was admitted into evidence. Had Aikens's trial lawyer examined the exhibit, however, he would have discovered that, in addition to showing that Aikens pled guilty to unlawful possession of a firearm, the exhibit also showed that he had been indicted for aggravated assault with a deadly weapon (and that the State placed that charge on the dead docket), and that he had been arrested for possession of a sawed-off shotgun (and that the State declined to prosecute him for...
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