Andrews v. State

Decision Date07 October 2013
Docket NumberNo. S13A0679.,S13A0679.
Citation293 Ga. 701,749 S.E.2d 734
PartiesANDREWS v. The STATE.
CourtGeorgia Supreme Court

OPINION TEXT STARTS HERE

Edgar A. Callaway Jr., Edgar Callaway Attorney at Law, Conyers, for appellant.

Patricia B. Attaway Burton, Deputy Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., David Allan Zisook, Asst. Atty. Gen., Department of Law, Stephen Andrew Bradley, Chief Asst. Dist. Atty., Baldwin County District Attorney's Office, Milledgeville, Fredric Daniel Bright, Dist. Atty., Ocmulgee Judicial Circuit District Attorney's Office, Allison Thatcher Mauldin, Asst. Dist. Atty., Office Of The District Attorney, for appellee.

MELTON, Justice.

Following a jury trial, Joseph Andrews was found guilty of malice murder and felony murder in connection with the shooting death of Cornelius Lowe.1 On appeal Andrews contends that his trial counsel was ineffective, that the trial court erred by allowing incriminating hearsay statements from his co-defendants to be admitted into evidence at trial, and that the trial court erred by denying his motion for a mistrial. We affirm.

1. Viewed in the light most favorable to the jury's verdict, the evidence reveals that, at approximately 1:00 a.m. on February 5, 2004, Andrews and codefendants Tremaine Deon Calhoun and Billy Randy Davis, Jr. chased Lowe with the intention of stealing drugs from him. One of the men shot Lowe four times in the head while Lowe was down on his knees and begging for his life. Andrews went through Lowe's pockets, and Davis and Calhoun then stashed the gun behind a house about three blocks away from the place where Lowe had been shot. Lowe's dead body was found later that morning at around 11:00 a.m. Police recovered a .22 caliber gun from behind the house where Davis and Calhoun had placed it, and recovered Winchester .22 caliber bullets from Lowe's head that were consistent with having been fired from the type of gun recovered. Footprint casts were made of the shoe impressions near Lowe's body and the area where the gun had been found, and those casts indicated that Andrews and Calhoun had shoes of a similar design and size that could have made the shoe impressions. Police also found a box of Winchester .22 bullets at Andrews' house.

The morning after the murder, Davis and Andrews told various people that they had been involved in killing someone. Andrews also admitted to his cellmate that he, Calhoun, and another person had intended to rob Lowe, but Calhoun ended up shooting the victim and they discarded the gun. Calhoun also admitted to his cell mate that he was involved in robing Lowe and shooting him in the face and head. Davis admitted to his ex-girlfriend that he had been involved with trying to rob Lowe and shooting Lowe when he tried to run away, and that he would “blow [her] brains out like he did Lowe” if she said anything about the crime. Other witnesses also testified that they had been threatened by the defendants and warned that they would be killed if they testified against the defendants.

Similar transaction evidence was also introduced at trial by two men who claimed that Calhoun had robbed them while they were selling drugs. One of the men testified that, a week before Lowe's murder, Andrews and Calhoun robbed him of drugs, and shots were fired. Andrews admitted at trial that, although he took drugs from that man, he did not consider this to be a “ robbery” because he only stole drugs and the victim did not call the police. Andrews also testified at trial that, on the night of the murder, he left Calhoun's house between 11:00 p.m. and 11:30 p.m. and went to his girlfriend Africa Hill's house where he slept until the next morning at 7:00 a.m.

The evidence was sufficient to enable a rational trier of fact to find Andrews guilty of murder and felony murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also OCGA § 16–2–20 (parties to a crime). The jury was free to reject Andrews' claim that he was at his girlfriend's house at the time of the murder and instead conclude that he was a willing participant who was directly involved in the crime at the time that it was committed. See, e.g., Odom v. State, 279 Ga. 599, 619 S.E.2d 636 (2005).

2. Andrews contends that his trial counsel was ineffective for failing to call his girlfriend, Africa Hill, as an alibi witness at trial.

In order to succeed on his claim of ineffective assistance, Andrews must prove both that his trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 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. Id. at 697(IV), 104 S.Ct. 2052;Fuller v. State, 277 Ga. 505(3), 591 S.E.2d 782 (2004). In reviewing the trial court's decision, [w]e accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.’ [Cit.] Robinson v. State, 277 Ga. 75, 76, 586 S.E.2d 313 (2003).

Counsel testified at the motion for new trial hearing that Hill had given several conflicting statements to police, and that phone records revealed that Hill may not have been telling the truth about alleged calls that she said she had made to Andrews on the night of the murder. Counsel therefore made a strategic decision not to call her as a witness, as he believed that doing so would not have been helpful to Andrews' case. Because this strategic decision was reasonable under the circumstances, Andrews cannot show that his trial counsel was ineffective for having failed to call Hill as an alibi witness at trial. See, e.g., Green v. State, 291 Ga. 287, 297(10)(d), 728 S.E.2d 668 (2012) (no showing of ineffective assistance where counsel's judgment and tactics were reasonable” in determining that alleged alibi witnesses were “unable to support an alibi defense”) (citation and punctuation omitted).

[293 Ga. 704]3. Andrews argues that the trial court erred by admitting into evidence various incriminating hearsay statements of his co-defendants at trial. However, the record reveals that Andrews did not make a contemporaneous...

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14 cases
  • Anderson v. State
    • United States
    • Georgia Court of Appeals
    • June 11, 2019
    ...generally as an example is not improper).44 Stroud v. State , 272 Ga. 76, 77 (2), 526 S.E.2d 344 (2000) ; see Andrews v. State , 293 Ga. 701, 704 (4), 749 S.E.2d 734 (2013) (noting that it is improper for the State to make statements as to defendant’s future dangerousness during closing arg......
  • Kirkland v. State
    • United States
    • Georgia Court of Appeals
    • September 28, 2015
    ...character had been improperly placed in issue, Kirkland waived appellate review of this enumeration of error. See Andrews v. State,293 Ga. 701, 704(4), 749 S.E.2d 734 (2013); Coe v. State,293 Ga. 233, 238(4), 748 S.E.2d 824 (2013).5. Lastly, Kirkland contends that his trial counsel rendered......
  • Moss v. State, S15A1736.
    • United States
    • Georgia Supreme Court
    • March 7, 2016
    ...to call Youmans at trial was patently unreasonable. Thus, Appellant failed to show deficient performance. See id.; Andrews v. State, 293 Ga. 701, 703, 749 S.E.2d 734 (2013). He also failed to show prejudice, because Youmans would not have given him a solid and complete alibi for the time of......
  • McKelvey v. State
    • United States
    • Georgia Supreme Court
    • March 1, 2021
    ...determinations unless clearly erroneous, but we independently apply the legal principles to the facts." Andrews v. State , 293 Ga. 701, 703 (2), 749 S.E.2d 734 (2013) (citation and punctuation omitted). "If an appellant fails to meet his or her burden of proving either prong of the Strickla......
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