Ealy v. State

• Decision Date: 08 September 1983
• Docket Number: No. 39972,39972
• Parties: EALY v. The STATE
• Court: Georgia Supreme Court

Page 275

306 S.E.2d 275

251 Ga. 426

EALY v. The STATE

No. 39972.

Supreme Court of Georgia.

Sept. 8, 1983.

Frank G. Smith, Smyrna, for Vernon Leroy Ealy.

Lewis R. Slaton, Dist. Atty., H. Allen Moye, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Atlanta, Mary Beth Westmoreland, Asst. Atty. Gen., for the State.

SMITH, Justice.

Vernon Leroy Ealy was tried before a Fulton County jury on two counts of aggravated assault and one count of murder. He was found guilty on all counts and sentenced to life imprisonment for murder and to two ten-year sentences for aggravated assault, these terms to be served concurrently with each other but consecutively to the life sentence. On appeal he enumerates as error ineffective assistance of counsel, certain comments by the trial court concerning production of alleged alibi witnesses, and the denial of his motions for continuance. We affirm.

Appellant was the common-law husband of the murder victim, Asa Daniels. On the night of November 25, 1981, appellant and Daniels were both at the Vegas Club, a bar on Candler Road in Atlanta. Felicia Jennings testified that she and a friend, Stephanie Montgomery, were also at the Vegas Club that evening. Daniels introduced herself to Jennings and Montgomery, and the three sat at the bar, talking, until approximately 3:00 a.m. on Thanksgiving morning, November 26, 1981. As the club's closing time approached. Ms. Daniels informed Jennings and Montgomery that she was alone and offered to drive them home. They accepted. When the trio arrived at Daniels' car, which was parked in the Vegas Club lot, appellant was already seated in the back seat on the passenger side. Daniels, Jennings and Montgomery joined appellant in the car, and the foursome left the Vegas Club, drove across Candler Road, and stopped at a service station to purchase gas. Jennings testified that while at the service station, appellant's face, which had previously been obscured by the dim lighting in the car's back seat, was clearly visible to her.

After exiting the gas station and while on Interstate 20, appellant directed Daniels to "get off right here." She exited the expressway at Sylvan Road, pulled off into an alley, and stopped. Appellant reached under the front seat and produced a revolver. He struck both Jennings and Montgomery in the head and threatened to kill them if they did not relinquish their money. Daniels grabbed Montgomery's purse and began hitting her. Montgomery got out of the car and fled on foot. Daniels instructed Jennings to leave her purse in the car and run also. She complied. As the victims fled the robbery scene, appellant fired at and wounded them both. Jennings was shot twice in the arm; Montgomery, once in the abdomen. Both survived to positively identify appellant as their assailant and to testify against him at trial.

Following the robbery, appellant and Daniels drove to the Beatie Avenue home of Tanyia Johnson to pick up Freeman, Daniels' baby boy, whom they had previously left in the Johnsons' care. Tanyia informed the couple that the baby wasn't there and directed them to another address. While at the door, Tanyia observed appellant curse at Ms. Daniels, strike her in the mouth with force sufficient to knock her off the porch and into nearby bushes, and grab her by the collar and force her back into the car. Appellant and Daniels proceeded to 777 Dill Avenue, the address given them by Tanyia Johnson. Dennis George answered the door at approximately 3:30 or 4:00 a.m. He testified that appellant and Daniels picked up the child; that they returned about five minutes later to retrieve the child's coat, which they had forgotten; that after he gave them the coat and closed the door he heard a loud slap; and that when he reopened the front door he heard Daniels plead, "Vernon, don't hit me." Appellant had a gun in his hand.

Asa Daniels' body was discovered by a city garbage collector at approximately 8:00 a.m. on November 26. She had been shot in the head and left to die in a street very close to the location where Montgomery and Jennings had been robbed earlier that same morning. Atlanta Police Department Detective Lloyd, who investigated the murder scene, recovered two spent .38 caliber bullets there. A third .38 caliber bullet was recovered from Daniels' body. At trial a ballistics expert testified that in his opinion all three bullets had been fired from the same gun. Blood tests performed on one of the bullets recovered from the scene revealed traces of Type B blood. Montgomery, one of the assault victims, has Type B blood. Daniels did not. The murder weapon was never recovered.

Appellant was apprehended in New Jersey in September 1982 and extradited to Fulton County for trial. At trial appellant took the stand and denied knowing anything about the November 26 robbery and denied shooting Daniels. His primary defense was alibi. Appellant and two defense witnesses testified that he had been in Florida visiting his grandmother on Thanksgiving Day 1981, the day of the robberies and murder.

1. Although not raised by appellant, we have examined the evidence under the standards of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and find it to be sufficient beyond a reasonable doubt to support the conviction on all counts.

2. In his first enumeration appellant contends that he was ineffectively represented at trial by court-appointed counsel. In support of this contention appellant points out that his lawyer had only two weeks prior to trial to prepare a defense, failed to subpoena certain alibi witnesses, and failed to object to the charge of the court.

The right to counsel guaranteed by the Georgia and federal Constitutions means "not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." Jackson v. State, 249 Ga. 751, 756, 295 S.E.2d 53 (1982). Where inadequate representation is alleged, the reviewing court normally considers whether the defendant had a defense which was not presented; whether trial counsel consulted with the accused and adequately investigated the facts and the law; and whether the omissions charged to trial counsel resulted from inadequate preparation, rather than from unwise trial tactics. Hawes v. State, 240 Ga. 327, 329, 240 S.E.2d 833 (1977).

A review of the record indicates that, contrary to appellant's assertions, his court-appointed attorney provided him with adequate representation. While it is true that counsel for appellant was appointed only two weeks prior to trial, we are not prepared to say that two weeks' preparation time is inadequate as a matter of law. See Morris v. Slappey, 461 U.S. 1, 103 S.Ct....