Edwards v. State

• Decision Date: 09 May 2016
• Docket Number: No. S16A0255.,S16A0255.
• Citation: 299 Ga. 20,785 S.E.2d 869
• Parties: EDWARDS v. The STATE.
• Court: Georgia Supreme Court

299 Ga. 20

785 S.E.2d 869

EDWARDS

v.The STATE.

No. S16A0255.

Supreme Court of Georgia.

May 9, 2016.

Page Anthony Pate, Jess Brandel Johnson, Pate & Johnson, LLC, Atlanta, for appellant.

J. David Miller, District Attorney, Harriet M. Thomas, Assistant District Attorney; Samuel S. Olens, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Jason M. Rea, Assistant Attorney General, for appellee.

BLACKWELL

, Justice.

Phirronnius Edwards was tried by a Colquitt County jury and convicted of murder and the unlawful possession of a firearm during the commission of a felony, both in connection with the fatal shooting of Billy Hewitt. Edwards appeals, contending that the evidence is insufficient to sustain his convictions, that he was denied the effective assistance of counsel, and that the trial court mishandled a note from the jury. Upon our review of the record and briefs, we see no error, and we affirm.¹

1. Viewed in the light most favorable to the verdict, the evidence shows that Edwards needed money, and he and Michael Russell planned to rob Hewitt, who worked with Russell at a beef processing plant. On the evening of September 22, 2011, Russell and Hewitt were working on the late shift. Just before midnight, Russell left the plant and met Edwards near a convenience store that was located about 400 feet outside the gate of the plant. Russell left his car parked just down the road from the store, dropped off Edwards at the store, and drove Edwards's silver Dodge Neon back to the plant. When Hewitt left work around 12:25 on the morning of September 23, Russell followed him at some distance to a Chevron gas station—picking up Edwards along the way—and waited in the parking lot while Hewitt purchased some items in the gas station. Hewitt then headed home, and Russell followed, still accompanied by Edwards. As they followed Hewitt to his home, Russell noticed that Edwards had a nine millimeter pistol.

After Hewitt reached his home and turned into the driveway, Russell stopped the car, and Edwards walked to the back of Hewitt's house. Russell subsequently heard two gunshots, and Edwards ran back to the car and pulled out some cash and a bank card with Hewitt's name on it. Hewitt was able to run across the street for help, wake the neighbors around 12:50 a.m., and tell a responding officer that he did not know who had shot him. Hewitt later died, however, from a gunshot wound

to his abdomen. Meanwhile, Russell and Edwards returned to Russell's car, drove their cars to an apartment, and went back to the Chevron in Russell's car and then on to a Waffle House restaurant. Two nine millimeter shell casings and one bullet were found in Hewitt's yard.

Edwards argues that the evidence is insufficient to sustain his convictions because Russell's testimony implicating him in the armed robbery and killing of Hewitt was not sufficiently corroborated by other admissible evidence. As we have often explained,

in Georgia, a felony conviction cannot be sustained solely by the uncorroborated testimony of an accomplice. That said, sufficient corroborating evidence may be circumstantial, it may be slight, and it need not of itself be sufficient to warrant a conviction of the crime charged. It must, however, be independent of the accomplice testimony and must directly connect the defendant with the crime, or lead to the inference that he is guilty. Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict.

McKibbins v. State, 293 Ga. 843, 846(1), 750 S.E.2d 314 (2013)

(citations and punctuation omitted). See also former OCGA § 24–4–8 (in “felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient” and must be supported by the testimony of another witness or by “corroborating circumstances”).² Moreover, although the timing and details of the crime are not alone sufficient to satisfy the requirement of additional evidence, they may “serve as corroborating circumstances if they are directly linked to the identity of the defendant as the perpetrator of the crime on trial.” Lindsey v. State, 295 Ga. 343, 347(3), 760 S.E.2d 170 (2014)

. “And even though evidence of motive without more is insufficient to corroborate the testimony of an accomplice, it can be considered in the determination of whether an accomplice's version of events inculpating a defendant is corroborated.” Id. (citations and punctuation omitted). Cf. Gilmore v. State, 315 Ga.App. 85, 91(1)(d), 726 S.E.2d 584 (2012) (“mere motive is not sufficient corroboration” (citations omitted)).

In this case, Edwards admitted that he talked with Russell by cell phone on September 23, 2011 at 12:03 a.m. and 12:08 a.m., that a call was made from his cell phone to his girlfriend at 12:05 a.m. (even though Edwards said that he was with her until after 12:30 a.m.), and that he met Russell a little after 1:00 a.m. See Rivers v. State, 296 Ga. 396, 398(1), 768 S.E.2d 486 (2015)

( “accused's own testimony may be used to corroborate an accomplice's testimony against him” (citation omitted)); Crawford v. State, 294 Ga. 898, 901(1), 757 S.E.2d 102 (2014)

(cell phone records showing calls between the defendant and the accomplice on the morning of the crimes were part of the corroborating circumstantial evidence of the defendant's participation). Evidence independent of Russell's testimony—specifically, testimony from the county tax commissioner—proved that Edwards owned a silver Dodge Neon, and surveillance video from the Chevron showed a Dodge Neon in the parking lot just minutes before commission of the crimes. See Terrell v. State, 271 Ga. 783, 786(3), 523 S.E.2d 294 (1999) (corroborating circumstances included the accomplice being seen driving the defendant's car near the victim's house around the time of the crime). Cf. Hill v. State, 236 Ga. 831, 833, 225 S.E.2d 281 (1976) (no testimony except the accomplice's that grey ski mask like the one used in robbery belonged to the defendant). Other evidence showed that Edwards had financial problems and, therefore, had a motive for robbery. See Lindsey, 295 Ga. at 347(3), 760 S.E.2d 170 ; Terrell, 271 Ga. at 786(3), 523 S.E.2d 294. And after Russell was arrested, the Georgia Bureau of Investigation recorded a phone call in which Edwards told Russell that he had not used the bank card. Although Hewitt's name was not mentioned in that phone call, it nevertheless amounted to at least slight evidence that Edwards possessed the victim's property, and so it provided additional corroboration of Edwards's participation in the crimes. See McDonald v. State, 296 Ga. 643, 645(1), 770 S.E.2d 6 (2015) (possession of necklace worn by the victim was a corroborating circumstance). We conclude that the testimony given by Russell at trial was sufficiently corroborated to sustain the convictions. And in all, the evidence was sufficient to authorize a rational jury to find beyond a reasonable doubt that Edwards was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Edwards contends that he was denied the effective assistance of counsel because his trial lawyer failed, he says, to adequately impeach Russell with evidence of his plea agreement in this case. To prevail on a claim of ineffective assistance, Edwards 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, Edwards must show that she performed her 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, Edwards must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 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 is a heavy one, see Kimmelman, 477 U.S. at 382(II)(C), 106 S.Ct. 2574, and we conclude that Edwards has failed to carry it.

Before Russell testified, the trial court addressed him in the presence of the jury, and he confirmed that he had pled guilty in this case. On direct examination, Russell testified that he had pled guilty to the armed robbery of Hewitt but had not yet been sentenced. Edwards's lawyer thoroughly cross-examined Russell about his prior inconsistent statements to law enforcement, she then specifically questioned him about his subsequent guilty plea, and he affirmed that he was not pleading guilty to felony murder or the unlawful possession of a firearm during the commission of a felony, but only to armed robbery. Edwards's lawyer then questioned Russell as to whether his testimony at trial was aimed at getting himself out of trouble and whether it amounted to an attempt to help himself. During her closing argument, Edwards's lawyer followed up by reminding the jury that Russell had pled guilty to armed robbery and that felony murder and unlawful possession of a firearm during the commission of a felony had been taken off the table, and she told the jurors that they had to look at whether that was a powerful enough incentive for Russell to come and tell them something that was not true.

Edwards claims that his lawyer failed to elicit specific testimony from Russell that he had been charged in the same...