Green v. State

• Decision Date: 20 August 2018
• Docket Number: S18A0796
• Parties: GREEN v. The STATE.
• Court: Georgia Supreme Court

304 Ga. 385

818 S.E.2d 535

GREEN

v.The STATE.

S18A0796

Supreme Court of Georgia.

Decided: August 20, 2018

Dennis Clarence Francis, Jr., General Counsel, METRO CONFLICT DEFENDER, 104 Marietta Street, N.W., Suite 200, Atlanta, Georgia 30303, Matthew Thomas Dale, LAW OFFICE OF MATTHEW T. DALE, P.O. Box 2177, Tifton, Georgia 31793, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Matthew Blackwell Crowder, Assistant Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Karl David Cooke, Jr., District Attorney, Sandra G. Matson, A.D.A, Jason Michael Martin, A.D.A., MACON JUDICIAL CIRCUIT DISTRICT ATTORNEY'S OFFICE, 661 Mulberry Street, Third Floor, Grand Building, Macon, Georgia 31201, for Appellee.

Peterson, Justice.

Raymon Jamaal Green appeals his conviction for malice murder and other crimes, stemming from two different incidents occurring on May 9 and 21, 2010, the latter of which resulted in the death of Christopher Finney.¹ Green argues that the evidence was insufficient to support the verdicts and that the trial court erred in denying his motion for directed verdict as to certain counts. He also argues that trial counsel provided ineffective assistance in failing to move to sever the counts related to the May 9 incident, introduce a certified copy of a burglary conviction of a key State witness (Tony Chatfield), seek a jury instruction on impeachment by felony conviction, and argue in closing that Chatfield’s conviction rendered his testimony unbelievable. Because the evidence is sufficient to support Green’s convictions and he has not shown that he was prejudiced by any of the alleged deficiencies of counsel, we affirm.

The trial evidence viewed in the light most favorable to the verdicts showed that on the evening of May 9, Nadina Waller, her mother Diane Waller, and Nadina’s minor daughter and niece entered a convenience store. There, Nadina saw Green and co-defendant Demeko Wilson. Nadina told Diane that Wilson was the man who had broken into Nadina’s home. The Wallers confronted Wilson, eventually taking their altercation outside. At one point, Wilson lifted up his shirt so Nadina could see a gun in his waistband, and unsuccessfully attempted to coax Nadina behind the building. As the women began to drive away in their separate vehicles, they heard four or five shots fired. Turning around to check on her mother and the children, Nadina saw Wilson and Green running off in the same direction. None of the Wallers or their vehicles were shot.

On the evening of May 21, Christopher Finney and Tony Chatfield were walking together when they were approached by two men identified by Chatfield as Green and Wilson. Both Green and Wilson wore black hats. Chatfield saw that both men had guns—Green pulled out a .45 caliber handgun, and Wilson indicated he had a .380 handgun.² Green and Wilson asked Chatfield and Finney what they had in their pockets. When Chatfield replied that he had only $10, Green and Wilson turned their attention to Finney. Chatfield attempted to run away and Finney followed. As he was running, Chatfield heard shots fired and saw Green firing his gun. Finney was shot in the back and died of his injuries.

Shortly after the shooting, Green and Wilson briefly went to the home of Chatfield’s sister, Whitney Waters, who lived less than half a mile from the street on which Finney was shot.³ At the house, Green and Wilson asked for bleach, a place to wash their hands, and use of a telephone. The two were breathing hard and seemed to be in a hurry. By the next morning, Waters found two black hats in a trash can in her back yard.

A .45 caliber shell casing and two .380 shell casings, all undamaged, were found at the scene of the May 21 shooting; the bullet that killed Finney was never found by police. The .45 caliber shell casing found at the scene of the May 21 shooting was fired from the same gun as one of the five .45 caliber shell casings collected at the scene of the May 9 incident. The other four .45 caliber shell casings collected at the scene of the May 9 incident were fired from a different gun.

1. Green argues that the evidence is insufficient to support his convictions and that the trial court erred when it denied his motion for directed verdict as to certain counts. We disagree.

We review the sufficiency of evidence for whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This same standard applies when evaluating the denial of a defendant’s motion for directed verdict. See Lewis v. State, 296 Ga. 259, 261 (3), 765 S.E.2d 911 (2014). "This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury’s assessment of the weight and credibility of the evidence." Hayes v. State, 292 Ga. 506, 506, 739 S.E.2d 313 (2013) (citation omitted). "[I]t is the role of the jury to resolve conflicts in the evidence and to determine the credibility of witnesses, and the resolution of such conflicts adversely to the defendant does not render the evidence insufficient." Graham v. State, 301 Ga. 675, 677 (1), 804 S.E.2d 113 (2017) (citation and punctuation omitted).

(a) Green first argues that there was insufficient evidence that he was involved in any of the alleged May 9 assaults. He notes that Diane Waller testified that she saw two figures in shadow at the time shots were fired, with only one of them, who she assumed was Wilson, shooting a gun. Green emphasizes that no witness saw Green in possession of a firearm during the incident. And he suggests that the evidence was particularly weak as to the alleged aggravated assaults of Nadina and the children, given Diane’s testimony that the shots were directed at her and evidence that Nadina already had pulled her car out ahead of Diane when the shots were fired.

The aggravated assault charges arising from the May 9 incident alleged that Green assaulted Nadina, Diane, and each of the two children by shooting at them with a handgun. Notwithstanding Green’s arguments to the contrary, there is evidence that authorized the jury to conclude that Green shot in the direction of all four alleged victims. The women testified that they heard as many as five shots fired, and the ballistics evidence, coupled with testimony by Chatfield about the guns used by Green and Wilson, authorized a conclusion that two different guns were used in the assault, one of them by Green. In addition, Nadina testified that she saw Wilson and Green running off in the same direction after the shots were fired.

Moreover, the statute under which Green was charged, OCGA § 16-5-21 (a) (2), does not require the deadly weapon to have been pointed directly at each victim, but merely that the defendant use the deadly weapon in such manner as to "place[ ] another in reasonable apprehension of immediately receiving a violent injury." See OCGA § 16-5-20 (a) (2) ; see also Roberts v. State, 267 Ga. 669, 671 (1), 482 S.E.2d 245 (1997) (sufficient evidence to support aggravated assault conviction where victim testified that he ran when he saw two men start shooting and other people being shot, from which the jury could surmise that the victim suffered apprehension of being shot); Hawkins v. State, 260 Ga. 138, 138 (2) (b), 390 S.E.2d 836 (1990) (defendant’s testimony that he fired into crowd to frighten group established offense of aggravated assault). Here, Diane testified that she was frightened when she heard the shots, as they seemed directed at her vehicle and were heard as "a whistle coming past" her. Nadina perceived the shots as intended for her given the prior altercation and testified they were "extremely close." Fearing one of the children had been shot, she checked on them immediately, pulling her daughter out of her car seat. There is sufficient evidence to support the guilty verdicts against Green on the aggravated assault counts arising from the May 9 incident.

(b) Green argues that the evidence also is insufficient to support the convictions arising from the May 21 incident. He argues that the State did not show that he attempted to rob or assault Chatfield because there was no evidence that Green brandished a weapon at Chatfield or attempted to take anything from Chatfield by force. Green also argues that his murder conviction cannot be sustained because Chatfield was not credible when he testified that he saw Green and Wilson shoot at Finney and was able to identify the particular caliber of guns that each used. Noting that police found $878.37 in Finney’s pockets, Green contends Chatfield’s story is "inconceivable" because Wilson and Green would not have killed Finney to rob him without having taken the money.

OCGA § 16-8-41 (a) provides that "[a] person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon." The offense of criminal attempt is committed when the defendant, with the intent to commit a specific crime, commits a substantial step toward its commission. See OCGA § 16-4-1. The element of use of an offensive weapon does not require proof that the defendant pointed the weapon at the victim. Rather, " ‘use of an offensive weapon’ takes place when the weapon is used as an instrument of actual or constructive force—that is, actual violence exerted on the victim or force exerted upon the victim by operating on the victim’s fears of injury to the person, property, or character of the victim" such that "the defendant’s acts created a reasonable apprehension on the part of the victim that an offensive weapon is being used."...