Henderson v. State

• Decision Date: 10 December 2018
• Docket Number: S18A1153
• Citation: 822 S.E.2d 228,304 Ga. 733
• Parties: HENDERSON v. The STATE.
• Court: Georgia Supreme Court

304 Ga. 733

822 S.E.2d 228

HENDERSON

v.The STATE.

S18A1153

Supreme Court of Georgia.

Decided: December 10, 2018

Gerald Ashland Griggs, Gerald A. Griggs, LLC, Decatur, Attorney for the Appellant

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Elizabeth Haase Brock, Assistant Attorney General, Department of Law, Joshua Daniel Morrison, Senior A.D.A., Paul L. Howard, Jr., District Attorney, Lyndsey Hurst Rudder, Deputy D.A., Aslean Beth Zachary, A.D.A., Fulton County District Attorney's Office, Attorneys for the Appellee

Hunstein, Justice.

Appellant Frank Henderson was convicted of felony murder and related offenses in connection with the beating death of Monica Davis.¹ On appeal, Appellant contends that this Court should grant him a new trial, that trial counsel was ineffective, and that the trial court erred in admitting certain testimony. Finding no error, we affirm.

Reviewing the record in a light most favorable to the verdicts, the evidence adduced at trial established as follows. In September 2004, Davis and her longtime friend, Phyllis Ann Thompson, were parked at a gas station in Fulton County. The pair, both "renegade prostitutes,"² were there so that Davis could meet her boyfriend, Darryl Daniels. While the women waited, Appellant, a pimp known to operate in the area, repeatedly drove by very slowly with a menacing expression on his face; also in the vehicle were Tiffany Turner and a number of other prostitutes who worked for Appellant.

At some point, Appellant’s vehicle stopped in the parking lot, and Appellant went to speak with Thompson. Davis, however, reciprocated Appellant’s threatening glares; consequently, Appellant indicated to Turner that she should start an altercation with Davis. Turner exited Appellant’s vehicle and threw a pink stiletto-heel shoe at Davis, hitting her. Davis exited her vehicle and ended up in a physical altercation with Turner and two other prostitutes who worked for Appellant; numerous witnesses testified that Appellant repeatedly yelled at the women in his employ to "get" or "kill" Davis. The fight eventually subsided, but Appellant gave Turner a second signal and again told her to "get" Davis; a witness walking by the scene testified that she heard Appellant tell Turner to "get in the car and hit" Davis. Turner testified that, following Appellant’s instructions, she got behind the wheel of the vehicle and drove toward Davis, hitting her and running her over a number of times. Appellant and his entourage fled the scene in the vehicle, and Davis later died as a result of the blunt-force trauma.

Turner was eventually taken to the police precinct by Appellant’s mother, Diadra Nelson, who had rented the vehicle in question. While Turner was waiting to speak with an investigator, Appellant contacted Turner through his mother and instructed Turner to inform investigators that he was at a different location at the time of the incident. When investigators later connected Appellant to the incident and arrested him, Appellant exclaimed that Turner was supposed to take full responsibility for the incident and that Thompson did not like him. While in pre-trial custody, Appellant sent numerous letters to Turner asking her for loyalty, telling her to recant her statements to police, and instructing her to tell investigators that he was not involved with the murder.

1. Though not raised by Appellant as error, in accordance with this Court’s standard practice in appeals of murder cases, we have reviewed the record and find that the evidence, as stated above, was sufficient to enable a rational trier of fact to find Appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant first asks this Court to grant him a new trial as a matter of law pursuant to OCGA §§ 5-5-20 and 5-5-21. However, as we have explained before, we have no authority to grant such a request.

A motion for new trial based on OCGA § 5-5-20, i.e., that the verdict is contrary to the evidence, addresses itself only to the discretion of the trial judge. Witt v. State, 157 Ga. App. 564 (2), 278 S.E.2d 145 (1981). Whether to grant a new trial based on OCGA § 5-5-21, i.e., that the verdict is strongly against the evidence, is one that is solely in the discretion of the trial court, and the appellate courts do not have the same discretion to order new trials. Willis v. State, 263 Ga. 597 (1), 436 S.E.2d 204 (1993).

Smith v. State, 292 Ga. 316, 317, 737 S.E.2d 677 (2013).³ Instead, as we did above, "this Court considers only the sufficiency of the evidence that was considered by the jurors in arriving at the verdict." Smith v. State, 300 Ga. 532, 534, n.2, 796 S.E.2d 671 (2017).

3. Appellant next contends that his trial counsel was ineffective in seven different ways. To succeed on his claims, Appellant bears the heavy burden of showing "both that his counsel performed deficiently and that, but for the deficiency, there is a reasonable probability that the outcome would have been more favorable." Slaton v. State, 303 Ga. 651, 652, 814 S.E.2d 344 (2018). See also Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To prove deficient performance, one must show that his attorney performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms. Courts reviewing ineffectiveness claims must apply a strong presumption that counsel’s conduct fell within the wide range of reasonable professional performance. Thus, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course. If the defendant fails to satisfy either the "deficient performance" or the "prejudice" prong of the Strickland test, this Court is not required to examine the other.

(Citation omitted.) Slaton, 303 Ga. at 652-653, 814 S.E.2d 344. We address each of Appellant’s claims in turn.

(a) Appellant first contends that trial counsel was ineffective for failing to investigate and present testimony from two exculpatory witnesses, Lakiesha Gray and Shaqunia Gates. According to Appellant, these witnesses would have testified that he "was not a party to nor present during the alleged killing." As an initial matter, Appellant has failed to adduce any competent evidence to show what Gray would have testified to at trial; accordingly, this portion of his claim must fail. See Dickens v. State, 280 Ga. 320 (2), 627 S.E.2d 587 (2006).

Regarding Gates, the undisputed testimony at the hearing on the motion for new trial was that trial counsel did, in fact, interview her. Both Gates and Appellant testified that trial counsel met with Gates; trial counsel acknowledged that he discussed possible witnesses with Appellant and interviewed at least one female passenger from Appellant’s vehicle, though he could not recall whether it was Gates specifically. According to her testimony at the hearing on the motion for new trial, Gates—a prostitute who worked for Appellant and was romantically involved with him—would have testified at trial that, on the night in question, Appellant argued with the victim in the gas-station parking lot and that, shortly thereafter, a brawl took place between the victim and a number of prostitutes who worked for Appellant; according to Gates, however, the enmity was solely between the women and did not involve Appellant. Gates would also have testified that, at the time of the incident, Appellant was in an adjacent parking lot and had neither encouraged nor signaled Turner to kill Davis.

As a preliminary matter, though Appellant elicited extensive testimony that trial counsel interviewed witnesses and met with Gates, trial counsel was never asked about Gates' testimony nor why he did not call Gates as a witness. As such, Appellant has not overcome the strong presumption that trial counsel’s decision fell within the broad range of reasonable professional conduct. See Peterson v. State, 282 Ga. 286 (4) (d), 647 S.E.2d 592 (2007) (" ‘In the realm of specific decisions regarding trial strategy, and in particular decisions about which witnesses should be called to testify, defense attorneys are afforded wide discretion.’ " (Citations omitted.) ).

Moreover, even if we assume that trial counsel’s performance was objectively unreasonable, Appellant has failed to demonstrate prejudice. Gates' testimony largely corroborates the accounts provided by other witnesses—i.e., that Appellant was present on the night of the murder, that there was an argument between Appellant and the victim in the parking lot, that a number of prostitutes who worked for Appellant ended up in a physical altercation with the victim, and that Turner eventually rammed the victim with the vehicle. The gravamen of Gates' testimony is that Appellant did not tell or signal Turner to kill the victim; her underdeveloped testimony does not, however, clearly counter the extensive witness testimony that Appellant was otherwise encouraging the women to fight and "get" Davis. Based on the foregoing—as well as the overwhelming testimony that Appellant had encouraged Turner and the other women to "fight" and "get" the victim—we cannot say that but for trial counsel’s failure to call Gates as a witness there is a reasonable probability that the outcome of his trial would have been more favorable.

(b) Appellant next faults trial counsel for failing to object during opening statements when the State read from the indictment. Notably, the record reflects that trial counsel requested a bench conference as soon as the State began reading from the indictment; though the bench conference was not transcribed, counsel testified at the hearing on the motion for new trial that he believed he...