Herrington v. State

• Decision Date: 21 November 2016
• Docket Number: S16A0745
• Citation: 300 Ga. 149,794 S.E.2d 145
• Parties: Herrington v. The State.
• Court: Georgia Supreme Court

300 Ga. 149

794 S.E.2d 145

Herrington

v.The State.

S16A0745

Supreme Court of Georgia.

Decided: November 21, 2016

Jacob Dennis Rhein, Office of the Public Defender, 104 Marietta Street, Suite 600, Atlanta, Georgia 30303, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Samuel S. Olens, Attorney General, Jason Matthew Rea, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334-1300, Joshua Bradley Smith, A.D.A., Rebecca Ashley Wright, District Attorney, Augusta Judicial Circuit District Attorney's Office, 735 James Brown Boulevard, Suite 2400, Augusta, Georgia 30901, for Appellee.

NAHMIAS, Justice.

Appellant Anthony Herrington challenges his conviction for felony murder based on aggravated assault in connection with the shooting death of Curtis Howard. Appellant contends that the evidence presented at trial was insufficient to support his conviction, that the trial court gave an improper jury instruction on aggravated assault, that his motion for mistrial based on the prosecutor's questions during voir dire was improperly denied, and that his trial counsel provided ineffective assistance. We affirm.¹

1. (a) Viewed in the light most favorable to the verdict, the evidence at trial showed

the following. In 2006, Howard began supplying large quantities of cocaine on a weekly basis to Michael Thomas and Michael Fields, two drug dealers in Waynesboro, Georgia. On August 24, 2006, Howard drove in his truck to Waynesboro, checked into a hotel, and then drove to Fields's house, picking up Thomas along the way. When they arrived at the house, Thomas called Fields and told him that they were there. Shortly thereafter, Appellant and Michael Jones, who was armed with a rifle, ran up to either side of the truck, and Howard and Thomas were ordered at gunpoint to get out and get onto the ground. Appellant pulled Thomas's shirt over his head so he could not see. One of the assailants demanded to know where the drugs were, and Howard said that the drugs were back at his hotel. As Howard begged for his life, Jones shot him once in the chest and once in the abdomen, killing him.

Howard weighed about 500 pounds, and Appellant, Thomas, and Fields had to work together to load his body into the bed of his truck. Appellant used a shovel to cover with fresh dirt the bloody ground where Howard lay after being shot, while Jones, Thomas, and Fields left to dispose of Howard's body and truck. The next day, Howard's body was found in the bed of his truck, which was parked behind a vacant mobile home in a neighboring county. The police later found two kilograms of cocaine in a compartment behind the back seat.

At trial, Thomas and Fields testified for the State. Thomas said that Appellant also had a gun when he ran up to the truck, but no other evidence corroborated that point. Appellant testified that he was coming around the corner of the house when he heard the shots, and he denied any involvement in Howard's death. Appellant claimed that he helped load Howard's body into the truck only because Fields's children were about to get home from school.

(b) Appellant argues that the evidence was legally insufficient to prove that he committed the aggravated assault with a deadly weapon predicate for his felony murder conviction. In support of this argument, Appellant asserts that the State failed to prove that he possessed a firearm, pointing to his acquittal on the count of possession of a firearm during the commission of a crime. However, a defendant need not personally possess a weapon or fire a shot to be found guilty as a party to an aggravated assault, if the evidence shows that he "[i]ntentionally aid[ed] or abet[ted] in the commission of the crime." OCGA § 16-2-20 (b) (3). " ‘[W]hether a person was a party to a crime can be inferred from his presence, companionship, and conduct before and after the crime was committed.’ " Flournoy v. State, 294 Ga. 741, 745, 755 S.E.2d 777 (2014) (citation omitted).

Thomas testified that Appellant approached Howard's truck with Jones, Thomas and Howard were ordered out of the truck at gunpoint, Appellant helped to control Thomas while Jones shot Howard, and Appellant then helped clean up the crime scene, including helping to load Howard's body into his truck. This testimony was corroborated by other evidence, and the jury could disbelieve Appellant's claim that he was not even near the truck when Howard was shot. See Vega v. State, 285 Ga. 32, 33, 673 S.E.2d 223 (2009) (" ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ " (citation omitted)).

Thus, even if the jury found that Appellant himself did not have a gun or shoot Howard, it does not follow that he could not properly be found guilty as a party to the felony murder based on the aggravated assault that Jones committed. See Flournoy, 294 Ga. at 745–746, 755 S.E.2d 777. See also Cash v. State, 297 Ga. 859, 864, 778 S.E.2d 785 (2015) (explaining that even "[a] defendant who lacks knowledge that his co-defendant possessed the gun that was used to commit an aggravated assault may nevertheless be a party to the aggravated assault," if he shared a criminal intent to commit an assault on the victim); Hines v. State, 276 Ga. 491, 492, 578 S.E.2d 868 (2003) (explaining that Georgia does not recognize "an inconsistent verdict rule, which would permit a defendant to challenge the factual findings underlying a guilty verdict on one count as inconsistent with the findings underlying a not guilty verdict on a different count" (footnote omitted)). When viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crime for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant contends that the trial court erred in instructing the jury on the elements of aggravated assault. Because Appellant did not raise this objection at trial,

his claim is reviewed on appeal only for plain error, meaning that we will reverse the trial court only if the instructional error was not affirmatively waived ..., was obvious beyond reasonable dispute, likely affected the outcome of the proceedings, and seriously affected the fairness, integrity, or public reputation of judicial proceedings.

Saffold v. State, 298 Ga. 643, 650, 784 S.E.2d 365 (2016) (citation and quotation marks omitted). See also OCGA § 17-8-58 (b).

Appellant's claim fails this test. He complains that the trial court did not instruct the jury using only the language of the indictment, which alleged that the aggravated assault was committed "by shooting" the victim. But the court gave the jury the pattern charge for aggravated assault with a deadly weapon, and Appellant does not contend that he was indicted for some other form of aggravated assault; indeed, he states in his evidence-sufficiency argument that the felony murder charge was based on aggravated assault with a deadly weapon. Moreover, even if the trial court had given an overbroad aggravated assault instruction, that defect was cured, because the record indicates that the court provided the jury with a copy of the indictment for its deliberations and the court instructed the jury that the burden of proof rests on the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt. See Dugger v. State, 297 Ga. 120, 123, 772 S.E.2d 695 (2015) ; Faulks v. State, 296 Ga. 38, 39, 764 S.E.2d 846 (2014). Accordingly, Appellant has shown neither obvious error nor an error likely affecting the outcome of the trial, and this enumeration therefore fails.

3. Appellant next argues that the trial court erred in denying his motion for a mistrial during voir dire. The motion...