Ingram v. State, S15A1188.
Decision Date | 19 October 2015 |
Docket Number | No. S15A1188.,S15A1188. |
Citation | 778 S.E.2d 781,297 Ga. 854 |
Parties | INGRAM v. The STATE. |
Court | Georgia Supreme Court |
Dwight L. Thomas, D. Lowell Thomas, PC, Atlanta, for appellant.
Patricia B. Attaway Burton, Deputy Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Meghan Hobbs Hill, Asst. Atty. Gen., Department of Law, Michael V. Snow, Asst. Atty. Gen, Paul L. Howard, Jr., Dist. Atty., Paige Reese Whitaker, Deputy Dist. Atty., Fulton County District Attorney's Office, for appellee.
Appellant Kimjon Ingram appeals from his convictions of felony murder and other crimes stemming from the asphyxiationdeaths of sisters Donisha and Lexusous Henderson.1Appellant contends, among other things, that the trial court erred in denying his motion for a continuance, that his trial counsel was constitutionally ineffective, and that the trial court erred in charging the jury. For the reasons that follow, we affirm.
1. Viewed in the light most favorable to the verdicts, the evidence showed that appellant and his former girlfriend, Cassandra Heflin, were members of the FOLKS gang. After their breakup, appellant and Heflin remained friends. On July 22, 1994, Heflin called appellant and told him that her sister was being mistreated by some members of the CRIPS gang at the apartment of Charmaine Henderson, the mother of the two deceased victims. Appellant told Heflin that he would “go take care of that.” She told him to “ [b]low them up if you have to,” by which she meant that appellant, who always had a gun, should shoot them if necessary. Appellant then prepared Molotov cocktails with gasoline, went to Charmaine Henderson's apartment, and threw a Molotov cocktail into her apartment window. At that time, Charmaine and her two children, as well as Cantinas White and her cousin, were in the apartment. The two children had just gone to bed, and the other three were in the TV room. When the bomb hit, it created a fireball that kept Charmaine from getting to her children. White and her cousin ran to get help. Despite help from two men, Charmaine could not get to the children.
A police officer, the first responder to arrive, said that he could hear the cries of the children inside the apartment. Neither he nor a fireman, who arrived shortly after the officer, could enter the apartment because the room just inside the apartment door was fully engulfed in flames. Once the fire was extinguished, responders crawled through thick smoke, located the children, and pulled them from the apartment. By that time, they both had died from smoke inhalation.
Appellant does not dispute the legal sufficiency of the evidence supporting his convictions, but we conclude that, when viewed in the light most favorable to the verdicts, 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 crimes for which he was convicted. See Jackson v. Virginia,443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Vega v. StaNoted. Thank you.te,285 Ga. 32, 33, 673 S.E.2d 223 (2009) .
2. Appellant contends that the trial court erred in denying his motion for a continuance. We find no error.
No jurors responded to the trial court's question, and defense counsel declined the opportunity to ask the jurors any further questions. Under these circumstances, and because the events of this case did not involve a terror attack like those of September 11, we conclude that the trial court did not clearly abuse its discretion in denying appellant's motion for a continuance.2See Kemp v. State,259 Ga.App. 302, 303, 576 S.E.2d 673 (2003)(the trial court did not err in conducting appellant's trial during the week of September 11, 2001) that .
3. Appellant contends that trial counsel was constitutionally ineffective in not seeking an on the record waiver of appellant's decision not to testify in his own defense and in not objecting when, during closing argument, the prosecutor sang “Happy Birthday” to the two deceased victims. Appellant, however, is procedurally barred from raising these allegations. In his untimely motion for new trial, see footnote 1 above, appellant raised these two allegations of ineffective assistance of counsel. The trial court denied that motion, and we dismissed the appeal that followed that denial on the ground that the motion for new trial was untimely and did not toll the time for filing a notice of appeal. After the trial court granted appellant an out-of-time appeal, he did not file a motion for new trial raising these two claims of ineffective assistance of counsel. We have held that, under these circumstances, the failure to file a second and valid motion for new trial “ ‘raising the claim[s] of ineffective assistance of trial counsel bars review of th[ose] claim[s] at this time.’ ” Sanders v. State,289 Ga. 655, 659, 715 S.E.2d 124 (2011)(citation omitted). Accordingly, appellant is barred from raising these claims on appeal.
4. Relying on McKenzie v. State,293 Ga.App. 350, 667 S.E.2d 142 (2008), appellant contends that the trial court erred in charging in both its preliminary and final instructions that the jury could consider, among numerous other factors, the intelligence of witnesses in assessing their credibility.3
In McKenzie,the Court of Appeals said that informing a jury that it may consider intelligence as a factor in determining witness credibility is problematic and confusing. See id. at 352, 667 S.E.2d 142. For these reasons, the court concluded that the charge should not be given, but that it is not so “harmful as to require a reversal.” Id. This...
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