McClendon v. Burks

• Citation: 791 S.E.2d 69,299 Ga. 611
• Decision Date: 12 September 2016
• Docket Number: S16A0699,S16A0700
• Parties: McClendon v. The State. Burks v. The State.
• Court: Georgia Supreme Court

299 Ga. 611

791 S.E.2d 69

McClendon

v.The State.

Burks

v.The State.

S16A0699

S16A0700

Supreme Court of Georgia.

Decided: September 12, 2016

Charita Hope Demps, 2451 Cumberland Parkway, Suite 3426, Atlanta, Georgia 30339, for Appellant in S16A0699.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Samuel S. Olens, Attorney General, Mary Catherine Greaber, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Paul L. Howard, Jr., District Attorney, Arthur C. Walton, A.D.A., Fulton County District Attorney's Office, 136 Pryor Street, S.W., 4th Floor, Atlanta, Georgia 30303, Paige Reese Whitaker, Deputy D.A., Fulton County District Attorney's Office, 136 Pryor Street, N.W., 3rd Floor, Atlanta, Georgia 30303, for Appellees.

Kevin Alan Anderson, GEORGIA PUBLIC DEFENDER COUNCIL, 104 Marietta St. NW, Suite 600, Atlanta, Georgia 30303, for Appellant in S16A0700.

HUNSTEIN

, Justice.

Appellants Johnny McClendon and Marquice Burks were tried jointly and convicted of malice murder and related offenses in connection with the April 2007 shooting death of Christopher Crawford.¹ Both men now appeal. Though we find no merit in any of the pre-trial and trial phase enumerations raised by Appellants, we agree with Burks that the trial court erred during sentencing when it failed to recognize that his felony murder verdicts were vacated by operation of law. Further, although not raised by McClendon, the trial court's purported merger of his felony murder verdicts was similarly erroneous. See Hulett v. State, 296 Ga. 49, 766 S.E.2d 1 (2014)

(merger error, even if not raised by the parties, may be addressed by appellate court sua sponte). Therefore, we must vacate those aspects of the sentences.

Viewed in the light most favorable to the jury's verdict, the evidence adduced at trial established as follows. Victim Crawford was shot and killed on the evening of April 13, 2007, in a West Atlanta neighborhood. At the time, co-defendant Franklin, a local pimp, was on unfriendly terms with Crawford, whose “baby mother,” Natasha Hurst, had begun working as a prostitute for Franklin. Franklin and Crawford often exchanged taunts and threats when they encountered each other on the street.

On the day of the shooting, Crawford and others were gathered in and around the neighborhood KFC, and Franklin was driving around the area. At one point, Crawford challenged Franklin to get out of his car and fight, to which Franklin replied that he would kill Crawford “with this .45.” Later in the day, Crawford noticed Natalie Crews, a prostitute associated with Franklin, alone outside the KFC and announced he was going to “rob that ho.” Crawford exited the restaurant, approached Crews, and robbed her of the $5 she had on her person.

Crews found Franklin at a nearby gas station and informed him of the robbery. Franklin made a series of phone calls, during which he discussed getting a gun and killing Crawford. Crews testified that she and Franklin, who was driving her blue Chevy Cobalt, left the gas station and met up with Marquice “Queesy” Burks with whom Crews' sister Teresa—also a prostitute working for Franklin—had had a sexual relationship. Burks, who was accompanied by another man unfamiliar to Crews, arrived in a red Chevy Cobalt belonging to Teresa. After the meeting, Crews testified, she and Franklin drove back to the area around the KFC, with Franklin talking on his cell phone, attempting to locate Crawford.

Witnesses Jarvis Green and Shaketa Edwards Ba, who were at the KFC that day, testified that Franklin called them after the robbery to warn them to leave the KFC because he planned to come “show everybody I ain't playing.” Hurst, who was also present, testified that Franklin stated that Crawford would “feel this .45” “since he went and robbed one of my hos.” These witnesses urged Crawford to leave the area, but he refused.

Sometime later, Crawford departed the nearby home of a friend and was walking down the sidewalk with Hurst. Hurst testified that they were approached from the opposite direction by a male with his face partially covered by some article of clothing, who walked past them, then turned and shot at Crawford from behind. Green and Ba, who were standing together nearby, both testified that they saw a man with his face partially covered exit a red car, walk past Crawford and Hurst, turn and fire at Crawford, and return to the red car to flee. Crawford died at the scene from a gunshot wound

to the back, which traversed his heart.

Teresa Crews testified that on the night of the shooting, after prostituting on Cleveland Avenue, she was picked up by Franklin and her sister Natalie. When she and her sister parted from Franklin, Teresa testified, he instructed them to “lay low.” When the sisters subsequently went to retrieve Teresa's car from Burks, he told them about the shooting and remarked that, had he known that the robbery he was avenging involved a mere five dollars, he would never have agreed to it. Both sisters identified Burks as the person they knew as “Queesy.”

Several months after the shooting, Green contacted Atlanta Police Department homicide detective A.C. Smith with information regarding the case. Green, who at the time was in jail on unrelated drug charges, testified at trial that he had been approached by another jail inmate, who admitted that he, along with Burks, at Franklin's behest, had shot Crawford in retaliation for the robbery of Franklin's prostitute. Thereafter, Green identified Johnny McClendon from a photographic lineup as the person who had made this jailhouse statement. Witness Ba also identified McClendon from a photo lineup as having been the shooter, noting that she recognized him by his distinctive eyes.

The State also adduced evidence of communications between cell phones, one registered to Franklin and the other to Burks' girlfriend, spanning the day of the shooting, ending just minutes after the shooting was reported to police; these communications were transmitted from the cell tower covering the vicinity of the crime scene. Franklin's cell phone was disconnected the day after the shooting.

In addition, the State presented evidence that both Franklin and McClendon had made threats to Green after learning he was cooperating with investigators. The State also offered recordings of phone calls made by Franklin from jail in which he issued directives to kill Natalie Crews and Green because they had given statements to police inculpating him in Crawford's murder.

1. Though not raised by either Appellant, we find that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that both McClendon and Burks were guilty of the crimes for which they were convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)

.

Case No. S16A0699

2. McClendon contends that his trial counsel rendered ineffective assistance for failing to move for a mistrial during closing argument after Burks' attorney impermissibly commented on McClendon's right not to testify. We disagree.

To establish ineffective assistance of counsel, a defendant must show that his counsel's performance was professionally deficient and that, but for such deficient performance, there is a reasonable probability that the result of the trial would have been different. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

. If the defendant fails to satisfy either prong of the Strickland test, this Court is not required to examine the other. See Green v. State, 291 Ga. 579, 731 S.E.2d 359 (2012). Although the trial court failed to make any specific factual findings regarding McClendon's ineffectiveness claim, “[r]emand is not mandated if we can determine from the record that the defendant cannot establish ineffective assistance of counsel under the two-prong test set forth in Strickland.” (Citations omitted.) Ruiz v. State, 286 Ga. 146, 149 (2) (b), 686 S.E.2d 253 (2009)

.

The record shows that, during closing arguments, counsel for co-defendant Burks made the following statement:

The next thing that happens in this investigation is Jarvis Green calls the detective on September 27^thand tells him that he is in the jail cell with Johnny McClendon and that my client is the driver but the police think it is his girlfriend. I would have loved to cross-examine Mr. McClendon on that statement, whether he made that statement, what he meant by that statement, if he said that statement at all.

Trial counsel objected, arguing that Burks' attorney had commented on McClendon's right to remain silent; however, counsel did not move for a mistrial at this time. At the motion for new trial hearing, trial counsel testified that he made a tactical decision not to move for a mistrial during closing argument. Specifically, counsel recalled that the State's key witness, Jarvis Green, was in custody at the time, and counsel did not want to risk a less effective second cross-examination of Green if he were released from custody prior to a new trial.

Though the trial court failed to make specific findings of fact with respect to this claim, it is evident from the record that trial counsel's strategic decision regarding a mistrial was not objectively unreasonable. 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.” Romer v. State, 293 Ga. 339, 344, 745 S.E.2d 637 (2013)

. “A court considering a claim of ineffective assistance must apply a ‘strong presumption’ that counsel's representation was within the ‘wide range’ of reasonable professional assistance.” (Citation omitted). Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). To overcome that presumption, McClendon must show that no reasonable counsel would have failed to move for a mistrial. See,...