Morris v. State

• Decision Date: 05 March 2018
• Docket Number: S17A1402
• Citation: 811 S.E.2d 321
• Parties: MORRIS v. The STATE.
• Court: Georgia Supreme Court

303 Ga. 192

811 S.E.2d 321

MORRIS

v.The STATE.

S17A1402

Supreme Court of Georgia.

Decided: March 5, 2018

John Walter Kraus, Jonesboro, for Appellant.

Patricia B. Attaway Burton, Paul L. Howard, Paul L. Howard, Paula Khristian Smith, Lyndsey Hurst Rudder, Lyndsey Hurst Rudder, Vanessa Therese Meyerhoefer, Christopher M. Carr, Joshua Daniel Morrison, Atlanta, for Appellee.

Grant, Justice.

Appellant Willie Morris was found guilty of felony murder and other crimes in connection with the July 2004 shooting death of Fabian Miller. Morris now appeals, asserting various evidentiary and jury instruction errors, ineffectiveness of his trial counsel for several reasons, and that the trial court failed to properly exercise its discretion as the thirteenth juror in denying his motion for a new trial. Finding no error, we affirm.¹

I.

Viewed in the light most favorable to the jury's verdict, the evidence at trial showed that on the evening of July 26, 2004, Willie Morris discovered that his bedroom door had been kicked in and $200 was missing. There were no signs of forced entry elsewhere in his apartment. Morris believed that his roommate, Fabian Miller, had stolen the money.

Morris exited his apartment and saw Miller arriving in the complex in a vehicle driven by O.J. Thomas and also occupied by another passenger, Deondray Little, who resided at the same apartment as Morris and Miller. Thomas remained in the car, while Miller and Little got out and began traversing a walkway that led around to the back of the apartment building. Miller and Little began talking to some other people who were hanging out beside the apartment building when Morris came around the corner of the building and confronted Miller about the stolen money. Words were exchanged, and witnesses heard Morris say to Miller "I thought we were homeboys." Morris then shot Miller in the abdomen and ran away. Miller managed to get back in the car, and Thomas drove him to the gas station they had just come from because they had seen a police officer there. Although Thomas was able to get the attention of the officer, who tried to assist, Miller died from the gunshot wound

within minutes. Detective Michael Willis arrived at the gas station, observed the gunshot wound in Miller's lower right abdomen, and found $201 in cash and various other items on Miller's person—but no gun.

The next day, Morris called Detective Willis's office and said that he did not mean to shoot Miller in the stomach; he only meant to shoot him in the leg. Morris did not mention self-defense or anything about Miller having or reaching for a gun at that time. Two days after the shooting, Morris also called Miller's mother and said that he did not mean to kill Miller and meant only to shoot him in the leg. Again, Morris made no mention of self-defense or Miller having or reaching for a gun. Morris also called the Atlanta Police Department and said that he meant to shoot Miller in the leg. On August 2, Morris turned himself in to Atlanta Police. Morris gave a statement, claiming for the first time that he shot Miller in self-defense because it appeared that Miller was reaching for a gun. Morris claimed that when he came outside to ask Miller about the money, Miller said "Y'all f n* * * * *s going to stop playing with me," and then reached toward his left hip, leading Morris to believe that Miller was reaching for a gun and causing Morris to shoot Miller in self-defense.

Morris testified at trial that he had his gun with him because he had been robbed and jumped in the past. Morris also testified that he had approached Miller to ask what happened regarding his broken-into room and stolen money. According to Morris, he was in fear for his life when Miller reached toward his hip because he knew what Miller "was capable of." Morris again stated that he was trying to shoot Miller in the leg, and also that he was unaware that a single shot could be fatal. Other defense witnesses testified as to Morris's good character. Several witnesses for the State, on the other hand, testified that they did not see Miller reach for a gun before the shooting or see him with a gun at any point that evening.

Although Morris has not challenged the sufficiency of the evidence supporting his convictions, we have independently examined the record according to our usual practice in murder cases and conclude that the evidence admitted at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Morris was guilty of the crimes of which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.E.2d 560 (1979).

II.

Morris asserts that the trial court erred in preventing the defense from questioning Little on cross-examination about Miller's reputation for violence and carrying a gun, in refusing to bring Little back into court for further examination by Morris to develop his justification defense, and in denying Morris's motion for a short continuance to get Little back into court to testify. We find no reversible error as to any of these contentions.

In general, "a murder victim's reputation for violence is irrelevant and inadmissible in criminal proceedings." State v. Hodges , 291 Ga. 413, 416, 728 S.E.2d 582 (2012).² But a murder victim's reputation for violence "may be offered as evidence by the accused upon the accused making a prima facie showing that the victim was the aggressor and was assaulting the accused, who was acting to defend himself." Id. (citing Woods v. State , 269 Ga. 60, 63, 495 S.E.2d 282 (1998) ). "If such showing is made, evidence of the victim's reputation for violence is then admissible to corroborate the accused's story." Id.

Little was only the second witness called to testify by the State, and the defense had not yet even begun establishing a prima facie case of self-defense. The trial court, therefore, properly prevented Little from being questioned about Miller's reputation for violence and carrying a gun at that point in trial.

At the conclusion of Little's testimony during the State's case-in-chief, the defense stated "We reserve the right to recall this witness, your honor," and the trial judge responded "All right. Mr. Little. You are going to be on call still." There is no support in the record, however, for Morris's enumeration of error that the trial court refused to bring Little back into court for further examination by Morris to develop his justification defense. The closest semblance of any such refusal was the trial court's denial of Morris's motion for a continuance to get Little back into court to testify, which Morris enumerates as a separate error. But "[w]hether to grant a motion for continuance is entirely within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion." Carter v. State , 285 Ga. 394, 398, 677 S.E.2d 71 (2009) (punctuation omitted).

A fundamental flaw in all of Morris's contentions regarding the testimony he hoped to elicit from Little is that Morris has failed to show what that testimony would have been. See OCGA § 17-8-25

(application for continuance due to absence of witness must show that witness's testimony is material). Presumably, Morris believes Little would have testified that Miller had a reputation for violence and for carrying a gun, and that Miller had a prior firearm possession conviction. Morris never made any proffer as to the substance of that testimony, however, nor did he call Little to testify at the hearing on Morris's motion for a new trial. See, e.g., Letson v. State , 236 Ga. App. 340, 341, 512 S.E.2d 55 (1999) (no abuse of discretion in denying continuance because defendant failed to substantiate his claim that absent witness would have provided material testimony by failing to call that witness at motion for new trial hearing); see also Wells v. State , 281 Ga. 253, 255, 637 S.E.2d 8 (2006) (rejecting ineffective assistance claim based on failure to request continuance to locate potential exculpatory witness because defendant "did not make any proffer whatever to show that the testimony of such witness[ ] would have been relevant and favorable, and thus, would have resulted in a different verdict"). Morris cannot obtain a new trial based on his speculation about what else Little would have testified to.

Moreover, the jury heard evidence of Miller's reputation for violence during Morris's testimony and also saw Miller's certified weapons conviction, which was admitted over the State's objection, so any additional testimony from Little on these points would have been cumulative. See Nix v. State , 280 Ga. 141, 144, 625 S.E.2d 746 (2006) (no reversible error because excluded testimony was cumulative of other evidence introduced, including defendant's statement). Finding no abuse of discretion in this regard, we reject Morris's contentions.

III.

Morris next contends that the trial court erred in denying his request to question two witnesses about Morris's state of mind and in not allowing the defense to question another witness about one of Miller's tattoos.

The trial court sustained the State's objections to the defense asking one witness: "Had you ever had the opportunity to see [Morris] after he had been in a bad situation?"; and asking the other witness: "In 2003, did you have the opportunity to see Mr. Morris after an unusual situation?" Again, Morris has failed to make any proffer as to what he claims these witnesses would have testified to, and he called neither witness to testify at the hearing on his motion for a new trial. He has failed to show any abuse of discretion, therefore, in these evidentiary rulings by the trial court. Morris also argues that the trial court erred in preventing him from eliciting testimony that Miller's "MOB" tattoo, visible in a photograph of his body, meant "money over b* * * *es," because that would have corroborated Morris's justification defense by showing how highly Miller valued money. But we see...