Newman v. State

• Decision Date: 16 June 2020
• Docket Number: S20A0409
• Citation: 844 S.E.2d 775,309 Ga. 171
• Parties: NEWMAN v. The STATE.
• Court: Georgia Supreme Court

309 Ga. 171

844 S.E.2d 775

NEWMAN

v.The STATE.

S20A0409

Supreme Court of Georgia.

Decided: June 16, 2020

Steven Lee Sparger, 1111 Bull Street, Savannah, Georgia 31401, Attorneys for the Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Michael Alexander Oldham, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Matthew Breedon, A.D.A., Margaret Ellen Heap, District Attorney, Office of the District Attorney Eastern Judicial Circuit, P.O. Box 2309, Savannah, Georgia 31402, Attorneys for the Appellee.

Melton, Chief Justice.

This is the second appearance of this case in this Court. In State v. Newman , 305 Ga. 792, 827 S.E.2d 678 (2019) (" Newman I "), we reversed the trial court's grant of David Miller Newman's motion for a new trial. In doing so, we found that the trial court erred in concluding that harmful error occurred at Newman's trial based on the court's failure to give a sua sponte jury charge on the use of force in defense of habitation under OCGA § 16-3-23. See Newman I , supra, 305 Ga. at 797-798 (2) (a), 827 S.E.2d 678. However, we remanded the case to the trial court for consideration of the remaining claims raised in Newman's motion for new trial that had not been ruled upon in the trial court's original order on the motion. Id. at 798 (3), 827 S.E.2d 678. This appeal stems from the trial court's denial of Newman's numerous remaining claims relating to the alleged ineffective assistance of his trial counsel. For the reasons that follow, we affirm.

1. Viewed in the light most favorable to the verdicts, the evidence presented at Newman's trial, as summarized in Newman I , was as follows:

[I]n June 2016, Newman worked as a supervisor at a company called Salt Creek Couriers ("Salt Creek"). On the morning of June 16, 2016, [Jason] Wood, one of the employees of Salt Creek, failed to report for work, and Newman went to Wood's home and fired Wood from Salt Creek. Newman took the keys to a company van from Wood and planned to return later to retrieve the van from Wood's home. Although Newman did not have any violent confrontation with Wood at that time, he nevertheless decided to retrieve a handgun before returning to Wood's house based on "a gut instinct." Newman returned to Wood's home around 6:30 p.m. that night in a black van with his friend, Carolee Pritchard, one of the owners of Salt Creek, to retrieve the white company van.

Wood's girlfriend, [Candace] Shadowens, was at home with Wood when Newman and Pritchard arrived. Newman spoke with Wood outside the house, and, at some point, Newman pulled out his gun. When Shadowens came outside, Wood told her to call 911 because Newman had pulled a gun on him. As Shadowens started to dial 911, Newman said, referring to Shadowens, "I'll kill that b**ch." Shadowens replied, "If you're going to shoot somebody, just shoot somebody, you fat b**ch." Newman then shot Wood in the chest as Wood attempted to push Shadowens out of the way. The shell casing from the gunshot was later found in some grass that was, according to the crime scene investigator, "pretty far from where the van would [have been]," which was consistent with the gun being fired outside of the van. Further, almost all of Wood's blood was located on the outside of the van, which indicated, according to the State's forensic pathologist, that Wood was not inside the van, but outside of it, when he was shot. A neighbor of Wood's, Jeremy Zottola, had a surveillance system that captured audio of the gunshot, and that captured audio of Shadowens shouting "If you're going to shoot somebody, just shoot somebody, you fat b**ch," just before the gunshot. The video from the surveillance system only showed Newman and Pritchard driving away from the scene in the black van and the white company van. Another neighbor of Wood who was a registered nurse heard the gunshot and attempted to render aid to Wood at the scene, but Wood died from his gunshot wound. When officers arrived, Shadowens told them that Newman had shot Wood.

While fleeing the scene in the company van, Newman threw his handgun out the window and called 911. The gun was later recovered by police. During the 911 call, Newman claimed that Wood had a gun and shot at him. The police pulled Newman over while he was still on the phone with 911, and he then informed police that he did not know what happened and that he just heard a gunshot and drove off. When Newman was later interviewed by police, he changed his story again, this time claiming that neither he nor Wood had a gun, and that when he heard a loud boom he left the scene. Newman was then arrested, and, when he was interviewed for a second time by police, he changed his story again, now admitting that he had a gun, but claiming that the gun accidentally went off when Wood hit the van door, which jarred the gun.

On September 14, 2016, Newman was charged with malice murder; two counts of felony murder (predicated on aggravated assault and possession of a firearm by a convicted felon); two counts of aggravated assault; attempted murder of Shadowens; four counts of possession of a firearm during the commission of a felony; and possession of a firearm by a convicted felon.

After being indicted, Newman changed his story once more, saying in an interview with the prosecuting attorney that, after he arrived at Wood's house with a gun, Wood got on his phone, saying that he was dialing 911, and also saying to Newman that he was going to "get [his] money" from Newman. Newman said to Wood, while holding the gun, "Don't make me shoot you. Go inside." Wood then entered the house and re-emerged with Shadowens behind him, and Shadowens was carrying a baseball bat. Newman claimed that he got into the company van and put the gun on his lap. Then Shadowens opened the door to the van, which allowed Wood to jump into the van, and, as the gun started to fall from Newman's lap, Newman grabbed it and it accidentally went off. Pritchard asked Newman if he had shot Wood, and Newman said, "No, the gun just went off."

At trial, Pritchard testified that, after Newman got into the company van, Shadowens opened the door to the van and Wood was inside the van when the gunshot went off. Then Pritchard saw Wood run back toward the front of his house. Newman testified in his own defense and changed his story yet again. This time he claimed that, when he arrived at Wood's home, he placed $100 in an envelope and put that envelope inside the cup holder of the company van. Newman alleged that Wood threatened to rob him and that Newman pulled out his gun, cocked it, and said, "No, you ain't." Wood then stopped coming at Newman and got on his phone to call 911. Newman then got into the company van, put the gun on his lap, and tried to lock the van door, but the door did not lock. Then Wood and Shadowens ran to the van and Shadowens opened the door to the van while Wood started to get into the van. The gun then slipped from Newman's lap after Wood hit him and it fired when Newman reached to grab it. Newman believed that the safety was still on and that the gun "just went off" without him trying to shoot it.

Id. at 793-795 (1), 827 S.E.2d 678. Following an April 24-27, 2017 jury trial:

Newman was found guilty of both counts of felony murder and aggravated assault, three of four counts of possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. The jury could not reach a verdict on malice murder (and the State then entered an order of nolle prosequi on that count), and acquitted Newman of attempted murder and one count of possession of a firearm during the commission of a felony. Newman was sentenced to serve life in prison for one of the felony murder counts, twenty concurrent years for the aggravated assault upon Shadowens, five consecutive years for the felon-in-possession-of-a-firearm count, and five years each for two of the three possession-of-a-firearm-during-the-commission-of-a-felony counts. The remaining counts were merged or vacated for sentencing purposes.

Id. at 795 (1) n.1, 827 S.E.2d 678. After this Court reversed the trial court's September 17, 2018 grant of Newman's motion for new trial and remanded the case to the trial court for further proceedings, see id. at 798 (3), 827 S.E.2d 678, the trial court denied Newman's remaining grounds of ineffective assistance of counsel on August 27, 2019, prompting the current appeal.

2. Newman contends that his trial counsel was ineffective in many respects. We disagree.

In order to succeed on his claim of ineffective assistance, [Newman] must prove both that his trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington , 466 U. S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [ (1984) ]. If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. Id. at 697 (IV) ; Fuller v. State , 277 Ga. 505 (3), 591 S.E.2d 782 (2004). In reviewing the trial court's decision, " ‘[w]e accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.’ [Cit.]" Robinson v. State , 277 Ga. 75, 76, 586 S.E.2d 313 (2003).

Wright v. State , 291 Ga. 869, 870 (2), 734 S.E.2d 876 (2012).

(a) Arranging for Newman to be interviewed a second time by Detective Eric Smith (the lead detective in the case) and to be interviewed by the prosecutor, and arranging for Newman to testify under oath at a pretrial immunity hearing.¹

Trial counsel testified at the motion for new trial hearing that he arranged Newman's additional interview with Detective Smith and Newman's interview with the prosecutor at Newman's...