Nwakanma v. Francis

• Decision Date: 20 January 2015
• Docket Number: S14A1443.,Nos. S14A1442,s. S14A1442
• Citation: 768 S.E.2d 503,296 Ga. 493
• Parties: NWAKANMA v. The STATE. Francis v. The State.
• Court: Georgia Supreme Court

296 Ga. 493

768 S.E.2d 503

NWAKANMA

v.The STATE.

Francis

v.The State.

Nos. S14A1442

S14A1443.

Supreme Court of Georgia.

Jan. 20, 2015.

Reconsideration Denied Feb. 16, 2015.

Brian Steel, Atlanta, for appellant (case no. S14A1442).

Edwin J. Wilson, for appellant (case no. S14A1443).

Patricia B. Attaway Burton, Deputy Atty. Gen., Paula Khristian Smith, Senior Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Jason Matthew Rea, Atlanta, Jesse David Evans, Asst. Dist. Atty., Amelia G. Pray, Asst. Dist. Atty., D. Victor Reynolds, Dist. Atty., Benjamin M. First, Asst. Dist. Atty., Marietta, for appellee.

Opinion

BLACKWELL, Justice.

Miracle Nwakanma and Louis Francis were tried together by a Cobb County jury and convicted of the murder of Justin Brown, among other crimes. Both Nwakanma and Francis appeal. Nwakanma contends only that he was denied due process when the prosecution failed to reveal a deal with a material witness and to correct critical misstatements of fact during that witness's testimony.

Francis contends that the trial court erred when it failed to sever his trial from that of his co-defendants, when it limited his questioning of prospective jurors and refused to strike one of them, when it limited the scope of his cross-examination of a witness for the State, and when it admitted certain evidence at trial. Francis also claims that he was denied the effective assistance of counsel. Upon our review of the record and briefs, we see no error, and we affirm.¹

1. Viewed in the light most favorable to the verdict, the evidence shows that on the evening of August 1, 2007, Nwakanma, Francis, Muhammad Abdus–Salaam, Milton Blackledge, and David Hayes—all members of a criminal street gang known as “MPRC 300”—made plans to rob Dylan Wattecamps, who recently had been involved in a dispute with Abdus–Salaam over a sale of marijuana. Early on the morning of August 2, Hayes gave Nwakanma a .380 caliber pistol, and Blackledge drove Nwakanma, Francis, and Abdus–Salaam to the gated apartment complex in which Wattecamps lived. Hayes drove there separately in his pickup truck, arranged entry for the other four men through a resident he knew, parked his truck across the street from the entry gate, and waited there while the others entered the apartment complex. After parking near Wattecamps's apartment, Blackledge and his passengers began to survey the area on foot. Blackledge and Nwakanma were armed with silver handguns. Wattecamps was having a party in his third-floor apartment, and when one of his guests left, she saw the men standing around and recognized Nwakanma. The four men decided to go forward with their plan, and Nwakanma gave Hayes's gun to Francis.

As the four men were preparing to enter the apartment, another guest came out, and Blackledge hit him in the face. The four men then ran down the stairs and through the parking lot, pursued by Wattecamps and several of his guests. Brown, Scott Keller, and Josh Washington, who had just parked and were walking to the party, heard Wattecamps yell “get them,” and began to chase the four men. Blackledge and Francis then fired several shots, one of which fatally wounded

Brown in the chest. Nwakanma, Francis, Blackledge, and Abdus–Salaam climbed over the apartment complex fence and hurried into Hayes's truck. Both Francis and Blackledge claimed to have shot Brown, and Hayes drove everyone to Abdus–Salaam's apartment. Six matching .380 caliber shell casings and three .380 caliber projectiles, including the one that entered Brown's chest, were recovered. All of the shell casings came from the same gun, and two of the projectiles, including the one that killed Brown, were fired from the same pistol. Francis and Blackledge admitted to being present at the apartment complex during the shooting, and while in jail, Francis confessed his involvement to another inmate. Abdus–Salaam confessed his role in the crimes to police and testified at trial.

Neither Nwakanma nor Francis disputes the legal sufficiency of the evidence. We nevertheless have independently reviewed the evidence to assess whether it is sufficient to sustain their convictions. Upon that review, we conclude that the evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Nwakanma and Francis were guilty of the crimes of which they were convicted. Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. We now consider Nwakanma's contention that the prosecution failed to reveal a deal between the State and Abdus–Salaam and failed to correct critical misstatements of fact about the existence of a deal during Abdus–Salaam's testimony. It is settled that the State has “a duty to reveal any agreement, even an informal one, with a witness concerning criminal charges pending against that witness, and a failure to disclose such an agreement constitutes a violation of the due process requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).” Wimes v. State, 293 Ga. 361, 362(2), 744 S.E.2d 787 (2013). See also Giglio v. United States, 405 U.S. 150, 154–155, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). In addition, the State may not knowingly use a witness's false testimony that he received no promise of consideration in exchange for his testimony, and the prosecutor's failure to correct such testimony that he knows to be false denies the defendant his right to due process of law. Napue v. Illinois, 360 U.S. 264, 269–270, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) ; Smith v. Zant, 250 Ga. 645, 651(3), 301 S.E.2d 32 (1983).

At a pretrial hearing in this case, both the prosecutor and Abdus–Salaam confirmed that Abdus–Salaam had no plea agreement or deal with the State but that he nevertheless would waive his Fifth Amendment rights and testify against his co-defendants. At trial, Abdus–Salaam testified that there was no plea bargain or deal for his testimony, that he did not understand any future deal to depend on how he testified, that he did not expect to gain any benefit or leniency from his testimony, and that he decided to testify to clear his conscience when his co-defendants would not admit what they had done. In an effort to show that Abdus–Salaam did have a deal when he testified, Nwakanma points to the prosecutor's testimony at the hearing on the motion for new trial that the lawyer for Abdus–Salaam continually asked for reduced charges and a lesser sentence in exchange for his testimony and that the prosecutor said he would keep an open mind toward future discussions. But this testimony did not suggest the existence of even an informal agreement. See Klinect v. State, 269 Ga. 570, 572(2), 501 S.E.2d 810 (1998). And the prosecutor indicated that there was no specific agreement to discuss a possible plea after completion of the codefendants' trial. See id. “[N]ot everything said to a witness or to his lawyer must be disclosed.... Some promises, agreements, or understandings do not need to be disclosed, because they are too ambiguous, or too loose or are of too marginal a benefit to the witness to count.” Tarver v. Hopper, 169 F.3d 710, 717 (C) (11th Cir.1999).

Abdus–Salaam's lawyer testified that the only plea offer he had received—for a sentence of 25 years—had been rejected before the co-defendants' trial, that there was no deal, that there were no specific conversations with the prosecution about how the resolution of Abdus–Salaam's case would be addressed further after his testimony, and that the lawyer had given Abdus–Salaam the admittedly risky advice to testify “blindly,” simply hoping for a better offer after the co-defendants' trial. Abdus–Salaam's testimony on motion for new trial generally was consistent with that of his lawyer. That Abdus–Salaam “or his counsel held a hope that testifying in [the co-defendants'] trial would benefit him later does not show an agreement.” Klinect, 269 Ga. at 572(2), 501 S.E.2d 810 (citation omitted). See also Tarver, 169 F.3d at 717 (C) (“The simple belief by a defense attorney that his client may be in a better position to negotiate a reduced penalty should he testify against a codefendant is not an agreement within the purview of Giglio. ” (Citation omitted.)); Hudson v. State, 277 Ga. 581, 586(5), 591 S.E.2d 807 (2004) (“That [the witness] may have expected help for his cooperation does not establish that a deal or agreement was made between him and the State.” (Citation omitted.)). And “there is no evidence that the prosecutor encouraged [Abdus–Salaam] or [his] counsel to believe that [he] would, in fact, benefit from testifying against [Nwakanma].” Varner v. State, 297 Ga.App. 799, 802(1)(a), 678 S.E.2d 515 (2009). The fact that after the codefendants' trial Abdus–Salaam entered a plea agreement does not itself establish the existence of a deal. See Wimes, 293 Ga. at 363(2), 744 S.E.2d 787.

Citing the testimony of the prosecutor (as corroborated by Abdus–Salaam's lawyer) that no deal or offer was extended to Abdus–Salaam in exchange for his testimony, the trial court found that Nwakanma had “failed to show evidence of any deal.” (R. 338) This finding was not clearly erroneous, but rather “was authorized, and there was no due process violation.” Klinect, 269 Ga. at 572(2), 501 S.E.2d 810 (citation omitted). See also Wimes, 293 Ga. at 363(2), 744 S.E.2d 787 ; Peralta v. State, 276 Ga. 218, 219(2), 576 S.E.2d 853 (2003) (“The trial court's findings of fact on motion for new trial are upheld unless clearly erroneous.” (Citations omitted.)). Because the evidence refutes Nwakanma's claim that there was a deal between Abdus–Salaam and the State, there is likewise no factual basis for Nwakanma's claim that Abdus–Salaam's testimony about his motivation for testifying was false. See Varner, 297 Ga.App. at 802(1)(b), 678 S.E.2d 515. To the extent that Nwakanma is arguing that the State engaged in misconduct by eliciting that testimony and making arguments about it to the jury, there is “no...