Powell v. State

• Decision Date: 21 October 2019
• Docket Number: S19A0721
• Citation: 834 S.E.2d 822,307 Ga. 96
• Court: Georgia Supreme Court
• Parties: POWELL v. The STATE.

307 Ga. 96

834 S.E.2d 822

POWELL

v.The STATE.

S19A0721

Supreme Court of Georgia.

Decided: October 21, 2019

Troy E. Golden, for appellant. Gregory W. Edwards, District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Elizabeth H. Brock, Assistant Attorney General, for appellee.

Ellington, Justice.

Appellant Kenneth N. Powell was tried before a Dougherty County jury and convicted of malice murder in the shooting death of Lionel Turner.¹ Appellant contends that the evidence was insufficient to sustain his conviction, that the trial court erred in instructing the jury, and that his trial counsel provided ineffective assistance. For the reasons that follow, we find no merit in these claims of error, and we affirm.

Viewed in a light most favorable to the verdict, the evidence at trial showed the following. In mid-June 1993, Appellant’s cousin, Tony Powell ("Powell"), was allegedly assaulted by Turner and Stephon Davis. On June 19, Appellant and Donny Mimbs walked around their neighborhood searching for Turner and Davis. A witness testified that Appellant had "a problem" with Turner. Appellant was carrying a gun in his hand and looked upset.

During their search, Appellant and Mimbs crossed paths with Powell and two other men, who joined the group. Powell asked Appellant to put the gun away, but Appellant refused. Appellant told Powell that he was looking for Davis because Davis and Turner had "jumped on" Powell.

When the group reached Davis’s girlfriend’s house, Appellant told a resident to tell Davis that Appellant was "going to get him" because "it wasn’t right how [Davis] did that night when they was fighting." After learning that Davis was not there, the group began walking toward Powell’s aunt’s house. On the way, Appellant saw Turner outside his grandmother’s house, standing on the porch. Appellant began walking toward Turner, and Mimbs and Powell followed.

Turner’s grandmother, who was on the porch with Turner, testified that she saw three men approaching "like they were mad." Mimbs "reached and got the gun" from Appellant and shot Turner. Turner’s grandmother ran into her house after the first shot. She testified that, before she fled inside, she saw that Appellant and Powell remained on the porch steps. Once inside, she heard three more shots.

According to Powell, Mimbs went up onto the porch first. Mimbs told Appellant "you ought to kill the S. O. B.," and then "snatch[ed]" the gun from Appellant. Mimbs shot Turner once and then, after a struggle between the two, shot him a second time, after which Turner collapsed. Mimbs fired a third shot at Turner’s hip area. Appellant then took the gun back from Mimbs and shot Turner in the knee, after which Mimbs grabbed a chair and began hitting Turner in the back of the head. After the shooting, according to Powell, he and Appellant "ran off separately."

Another cousin of Powell’s, Larry Brown, was approximately four houses away from the scene at the time of the shooting. He testified that he saw Mimbs grab the gun from Appellant and fire four shots. Brown saw Appellant "throw a chair." Another witness testified that, after hearing about the shooting, she accused Appellant of shooting "that boy," and Appellant responded, "yeah," adding that anyone who assaulted his cousin "needs to be dead."

The testimony of the pathologist who performed Turner’s autopsy showed that Turner suffered gunshot wounds

to the chest, abdomen, right buttocks, and right knee. According to the pathologist, Turner bled to death. The pathologist agreed on cross-examination that the wound to Turner’s chest, which passed through both lungs and the aorta, would have caused death within a minute. He also testified that, in reference to the gunshot to the knee, "[i]f it contributed at all [to Turner’s death], it was a minor factor."

1. Appellant contends that the evidence was legally insufficient to support his malice murder conviction because Mimbs is solely responsible for Turner’s death. Appellant argues that, while evidence showed that he shot Turner in the knee, the knee injury

was minor and Turner was already dead because his aorta had been severed when Mimbs shot him in the chest. Further, Appellant argues, he did not aid or abet Mimbs, who grabbed the gun out of Appellant’s hands and then fatally shot Turner.

When evaluating the sufficiency of evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U. S. 307, 319 (III) (B) 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis omitted). Here, the evidence is sufficient to show that Appellant was a party to the crime of malice murder. See OCGA § 16-5-1 (a) ("A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being."); OCGA § 16-2-20 (a) ("Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.").

In relevant part, a person is concerned in the commission of a crime only if he "(3) Intentionally aids or abets in the commission of the crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime." OCGA § 16-2-20 (b) (3), (4). Further, "a conviction as a party to a crime requires proof that the defendant shared a common criminal intent with the principal perpetrator of the crime." Downey v. State , 298 Ga. 568, 569 (1), 783 S.E.2d 622 (2016) (citation and punctuation omitted). "While mere presence at the scene of a crime is not sufficient evidence to convict one of being a party to a crime, criminal intent may be inferred from presence, companionship, and conduct before, during and after the offense." Navarrete v. State , 283 Ga. 156, 158 (1), 656 S.E.2d 814 (2008) (citation and punctuation omitted).

The evidence showed that Appellant and Mimbs canvassed the neighborhood together in search of Turner and Davis. Appellant was openly carrying a gun, refused to put it away, and led the group to the porch where Turner was shot to death. Even if Mimbs took the gun and started shooting first, Appellant took the gun back and shot Turner as well. Appellant, who believed that Turner had previously assaulted Powell, thereafter acknowledged that he had shot Turner and told the witness that anyone who had assaulted his cousin needed "to be dead." It may be reasonably inferred from the evidence that, even though Mimbs fired the fatal shots, the shooting was a common enterprise between Appellant and Mimbs in which Appellant aided Mimbs through his active participation and in which they shared in the criminal intent to kill Turner. It follows that a rational trier of fact could have found beyond a reasonable doubt that Appellant was a party to the crime of malice murder. See Powell v. State , 291 Ga. 743, 745 (1), 733 S.E.2d 294 (2012) (evidence was sufficient to support appellant’s murder conviction as a party to the crime even assuming that appellant’s companion, and not the appellant, fired the fatal shot, as they were engaged in a common enterprise at the time of the shooting and it could be reasonably inferred from the evidence that they shared a criminal intent); Teasley v. State , 288 Ga. 468, 469, 704 S.E.2d 800 (2011) (that appellant did not actually fire the gun that fatally wounded

the victim was immaterial to his conviction as a party to the crime of malice murder).

2. Appellant contends that the trial court erred in failing to instruct the jury on (a) causation in a homicide case, (b) the respective responsibilities of the trial court and the jury, (c) circumstantial evidence, and (d) venue. Although Appellant reserved the right to object to the jury instructions as was customary at the time of his 1993 trial,² he was not relieved from the necessity of requesting instructions other than "in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence." Johnson v. State , 253 Ga. 37, 38, 315 S.E.2d 871 (1984) (citation and punctuation omitted). See also OCGA § 5-5-24 (b) ("In all cases, at the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may present to the court written requests that it instruct the jury on the law as set forth therein. . . ."); Barrett v. State , 292 Ga. 160, 165-166 (2), 733 S.E.2d 304 (2012) (while appellant reserved objections to the charge during his trial in 2005, he was not relieved from the necessity of requesting instructions; the trial court did not err in omitting the unrequested charge as the omission was not clearly harmful as a matter of law). The only charge requested in writing by Appellant concerned mere presence at the scene of a crime.

(a) Appellant contends that the trial court erred in failing to instruct the jury sua sponte on causation in a homicide case. That standard, as Appellant correctly points out, is proximate cause. See State v. Jackson , 287 Ga. 646, 648-649 (2), 697 S.E.2d 757 (2010).

The indictment, which the trial court read to the jurors and which was provided to them during their deliberations, charged Appellant with the offense of malice murder in that he "did unlawfully and with malice aforethought cause the death of ... Turner ... by shooting [him]." The trial court instructed the jury that "a person commits murder when that person unlawfully and with malice aforethought ... causes the death of another human being." The court also thoroughly instructed the jury on the law of parties to a crime. Considering the charge as a whole, the jury was informed that, in order to convict, it was required to determine...