Roseboro v. State

• Decision Date: 06 April 2020
• Docket Number: S20A0159
• Citation: 841 S.E.2d 706,308 Ga. 428
• Court: Georgia Supreme Court
• Parties: ROSEBORO v. The STATE.

308 Ga. 428

841 S.E.2d 706

ROSEBORO

v.The STATE.

S20A0159

Supreme Court of Georgia.

Decided: April 6, 2020

Michael Wayne Tarleton, for Appellant.

Sherry Boston, District Attorney, Emily Kathleen Richardson, Destiny H. Bryant, Elizabeth Haase Brock, Assistant District Attorneys, Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Matthew Min-soo Youn, Assistant Attorney General, for Appellee.

Warren, Justice.

Raekwon Roseboro was convicted of malice murder and other crimes in connection with the shooting death of Willie Deandre Jackson and the aggravated assault of Kendrick Ellison.¹ On appeal, Roseboro contends that his trial counsel provided constitutionally ineffective assistance. We disagree and affirm Roseboro's convictions.

1. Viewed in the light most favorable to the jury's verdicts, the evidence presented at Roseboro's trial showed that on November 28, 2015, Hoye Rashad Anderson sent a text message to Ellison—whom Anderson knew from high school—seeking to purchase five grams of marijuana and five Percocet pills from Ellison. Jackson, who was with Ellison at the time, drove Ellison to a DeKalb County intersection at approximately 10:00 p.m. for the transaction. Jackson pulled up behind a gray car that was already parked at the intersection. Anderson, Roseboro, and another person were in the gray car. Once Jackson parked behind them, Anderson and Roseboro exited the car and approached the passenger's side of Jackson's car, where Ellison was sitting.

Roseboro was wearing a black hoodie, had a glove on his right hand, and, according to Ellison, was carrying a gun that "looked like a revolver" "on his hip line." Roseboro told Ellison that he did not have enough money to purchase the drugs for the price that Ellison and Anderson had initially agreed on. Ellison said "that he was going to work with" Roseboro and "going to give him [five] grams [of marijuana] and three Percocets instead of [five]" for the money that Roseboro had with him. Then, while Jackson had his "head down" and was dividing up the drugs, "gunshots rang out." Anderson had looked down at his phone and "when [he] looked up," he saw Roseboro "shooting into [Jackson's] car." Jackson was shot in the head and Ellison was shot in the neck.

As soon as Jackson was shot, his foot hit the gas pedal and the car began "going full speed."² The car drove through the intersection, collided with another car, and finally came to a stop after running into an embankment. Ellison was able to escape but was unable to pull Jackson's body out of the car. He ran to a nearby house for help, and the homeowner called 911. The car caught on fire as police and an ambulance arrived.

Ellison was transported to the hospital, where he gave a statement to detectives and provided descriptions of the suspects. After Ellison left the hospital, he sent Detective Lynn Shuler a picture of Anderson from Anderson's Facebook account and identified Anderson in a six-person photo lineup. Soon after, Anderson was arrested. Anderson later gave a statement to law enforcement identifying Roseboro as the shooter, and Roseboro was ultimately arrested.

At trial, Anderson testified that Roseboro had periodically lived with Anderson in Anderson's mother's home, and that he and Roseboro were so close at one point that "you could have called us brothers." Anderson also testified that he saw Roseboro "shooting into the car" during the drug transaction. In addition, Ellison identified Roseboro in a photo admitted into evidence at trial and also made an in-court identification of Roseboro as the shooter. The medical examiner testified that Jackson's cause of death was a gunshot wound to the head. Additionally, an investigator testified that, after the shooting, Roseboro's cell phone search history included internet searches for local news stories and "Crime Stoppers" tips about the shooting.

Roseboro does not contest the legal sufficiency of the evidence supporting his convictions. Nevertheless, consistent with this Court's general practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial was sufficient to authorize a rational jury to find Roseboro guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Roseboro argues that his trial counsel was ineffective for (a) failing to move to suppress a photo identification made by Ellison and (b) failing to call Detective Shuler to impeach Ellison's testimony about a prior identification of Roseboro that Roseboro suggested never happened.

To prevail on a claim of ineffective assistance of counsel, a defendant generally must show that counsel's performance was deficient and that the deficient performance resulted in prejudice to the defendant. See Strickland v. Washington , 466 U.S. 668, 687-695, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Wesley v. State , 286 Ga. 355, 356, 689 S.E.2d 280 (2010). To satisfy the deficiency prong, a defendant must demonstrate 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) ; see Strickland , 466 U.S. at 687-688, 104 S.Ct. 2052. This requires a defendant to overcome the "strong presumption" that trial counsel's performance was adequate. Marshall v. State , 297 Ga. 445, 448, 774 S.E.2d 675 (2015) (citation and punctuation omitted). To carry the burden of overcoming this presumption, a defendant "must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not." Davis v. State , 299 Ga. 180, 183, 787 S.E.2d 221 (2016). To satisfy the prejudice prong, a defendant must establish a reasonable probability that, in the absence of counsel's deficient performance, the result of the trial would have been different. See Strickland , 466 U.S. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "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." Lawrence v. State , 286 Ga. 533, 533-534, 690 S.E.2d 801 (2010).

(a) Roseboro argues that his trial counsel was ineffective for failing to move to suppress a photo identification made by Ellison. We disagree.

At the hearing on Roseboro's motion for new trial, the lead prosecutor in Roseboro's case testified that she met with Ellison in her office two or three weeks before trial. During the meeting, the prosecutor gave Anderson's cell phone³ to Ellison and asked Ellison if he recognized anyone other than Anderson in the phone's pictures. The prosecutor never asked Ellison to identify Roseboro or the shooter in the case, and no conversation occurred while Ellison was looking through the photos stored on the phone. At some point, Ellison showed the prosecutor a photo from the phone that depicted three males, one of whom was Anderson, and identified the "darker-skinned male," whom the prosecutor knew to be Roseboro, as the shooter.⁴ The prosecutor did not say anything in response to Ellison's identification of Roseboro as the shooter. At the motion for new trial hearing, she testified that she "did not believe this was a photographic lineup" and that she handed Ellison the phone because she was "wondering if he recognized anyone in the phone." She also acknowledged that a third suspect had been in the car with Anderson and Roseboro on the night of Jackson's murder who had never been "explored" or "arrested."

The prosecutor also testified that several days before trial, she emailed Roseboro's trial counsel to notify him of Ellison's identification of Roseboro. She wrote:

Last night I asked Ellison to take a look at some of the pictures from Anderson's phone dump and asked him if he recognized anyone. He immediately indicated upon seeing your client in a group photo that he was the shooter. I can scan you the five photos^{[5 ]} from the phone dump that he looked at in my presence if you would like.

Trial counsel replied to the prosecutor's email, writing: "They know one another so I don't think there is [an] identification issue and he has been consistent on who he believes the shooter is. Forward them if you have time. If not I can preview them Monday morning."

At the hearing on Roseboro's motion for new trial, Roseboro's trial counsel testified that he might have confused Ellison (a victim) for Anderson (Roseboro's co-indictee) when he read the prosecutor's email, which would explain why he replied that identification was not an issue since Anderson and Roseboro already knew each other.⁶ When asked why he did not file a motion to suppress when he realized that the identification was made by Ellison—and not Anderson—trial counsel testified that "under normal circumstances, [he] probably [would have] objected," but that when determining whether to move to suppress evidence, he generally considers whether he believes the motion will be granted, among other factors, and does not "go forward with the motion to suppress" if he does not "think it will be granted." He also expressed a strategic preference to cross-examine a witness who makes an identification once, as opposed to twice (once at the motion to suppress hearing and then again at trial)—a scenario that would allow the witness to prepare for the second cross-examination—and testified that he sought to attack Ellison's credibility through cross-examination.

In its order denying Roseboro's motion for new trial, the trial court concluded that if trial counsel had filed a motion to suppress Ellison's identification, it would not have granted the motion because...