Scott v. State

• Decision Date: 08 September 2020
• Docket Number: S20A0880
• Parties: SCOTT v. The STATE.
• Court: Georgia Supreme Court

309 Ga. 764

848 S.E.2d 448

SCOTT

v.The STATE.

S20A0880

Supreme Court of Georgia.

Decided: September 8, 2020

Kevin Alan Anderson, Atlanta Circuit Public Defender's Office, 100 Peachtree Street NE, Suite 1600, Atlanta, Georgia 30303, Joseph C. Timothy Lewis, JCTL Law, 204 S. 25th Street #6297, Colorado Springs, Colorado 80904, 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, Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Senior A.D.A., Lyndsey Hurst Rudder, Deputy D.A., Fulton County District Attorney's Office, 136 Pryor Street, S.W., 4th Floor, Atlanta, Georgia 30303, Attorneys for the Appellee.

Peterson, Justice.

Jonathan Peter Scott appeals his convictions for malice murder and other offenses in relation to the shooting death of Gerald Daniels.¹

Scott argues on appeal that the evidence was insufficient to support his convictions and that there was a fatal variance between the indictment charging him with attempt to purchase marijuana and the evidence presented at trial. Scott also argues that his trial counsel was ineffective. We affirm because the trial evidence was sufficient to establish Scott's guilt, and Scott has not established that he was affected by any variance or that his trial counsel was ineffective.

Viewed in the light most favorable to the jury's verdicts, the trial evidence showed the following. Daniels sold drugs out of his Fulton County apartment. Scott, a convicted felon, also lived in the same apartment complex.

On February 17, 2016, Omar Parks, then a high school student who regularly visited Daniels, left his school during the day and went to Daniels's apartment. Parks purchased marijuana from Daniels and spent the rest of the day at Daniels's apartment smoking marijuana and playing video games. That afternoon, Scott went to Daniels's apartment and purchased 3.5 grams of marijuana. Scott returned sometime later, complaining that Daniels had shorted him on the weight. Daniels responded that he gave Scott the proper amount. Scott asked for more marijuana to make up for the alleged shortage on weight, and Daniels agreed. Daniels wrapped the marijuana in two small sacks and handed Scott the sacks along with some money. Scott dropped one of the sacks and asked Daniels to pick it up.

When Daniels bent down to pick up the sack, Scott pulled out a gun; seconds later, Scott shot Daniels multiple times. Scott then began searching cabinets inside Daniels's apartment, noticed Parks for the first time, and pointed a gun at Parks. Parks was able to escape through the back door; he got in his car and drove away from the apartment complex. An officer responded to the shooting, as did paramedics, who pronounced Daniels dead. Daniels died of multiple gunshot wounds

to his head and torso.

A neighbor, Kendrick Brown, saw Scott leave Daniels's apartment earlier in the afternoon and return to the apartment around 7:00 p.m. Brown heard gunshots a few minutes after Scott's return.

Parks eventually talked to the police and told them about the shooting. At the time, Parks gave a physical description of the shooter, whom Parks knew only as "Red." Parks later identified Scott as the shooter during a photographic lineup and also identified Scott at trial.

1. Scott argues that the evidence was insufficient to sustain his convictions because there was no physical evidence showing that he was at the scene of the crime at all, much less that he committed the murder. He also argues that his conviction rests primarily on the testimony of Parks and Brown, who were not credible witnesses.² Scott's claim fails.

When evaluating the sufficiency of evidence, we must determine whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In making that determination, "we view the evidence in the light most favorable to the verdict, and we put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the [jury]." Wilkerson v. State , 307 Ga. 574, 574, 837 S.E.2d 300 (2019) (citation omitted). "As long as there is some competent evidence, even [if] contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld." Coley v. State , 305 Ga. 658, 661 (2), 827 S.E.2d 241 (2019) (citation and punctuation omitted).

Here, Parks testified at trial about Daniels's killing in the apartment and identified Scott as the shooter at trial; Parks also identified Scott as the shooter during a photographic lineup prior to trial. Brown testified that he saw Scott enter Daniels's apartment a few minutes before Brown heard gunshots.

Scott acknowledges that the testimony of a witness is generally sufficient to establish a fact. See OCGA § 24-14-8. He nevertheless argues that the testimony of Parks and Brown was not sufficient in this case because Parks's testimony was self-serving and not credible and Brown's testimony also was not credible and only partially corroborated Parks's testimony by placing Scott near the scene of the crime. Scott also complains that there was no physical evidence showing that he committed any crime. Scott's arguments are unavailing, because "the lack of corroboration with physical evidence only goes to the weight of the evidence and the credibility of the testifying witness, which is solely within the purview of the jury." Johnson v. State , 296 Ga. 504, 505 (1), 769 S.E.2d 87 (2015) (citation and punctuation omitted). The jury was authorized to resolve these issues adversely to Scott and to find beyond a reasonable doubt that he was guilty of the crimes of which he was convicted. See Taylor v. State , 303 Ga. 624, 626 (1), 814 S.E.2d 353 (2018).

2. Scott argues that there was a fatal variance between the indictment and the evidence presented at trial, because he was charged with attempted purchase of marijuana while the evidence at trial established a completed drug transaction. Scott points to Parks's testimony that Scott went to Daniels's apartment to purchase marijuana from Daniels and left after receiving some marijuana. Even if there were a deviation between the allegations in the indictment and the evidence presented at trial,³ there was no fatal variance.

In determining whether there is a fatal variance between the indictment and the trial evidence, we must focus on "whether there has been such a variance as to affect the substantial rights of the accused." Roscoe v. State , 288 Ga. 775, 776 (3), 707 S.E.2d 90 (2011) (citation omitted). Generally, there is no fatal variance if the allegations inform the accused as to the charges against him so as to enable him to present his defense and not be taken by surprise by the evidence at trial, and are adequate to protect the accused against another prosecution for the same conduct. See Atkins v. State , 274 Ga. 103, 105 (3), 549 S.E.2d 356 (2001).

Scott has not established a fatal variance. He has not even alleged how the indictment impaired his ability to present a defense or that he would be subjected to prosecution for a completed offense, as opposed to the attempted purchase. Indeed, "[a] person may be convicted of the offense of criminal attempt if the crime attempted was actually committed in pursuance of the attempt but may not be convicted of both the criminal attempt and the completed crime." OCGA § 16-4-2. Because Scott could have been convicted of criminal attempt when the attempted crime was actually successfully completed, he cannot show that he was surprised by the trial evidence.

And because OCGA § 16-4-2 precludes a conviction for both the criminal attempt and the completed crime based on the same conduct, Scott also cannot show that he could be subjected to another prosecution for the same offense. Therefore, his fatal variance claim fails.

3. Scott argues that his trial counsel was ineffective in several ways. To prevail on any of his claims, Scott must show both that his counsel's performance was constitutionally deficient and that he was prejudiced by this deficient performance. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed,2d 674 (1984). Scott has not carried this high burden.

To establish deficient performance, Scott must "overcome the strong presumption that counsel's performance fell within a wide range of reasonable professional conduct, and that counsel's decisions were made in the exercise of reasonable professional judgment." Mims v. State , 304 Ga. 851, 855 (2), 823 S.E.2d 325 (2019) (citation and punctuation omitted). To demonstrate prejudice, Scott must establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (citation and punctuation omitted). "[D]ecisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course."

Richards v. State , 306 Ga. 779, 781 (2), 833 S.E.2d 96 (2019). Our inquiry focuses on the objective reasonableness of counsel's performance, not counsel's subjective state of mind. See Bozzie v. State , 302 Ga. 704, 714 (5), 808 S.E.2d 671 (2017).

If Scott fails to meet his burden in establishing one prong of the Strickland test, we need not review the other, because a failure to meet either of the prongs is fatal to an ineffectiveness claim. See Smith v. State , 296 Ga. 731, 733 (2), 770 S.E.2d 610 (2015). In considering an ineffectiveness claim, we review a trial court's factual...