Sims v. State

• Decision Date: 22 January 2007
• Docket Number: No. S06A2102.,S06A2102.
• Citation: 640 S.E.2d 260,281 Ga. 541
• Parties: SIMS v. The STATE.
• Court: Georgia Supreme Court

281 Ga. 541

640 S.E.2d 260

SIMS v. The STATE.

No. S06A2102.

Supreme Court of Georgia.

January 22, 2007.

J. Pete Theodocion, Augusta, for appellant.

Daniel J. Craig, Dist. Atty., Charles R. Sheppard, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Benjamin Henry Pierman, Asst. Atty. Gen., for appellee.

BENHAM, Justice.

Leroy Vaughn Sims appeals his conviction for the malice murder of Shelley Griffin.¹ The evidence presented at trial showed that after police executed a search warrant at Griffin's home, Griffin confronted appellant, accused him of being a snitch, and threatened him. Griffin left to get his pistol, then returned and called for appellant to come outside. When appellant's brother Dewey and co-defendant Terry Tolbert arrived and approached, carrying guns, appellant joined them. As they approached, Griffin gave his gun to a friend. During the ensuing confrontation, in which Griffin urged the others not to use guns, but to "fight like men," Dewey Sims shot Griffin in the head, killing him.² A witness present at the shooting testified appellant urged his brother to shoot Griffin. The same witness also testified about an encounter a few days before Griffin was killed in which appellant held a gun to the head of a friend of Griffin identified only as Bobby. According to the witness, Griffin intervened on behalf of his friend, prompting appellant to threaten to shoot Griffin in the head.

1. Appellant was prosecuted for murder as a party to the crime. "Evidence of a defendant's conduct prior to, during, and after the commission of a criminal act will authorize the defendant's conviction for commission of the criminal act if a jury could infer from the conduct that the defendant intentionally encouraged the commission of the criminal act. [Cits.]" Jordan v. State, 272 Ga. 395(1), 530 S.E.2d 192 (2000). The evidence adduced at trial, including eyewitness testimony that appellant encouraged his brother to shoot Griffin, evidence that appellant had recently threatened to shoot Griffin in the head, and testimony that appellant joined his brother and Tolbert in the confrontation and fled with them after the shooting, was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of being a party to the murder of Griffin. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Jordan v. State, supra.

Appellant contends he could only be convicted as a party to the murder by evidence that he encouraged the shooting. OCGA § 16-2-20. He argues that his participation as a party was not proved because the only evidence he encouraged his brother to shoot Griffin was testimony that he said something like "do it" or "do him," both of which sound like "Dewey," and because other witnesses testified he tried to dissuade Dewey from violence. However, "on appeal, the function of this Court is not to weigh the evidence or resolve conflicts in trial testimony; this Court is to examine the evidence in the light most favorable to the verdict and to determine whether it is legally sufficient to uphold a finding of the defendant's guilt." Brewer v. State, 280 Ga. 18(1), 622 S.E.2d 348 (2005).

2. When a witness testified about the confrontation in which appellant pointed a gun at Bobby's head, trial counsel made no objection. On appeal, appellant contends the failure to object was ineffective assistance of counsel. His argument is that since the testimony amounted to evidence of an independent offense, its admission without the procedural safeguards of USCR 31.3(b) (notice and hearing prior to admission of evidence of similar transaction) improperly put his character in issue and would require reversal of his conviction. Williams v. State, 261 Ga. 640(2), 409 S.E.2d 649 (1991). Therefore, he contends, both the deficient performance and prejudice prongs of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), have been met.

Fatal to appellant's argument is the fact the testimony complained of did not involve only appellant and another person unconnected to the crime here. As noted above, the confrontation between appellant and Bobby led immediately and directly into a confrontation between appellant and Griffin in which appellant threatened to shoot Griffin. Thus, the testimony...