Smith v. State

• Decision Date: 28 February 2020
• Docket Number: S19A1098
• Citation: 308 Ga. 81,839 S.E.2d 630
• Parties: SMITH v. The STATE.
• Court: Georgia Supreme Court

308 Ga. 81

839 S.E.2d 630

SMITH

v.The STATE.

S19A1098

Supreme Court of Georgia.

Decided: February 28, 2020

Jacob Dennis Rhein, Law Offices of Jacob D. Rhein, 265 South Culver Street, Lawrenceville, Georgia 30046, Attorneys for the Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Michael Alexander Oldham, Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Paul L. Howard, Jr., District Attorney, Lyndsey Hurst Rudder, Deputy D.A., Dustin Jeremiah Lee, A.D.A., Fulton County District Attorney's Office, 136 Pryor Street, S.W., 4th Floor, Atlanta, Georgia 30303, Stephany Julissa Luttrell, A.D.A., Fulton County District Attorney's Office, 4776 Terramond Lane, 4th Floor, Smyrna, Georgia 30080, Attorneys for the Appellee.

Warren, Justice.

Omari Smith was convicted of felony murder and other crimes in connection with the shooting death of T’Shanerka Smith (who was not related to Omari Smith).¹ On appeal, Smith contends that the evidence was insufficient to support his convictions; that the trial court erred by denying Smith’s motion for a separate trial; that trial counsel rendered constitutionally ineffective assistance by failing to object to the court’s jury charge on conflicts in testimony; and that the trial court erred in denying Smith’s motion for a continuance of the hearing on his motion for new trial. We disagree and therefore affirm Smith’s convictions.

1. In this Court’s opinion affirming the convictions of Smith’s co-defendant Walter, we summarized the evidence presented at Smith, Walter, and Neloms’s joint trial. Viewed in the light most favorable to the verdicts, that evidence showed the following:

The victim’s death can be traced to a dispute between her brother (Eddie Edwards) and a group that included Walter, Darron Cato, Omari Smith, Andrew Neloms, and Derek McCarter. Edwards lived at the Fulton County apartment complex where he performed maintenance, while McCarter was squatting in another unit at the complex. The night before the shooting, McCarter, Walter, and others gathered to party in that apartment.

The next day, Edwards arrived at the unit and began removing the locks from the doors, telling McCarter and Cato that they needed to leave. Walter became involved in the discussion; he had a firearm and picked up another that had been on a couch. After Edwards returned to his own apartment, a group of four men drove up in a car, and Walter began shooting through one of the backseat windows at a group of Edwards’s cousins gathered outside Edwards’s apartment. No one was injured by the shooting. After the shooting, Edwards and a cousin found McCarter and beat him up.

Walter and his friends left the apartment complex but returned later that day to retaliate. Walter’s girlfriend, Angelica Mitchell, drove Walter, Cato, Neloms, and Omari Smith to the apartment complex. Mitchell dropped off her four passengers outside the complex. Mitchell testified that she saw that at least Walter and Cato had guns when they got out of the car, but she did not know what the men were planning and proceeded directly to work after she dropped them off. Once outside the car, Walter, Cato, and Omari Smith shot in the direction of Edwards’s apartment, where the victim had been standing on the porch. The victim was shot and was pronounced dead after being taken to a hospital.

Several eyewitnesses to the fatal shooting testified at trial. Priscilla Cofer testified that she was standing on Edwards’s porch with the victim when she saw Mitchell drive Walter, Cato, Neloms, and Omari Smith through the neighborhood. A few minutes later, she saw Walter, Cato, and Omari Smith shooting toward the apartment. Edwards’s next-door neighbor, Sharyetta Thomas, and the victim’s boyfriend, Derrick Thompson, both testified that they saw a shooter who was a light-skinned African-American man with dreadlocks, a description that matched Walter’s appearance; Thomas also picked Walter out of a photo array "because he looked like the guy that was shooting."

One of Edwards’s neighbors, Tamika Campbell, testified that after hearing the gunshots, she saw three men running through a field, as well as a fourth man putting a gun in his pants; she picked Walter out of a photo array as the man with the gun. Two witnesses testified that Walter asked them to lie to police by saying that he was with them at the time of the shooting.

Walter v. State , 304 Ga. 760, 761-762, 822 S.E.2d 266 (2018). Additional evidence implicating Smith that was not part of that summary of evidence includes the following: Cofer testified at trial that on the day of the murder, she saw Smith standing to Walter’s right and Cato standing to Walter’s left, and that all three men were "shooting" in the direction of Cofer and her friends, who had been on the porch of Edwards’s apartment. On cross-examination, she confirmed that she was "sure" that she saw Smith shooting. Also, in the days following the shooting, Cofer identified Smith, along with each of the other defendants, out of photographic lineups as the individuals she saw riding together in Mitchell’s car minutes before the shooting.²

In addition to the direct evidence of Cofer’s identification of Smith as a shooter, other circumstantial evidence indicated that Smith participated in the crimes. For example, Walter’s sister testified that shortly after the time of the shooting, Smith and Cato came to her house, which was near Edwards’s apartment complex. According to Walter’s sister, Smith and Cato appeared to be out of breath, as if they had been running. She also noted that Cato looked scared, "like he seen a ghost"; that Smith changed his shirt; and that neither was willing to say where Walter was.

In his first enumeration of error, Smith contends that the evidence adduced at trial was insufficient to support his convictions. Specifically, Smith argues that the "manifest weight of the evidence" showed that it was "extremely unlikely" that he committed the crimes. Smith further argues that the only evidence that he was a shooter was the testimony of Cofer, which he says was inconsistent with prior statements that she made to a 911 operator, a news reporter, and to law enforcement.³

When evaluating challenges to the sufficiency of the evidence, we view the evidence presented at trial in the light most favorable to the verdicts and ask whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; Jones v. State , 304 Ga. 594, 598, 820 S.E.2d 696 (2018) ; see also OCGA § 16-2-20 (defining parties to a crime). We leave to the jury the resolution of conflicts or inconsistencies in the evidence, credibility of witnesses, and reasonable inferences to be derived from the facts. Jones , 304 Ga. at 598, 820 S.E.2d 696 ; Menzies v. State , 304 Ga. 156, 160, 816 S.E.2d 638 (2018). " ‘As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.’ " Williams v. State , 287 Ga. 199, 200, 695 S.E.2d 246 (2010) (citation omitted).

Here, Cofer testified that she personally observed Smith shooting at her and her friends. Moreover, Mitchell testified that she dropped off Smith and the other defendants together—some of them armed—shortly before the shooting; Campbell observed four men either running or possessing a firearm after the shooting; and Walter’s sister’s testimony about Smith’s and Cato’s appearance and behavior after the shooting also inculpated Smith. It was for the jury to assess the credibility of the witnesses—including Cofer—and to resolve any discrepancies in the evidence presented at trial. See Lewis v. State , 296 Ga. 259, 260-261, 765 S.E.2d 911 (2014) (credibility of witness who initially lied to police because she "did not want to get involved. ... is a matter to be decided by the jury that saw and heard the testimony, not by an appellate court reviewing a transcript"). We conclude that the evidence presented at trial was sufficient to authorize a rational jury to find Smith guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson , 443 U.S. at 319, 99 S.Ct. 2781.

2. Smith argues that the trial court abused its discretion in summarily denying Smith’s motion to sever. For the reasons explained below, we disagree.

As we noted in Walter , "[w]hen two or more defendants are jointly indicted for non-capital offenses or a capital offense where the State does not seek the death penalty, ‘such defendants may be tried jointly or separately in the discretion of the trial court.’ " 304 Ga. at 762, 822 S.E.2d 266 (quoting OCGA § 17-8-4 (a) ). In ruling on a motion to sever, a trial court should consider: " ‘(1) the likelihood of confusion of the evidence and law; (2) the possibility that evidence against one defendant may be considered against the other defendant; and (3) the presence or absence of antagonistic defenses.’ " Id. at 763, 822 S.E.2d 266 (quoting Herbert v. State , 288 Ga. 843, 845, 708 S.E.2d 260 (2011) ). The "mere presence of antagonistic defenses" or "possibility that a separate trial would give [a defendant] a better chance of acquittal" is insufficient to show an abuse of discretion. Palmer v. State , 303 Ga. 810, 814-815, 814 S.E.2d 718 (2018) (citations and punctuation omitted). Rather, the defendant bears the burden of showing that " ‘a joint trial was so prejudicial as to amount to a denial of his right to due process.’ " Id. at 815, 814 S.E.2d 718 (quoting Marquez v. State , 298 Ga. 448, 450, 782 S.E.2d 648 (2016) ); see also Walter , 304 Ga. at 763, 822 S.E.2d 266. We review a trial court’s decision to grant or deny a severance motion for an abuse of discretion. Palmer , ...