Wells v. State

• Decision Date: 05 May 2014
• Docket Number: No. S14A0491.,S14A0491.
• Citation: 758 S.E.2d 598,295 Ga. 161
• Parties: WELLS v. The STATE.
• Court: Georgia Supreme Court

295 Ga. 161

758 S.E.2d 598

WELLS

v.The STATE.

No. S14A0491.

Supreme Court of Georgia.

May 5, 2014.

Steven Eric Phillips, Office of the Public Defender, Atlanta, for appellant.

Patricia B. Attaway Burton, Deputy Atty. General., Paula Khristian Smith, Sr. Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Jason Matthew Rea, Asst. Atty. Gen., Department of Law, Paul L. Howard, Jr., Dist. Atty., Paige Reese Whitaker, Deputy Dist. Atty., Sheila Elizabeth Gallow, Sr. Asst. Dist. Atty., Fulton County District Attorney's Office, for appellee.

NAHMIAS, Justice.

Appellant Sephus Wells was convicted of felony murder based on aggravated assault with a deadly weapon and possession of a firearm during the commission of a felony, in connection with the shooting death of Corey Sinkfield. On appeal, he contends that his trial counsel provided ineffective representation and that the trial court violated OCGA § 17–8–57 by making an impermissible comment to the jury. We affirm.¹

1. Viewed in the light most favorable to the verdict, the evidence presented at trial showed as follows. On the night of November 21, 2003, Appellant, holding a semi-automatic handgun, approached Sinkfield in a busy parking lot at an apartment complex for the elderly and disabled. Appellant began yelling at Sinkfield, who was unarmed, saying, “Talk that s – – t that you were talking,” and, “I don't hear you saying anything now.” Gary York, a two-time gunshot victim, was nearby. York knew Appellant and Sinkfield and positioned his wheelchair between them in an attempt to defuse the situation. York was able to convince Appellant to leave, but as Appellant walked away, he turned back and yelled, “It ain't over, motherf – – – – r.” York persuaded Sinkfield to stay in the parking lot for a few minutes, but then Sinkfield walked off in the same direction that Appellant went, toward the apartment complex up the street where both Appellant and Sinkfieldlived. Less than ten minutes later, two gunshots rang out from that direction.

Derrick Gardner testified that he saw Appellant shoot Sinkfield with a handgun across the street from the complex where the two men lived. Gardner, a crack cocaine addict at the time, lived in the same complex and knew Appellant and Sinkfield. According to Gardner, they were arguing at the top of a flight of concrete steps when Appellant fired his gun once into the air, telling Sinkfield that he needed “to get somewhere.” When Sinkfield did not flinch or move, Appellant walked straight toward him and swung at his face with the gun, which fired again. Sinkfield fell into some bushes and then down the steps. As Appellant walked to the bottom of the steps, he said, “I'm tired of you young punks ... trying me.” Gardner addressed Appellant by name and exclaimed, “Look what you just did”! Appellant turned around, saw Sinkfield lying on the steps bleeding profusely, and said, “Oh, s – – t,” before running away. Gardner, who had an outstanding warrant for his arrest, also ran away, telling two women that he passed to call 911 because a young man had just been shot in the head.

Sinkfield died at the scene. The medical examiner concluded that he was killed by a single gunshot to the head. The bullet entered through Sinkfield's left cheek and was fired from within a few inches of his face; however, there was no contact wound at the point of entry. Sinkfield had no bruising on his face but had scrapes on his face and hands consistent with a fall on concrete steps.

Two days after the shooting, Gardner told the police that he saw Appellant shoot Sinkfield and identified Appellant in a photographic lineup. The next day, a single 9mm shell casing was recovered from the crime scene, but the murder weapon was never found. At the time of Appellant's trial, Gardner was incarcerated, and he testified that Appellant had warned him in jail not to testify. The defense theory was that Appellant was not present at the shooting and that the State offered more evidence that Gardner killed Sinkfield than that Appellant killed him, emphasizing that Gardner was the only person that the other witnesses saw fleeing the scene immediately after the gunshots.

Viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes for which he was convicted and sentenced. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Vega v. State, 285 Ga. 32, 33, 673 S.E.2d 223 (2009). (“ ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ ” (citation omitted)).

2. Appellant contends first that his trial counsel provided inadequate representation because counsel failed to recognize that an involuntary manslaughter conviction was authorized by the evidence, did not discuss with Appellant a possible jury instruction on involuntary manslaughter, and failed to request such an instruction.

(a) To establish that his trial counsel was constitutionally ineffective, Appellant was required to prove both deficient performance by counsel and resulting prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show that his lawyer's performance was deficient, Appellant had to demonstrate that the lawyer performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. at 687–688, 104 S.Ct. 2052. This is no easy showing. As the United States Supreme Court has explained,

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.... There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

Strickland, 466 U.S. at 689–690, 104 S.Ct. 2052 (citations omitted). Accord Humphrey v. Nance, 293 Ga. 189, 191, 744 S.E.2d 706 (2013).

To these ends, the law recognizes a “strong presumption” that counsel performed reasonably, and the defendant bears the burden of overcoming this presumption. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To carry this burden, Appellant must show that no reasonable lawyer would have done what his lawyer did, or would have failed to do what his lawyer did not. See Nance, 293 Ga. at 192, 744 S.E.2d 706. In particular, “decisions 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.” Reed v. State, 294 Ga. 877, 882, 757 S.E.2d 84 (2014).

Even when a defendant has proved that his counsel's performance was deficient in this constitutional sense, he also must prove prejudice by showing “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding.” Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011) (citation and punctuation omitted). Rather, the defendant must demonstrate a “reasonable probability” of a different result, which, the United States Supreme Court has explained, is “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

In all, the burden of proving a denial of effective assistance of counsel is a heavy one. See Richter, ––– U.S. ––––, 131 S.Ct. 770. Appellant has not met that burden.

(b) The premise of Appellant's claim is that his trial counsel should have pursued the defense theory that the jury could find Appellant guilty of involuntary manslaughter as a lesser included offense of murder. See OCGA § 16–5–3(a).² This theory would have required counsel to argue, and the jury to believe, that the shooting was not intentional (in which case it would be malice murder), although Appellant acknowledges that the shooting was at least reckless conduct precluding a complete accident defense. See OCGA § 16–2–2 (excluding an accident defense where there was criminal intention or criminal negligence); Reed v. State, 279 Ga. 81, 86, 610 S.E.2d 35 (2005). In addition, an involuntary manslaughter theory would have required counsel to argue, and the jury to believe, that Appellant's use of a loaded gun to strike at Sinkfield was reckless conduct but that Appellant did not use the gun as a “deadly weapon” (which would be the felony of aggravated assault, see OCGA § 16–5–21(a)(2))—even though, in fact, the gun fired and killed Sinkfield, the medical evidence indicated that Sinkfield's face was not bruised by a blow and that the gun was fired from a few inches away rather than on contact, Appellant had just fired one shot into the air while confronting Sinkfield, and even a gun used as a bludgeon may be deemed a deadly weapon. See Arthur v. State, 275 Ga. 790, 791, 573 S.E.2d 44 (2002).

While such a convoluted and poorly supported theory may be conceivable, trial counsel would have had to present it, without losing all credibility, against the backdrop of the core defense theory that Appellant was not even at the crime scene and that someone else was the shooter—a theory based on the claim of...