Williams v. State

• Decision Date: 27 February 2012
• Docket Number: No. S11A1431.,S11A1431.
• Citation: 722 S.E.2d 847,290 Ga. 533,12 FCDR 367
• Parties: WILLIAMS v. The STATE.
• Court: Georgia Supreme Court

12 FCDR 367

290 Ga. 533

722 S.E.2d 847

WILLIAMS

v.The STATE.

No. S11A1431.

Supreme Court of Georgia.

Feb. 6, 2012.Reconsideration Denied Feb. 27, 2012.

Steven L. Sparger, Savannah, for appellant.

Larry Chisolm, Dist. Atty., Melanie Higgins, Asst. Dist. Atty., Samuel S. Olens, Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Sara K. Sahni, Asst. Atty. Gen., for appellee.

Perry & Walters, George P. Donaldson III, Albany, James C. Bonner, Jr., Athens, J. Scott Key, McDonough, Marcia G. Shein, Decatur, amici curiae.NAHMIAS, Justice.

Appellant Jarnard Williams and co-defendant James Mitchell were indicted for the felony murder of Wymberly Baker, the aggravated assault of Donald Robinson, and two counts of possession of a firearm during the commission of a felony. Appellant was separately indicted for theft by receiving a Toyota Highlander. After a joint jury trial, Appellant and Mitchell were found guilty on all counts. We now affirm Appellant's convictions.¹

1. Viewed in the light most favorable to the verdict, the evidence presented at trial showed the following. At about 5:00 p.m. on October 25, 2007, Baker, Robinson, Isaac Fitzgerald, and Tereen Graham were talking in front of Baker's house in Savannah, Georgia, when a stolen black Toyota Highlander with three or four people in it pulled up. Two men got out and said they were there to rob the victims, who began running. The two men then began shooting. Baker was fatally shot in the chest, and Robinson was shot in the arm. After Mitchell went through Baker's pockets, the two shooters jumped back in the SUV and fled the scene.

Shortly after the shootings, the police found the Highlander abandoned, with the doors open and the engine running. The two guns used in the shooting, a Tech–9 and a 9mm pistol, were later found near where the SUV was parked. An officer driving near the location of the SUV saw Appellant, who fit the description of one of the suspects and appeared out of breath, walking down the street. Appellant was detained, and a detective told the officer to interview him and then release him, which the officer did.

Venus McKinney, who has a child with Appellant, voluntarily went to the police station on the day of the crimes. She told a detective that the night before, Appellant and Chevis Borrum had come to her house in a black SUV; they drove around for a while; Appellant parked the vehicle on the street; he spent the night with her; and he had a 9mm gun. McKinney told the detective that Appellant left the house in the morning but came back and knocked on her window and asked her to hand him his gun, which she did. McKinney also said that the police had allowed Appellant to call her when he was detained and she had falsely told the officer that Appellant was with her at the time of the crimes. The detective testified that between the time of her statement and the trial, McKinney never told him that her story was untrue. At trial, however, McKinney recanted her statement, claiming that she gave the police false information because she became upset with Appellant after seeing him earlier on the day of the crimes with one of his old girlfriends.

Jamel Williams testified that he knows both Mitchell and Appellant because he sold them marijuana. On the day of the crimes, Mitchell, Appellant, and another man came to his house in a black SUV, and Jamel got in to make the transaction. Although Jamel testified at trial that he did not know if there were any weapons in the car and did not know the other man's name, the detective testified that, in a pre-trial statement, Jamel said that Mitchell had a Tech–9 and Appellant had a 9mm handgun at the time of the drug sale and that Chevis Borrum and Eric Brown were also in the SUV.

Borrum testified that Appellant was his “partner” and they had known each other about eight years. On the day of the crimes, Borrum said, he was walking with Appellant when they were stopped and questioned by a police officer. However, he claimed not to recognize the black Highlander and denied being in it that day, saying that he was out walking when he ran into Appellant on the street in the neighborhood where the SUV was found and they both live.

At trial, Fitzgerald identified Mitchell as one of the two shooters, but said that he could not identify the other assailant because the man was wearing a bucket hat and “kinda covering his face” with his shirt. On October 26 and December 20, 2007, the detective had shown Fitzgerald six-person photo lineups that included Appellant's photograph. In the October 26 lineup, Fitzgerald circled Appellant's photo but said he was not positive about the identification and wrote “a little bit” under the photo. The detective testified that Fitzgerald appeared scared and hesitant at that time. In the December 20 lineup, which used a clean copy of the same lineup card, Fitzgerald identified Appellant as one of the shooters without qualification. Fitzgerald also testified that he had been reluctant to tell the police who the shooters were because he was “real scared about what happened.” He added that two or three months after the crimes, he saw Appellant at a bar, and Appellant had come over and stood behind him until he and his friends moved.

Although Green and Robinson identified Mitchell as one of the shooters, neither could identify the second shooter. Robinson did testify, however, that Mitchell had a Tech–9 and the other shooter used a 9mm gun.

The evidence in this case required the jury to determine the credibility of numerous witnesses and to resolve numerous conflicts and inconsistencies. These are decisions we rely on the jury to make. See Vega v. State, 285 Ga. 32, 33, 673 S.E.2d 223 (2009). We also note that the trial court, which sits as the “thirteenth juror” with respect to motions for new trial based on the weight of the evidence, found the evidence sufficient to support the convictions. When viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above, while not overwhelming, was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant contends that trial counsel was constitutionally ineffective for several reasons. To prevail on these claims, Appellant

must show that his trial counsel provided deficient performance and that, but for that unprofessional performance, there is a reasonable probability that the outcome of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In examining an ineffectiveness claim, a court need not “address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”

Watkins v. State, 289 Ga. 359, 362, 711 S.E.2d 655 (2011) (citation omitted).

(a) Appellant claims that Fitzgerald's December 20, 2007, out-of-court identification of Appellant was impermissibly suggestive and that trial counsel was therefore ineffective in failing to move to exclude it. “ ‘When trial counsel's failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.’ ” Biggs v. State, 281 Ga. 627, 631–632, 642 S.E.2d 74 (2007) (citation omitted). Appellant failed to make such a showing.

“An unduly suggestive procedure is one which leads the witness to the virtually inevitable identification of the defendant as the perpetrator, and is equivalent to the authorities telling the witness, ‘This is our suspect.’ ” Where the identification procedure is not unduly suggestive, it is not necessary to consider whether there was a substantial likelihood of irreparable misidentification.

Williams v. State, 286 Ga. 884, 888, 692 S.E.2d 374 (2010) (citations omitted).

Applying this standard, we conclude that the photo lineup shown to Fitzgerald on December 20—which was the exact same lineup shown to him on October 26, without the markings he made on the first copy—was not unduly suggestive. Appellant does not contend that the composition of the photo lineup was suggestive, and the record confirms that the lineup featured six African–American males of similar appearance. Instead, Appellant argues that because Fitzgerald wrote “a little bit” under Appellant's photo on the October 26 array, showing him the same photo array on December 20 was like the police saying, “This is our suspect.” However, Fitzgerald was not told that he had identified the suspect after the tentative first identification, and he was not shown the lineup again for almost two months. See United States v. Carter, 410 F.3d 942, 949 (7th Cir.2005) (explaining that where a “substantial passage of time” like three months passed between two photo lineups, “it is unlikely that (the eyewitness) was influenced by the earlier photograph, let alone that it led to misidentification”). Moreover, the second photo lineup was identical to the first, meaning that none of the six men in the second lineup was emphasized more than another. Thus, while Fitzgerald testified that he recognized the two lineup cards as identical, he would have had no reason to believe that the photo under which he wrote “a little bit” on the first array was the “suspect,” as he arguably might have if Appellant's photo were the only one in both lineups or if the police had shown him the lineup with his notation again. See United States v. Daily, 488 F.3d 796, 804 (8th Cir.2007) (holding that a second photo lineup was not impermissibly suggestive, in large part because the arrays were the same, “not two...