Woods v. State

• Decision Date: 26 November 2002
• Docket Number: No. S02A0498.,S02A0498.
• Parties: WOODS v. The STATE.
• Court: Georgia Supreme Court

573 S.E.2d 394

275 Ga. 844

WOODS v. The STATE.

No. S02A0498.

Supreme Court of Georgia.

November 26, 2002.

Reconsideration Denied December 13, 2002.

Patrick D. Deering, Atlanta, for appellant.

Paul L. Howard, Jr., Dist. Atty., Bettieanne C. Hart, Elizabeth A. Baker, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Tammie J. Philbrick, Asst. Atty. Gen., for appellee. HUNSTEIN, Justice.

Willie Earl Woods, Jr. was convicted of murder in the 1997 shooting death of Brian Keith Palmer. He appeals from the denial of his motion for new trial.¹ Because appellant received effective assistance of counsel and his remaining enumerations present no grounds for reversal, we affirm.

1. The evidence authorized the jury to find that appellant intended to kill Palmer because Palmer "snitched" to police in Toledo, Ohio about an armed robbery appellant and he had committed there in May 1997. Both men came to Atlanta in June 1997 and the victim contacted appellant. The two men met and the victim agreed to join appellant and co-defendant Antonio Brown in committing an armed robbery. Damon Dawson, an Atlanta acquaintance of Brown, guided them to the apartment complex where the robbery was supposed to occur. As appellant and the victim were walking ahead of Dawson and Brown, appellant suddenly shot the victim in the head, then shot him again in the back when he was on the ground. The victim was fatally wounded by the multiple gunshots. The three men then ran away and Brown later buried the murder weapon behind the house where Dawson was living. The following day appellant and Brown attended a Father's Day barbeque picnic with Dawson, his family and friends. The two men then left town and went to Florida. Ten days after the shooting Dawson voluntarily contacted the police.

Appellant and Brown testified at trial that they had visited Atlanta briefly before the murder but had traveled on to Florida by June 4. They testified they did not return to Georgia until extradited in connection with this case.

The weight and credibility to be given the testimony of witnesses is in the exclusive province of the jury. Parks v. State, 275 Ga. 591, 592(1), 571 S.E.2d 389 (2002). The jury was authorized to disbelieve the alibi testimony of appellant and Brown and credit the testimony of the State witnesses. See Givens v. State, 273 Ga. 818(1), 546 S.E.2d 509 (2001). After reviewing the evidence in the light most favorable to the jury's determination of guilt, we conclude that a rational trier of fact could have found appellant guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. In his first enumeration regarding ineffective assistance of counsel, appellant contends trial counsel's representation of both appellant and Brown created an actual conflict of interest that adversely affected his lawyer's performance in his representation of appellant. See Ellis v. State, 272 Ga. 763, 766, 534 S.E.2d 414 (2000). Assuming, arguendo, that the written waiver of conflict appellant executed was legally insufficient, we find no merit in appellant's contention that he has shown he was adversely affected by the conflict created by trial counsel's joint representation here.

A defendant who does not object to joint representation to the trial court must show not only a conflict of interest, but that the conflict adversely affected his attorney's performance. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Ellis, supra. Thus, a defendant is required to show "an actual lapse in representation." Cuyler, supra, 446 U.S. at 349, 100 S.Ct. 1708. "The premise of a defendant's claim that he was denied conflict-free assistance because of joint representation must be that his lawyer would have done something differently if there was no conflict." Cates v. Superintendent, Indiana Youth Center, 981 F.2d 949, 955 (7th Cir.1992). Where the record establishes that counsel's conflict did not damage his client but actually helped him, that client cannot show that his lawyer's performance was adversely affected by the conflict. Yeck v. Goodwin, 985 F.2d 538, 541 (11th Cir.1993). See also Meyers v. State, 265 Ga. 149(2), 454 S.E.2d 490 (1995). Accord United States v. Hall, 200 F.3d 962, 966 (6th Cir.2000) (in appeal by brothers Rex and Stanley Hall from drug convictions, court affirmed Rex's conviction but reversed as to Stanley where record showed counsel had "concentrated only on Rex Hall" to the prejudice of Stanley Hall).

An examination of the bases asserted by appellant to demonstrate the adverse effect of the conflict reveals that any division of loyalty between appellant and Brown caused by the conflict of interest served only to benefit appellant and at worse adversely affected Brown alone.² Appellant points to trial counsel's insistence that no plea agreement be negotiated unless both defendants received the same deal, namely, a guilty plea in exchange for the jail time the men had already served. In light of the State's evidence that appellant was significantly more culpable than Brown, trial counsel's position on this issue solely benefitted appellant. See id. Likewise, the record reflects that trial counsel repeatedly sacrificed Brown's potential defenses, such as mere presence at the scene of the crime, in order to avoid undermining appellant's only defense, i.e., that he and Brown were in Florida at the time of the murder.³ Contrary to appellant's argument, trial counsel's testimony at the motion for new trial does not support appellant's contention. Although counsel acknowledged he did not seek limiting instructions on appellant's behalf regarding testimony by Damon Dawson and Geraldine Harris addressing Brown's behavior and statements,⁴ appellant cannot show that but for the conflict his lawyer would have "done something differently," Cates v. Superintendent, Indiana Youth, supra, given that cross-examination of these witnesses could only have expounded on evidence that directly contradicted appellant's alibi defense.

Our review of the record reveals that trial counsel's decisions throughout the proceedings were consistent with a defense strategy that served only to support and reinforce appellant's alibi defense, to the detriment of Brown and to the benefit of appellant. Accordingly, because appellant cannot show that counsel's representation of appellant was adversely affected by the conflict, his claim of ineffective assistance of counsel is without merit.

3. Appellant asserts trial counsel was ineffective because (a) he inadequately prepared and presented the alibi defense; (b) failed to seek a continuance to obtain the testimony of a defense witness; (c) failed to object to improper closing argument; (d) failed to introduce exculpatory evidence; and he failed to object properly to inadmissible hearsay evidence. See Division 4, infra. In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel's performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable probability, i.e., a probability sufficient to undermine confidence in the outcome, that but for counsel's unprofessional errors the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. Francis, 253 Ga. 782, 783, 325 S.E.2d 362 (1985). "The criminal defendant must overcome the strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct. [Cit.]" Chapman v. State, 273 Ga. 348, 350(2), 541 S.E.2d 634 (2001).

(a) The record reveals that in preparing and presenting appellant's alibi defense, counsel met repeatedly with appellant, reviewed with appellant the contradictory police statements made by State witnesses, and prepared appellant for testifying at trial. The transcript reflects that counsel conducted substantial cross examination of State witnesses whose testimony contradicted the alibi defense. Counsel testified that he was aware of only one alibi witness, appellant's girlfriend Lakeiva Zimmerman; that he tried to contact another witness, a young woman, whose name he was given but despite three calls to her number he was unable to reach her and the phone was later disconnected. Counsel detailed his contacts with Zimmerman⁵ and explained that although she had agreed voluntarily to testify, he had subpoenaed her for trial but she did not appear. Counsel did not seek to compel her presence because appellant told him he had heard that Zimmerman had been arrested for shoplifting and was in jail somewhere in Ohio on a parole or probation violation. Because counsel did not know where she was, he considered further effort "futile." See Morris v. State, 257 Ga.App. 169, 172(2), 570 S.E.2d 619 (2002) (trial counsel cannot be held ineffective for failing to track down witness whose whereabouts is unknown).

Zimmerman did not testify at the hearing on the motion for new trial; neither did the other alibi witness, Tom Woods, whose name counsel's records reveal he had been given. Appellant thus did not show that the testimony of these witnesses would have been relevant and favorable. Smith v. State, 273 Ga. 356(3), 541 S.E.2d 362 (2001). Although appellant did adduce the testimony of one alibi witness⁶ who stated she would have been available to testify at appellant's trial, the trial court was authorized to credit counsel's testimony regarding the alibi witnesses whose names he was given. See Palmer v. State, 274 Ga. 796, 798, 560 S.E.2d 11 (2002) (counsel not ineffective where counsel not informed of potential alibi witness). Applying the Strickland standard, we conclude that trial counsel's performance was not constitutionally flawed.

(b) Trial counsel explained that he did not seek a motion for continuance in order to obtain the...