Blount v. State

303 Ga. 608

• Court: Supreme Court of Georgia
• Decided: May 7, 2018
• Docket: S18A0201
• Status: Published

Opinion

303 Ga. 608 FINAL COPY

S18A0201. BLOUNT v. THE STATE.

HUNSTEIN, Justice.

Corey Antwan Blount was convicted of murder and related offenses

arising out of the shooting death of Derrick Lee Merritt, Jr., and the wounding

of Jamaris Antrellis Walter.1 On appeal, Appellant contends that the evidence

1 In December 2014, a Clarke County grand jury returned an eleven-count indictment charging Appellant as follows: Count 1 — malice murder; Count 2 — felony murder predicated on aggravated assault (deadly weapon); Count 3 — felony murder predicated on aggravated assault (discharging firearm from within a motor vehicle); Count 4 — felony murder predicated on possession of a firearm by a convicted felon; Count 5 — aggravated assault with a deadly weapon (Merritt); Count 6 — aggravated assault by discharging a firearm from within a motor vehicle (Merritt); Count 7 — possession of a firearm by a convicted felon; Count 8 — possession of a firearm during the commission of a crime (Merritt); Count 9 — aggravated assault with a deadly weapon (Walter); Count 10 — aggravated assault by discharging a firearm from within a motor vehicle (Walter); Count 11 — possession of a firearm during the commission of a crime (Walter). Following a trial in October 2015, a jury found Appellant guilty on all counts. The trial court sentenced Appellant to life imprisonment on Count 1, five years’ imprisonment on Count 8, and twenty years’ imprisonment on Count 9, each of which were to be served consecutively; Appellant was also sentenced to five years’ imprisonment on Counts 7 and 11, again consecutive to his other sentences, but those sentences were probated. All other counts were vacated by operation of law or merged for the purpose of sentencing. In total, Appellant was sentenced to life was insufficient to support the convictions and that his trial counsel rendered

constitutionally ineffective assistance. Finding no error, we affirm.

1. Viewing the evidence in a light most favorable to the verdicts, the

evidence adduced at trial established as follows. On the evening of May 9,

2014, Kisha Pope, Shamilya McClain, Appellant, and his girlfriend, Kiona

Detweiler, were exiting Bootleggers, a nightclub in Athens-Clarke County,

when a melee erupted in the parking lot. Pope and Detweiler were part of the

fray but were eventually pulled from the ruckus and deposited in the back seat

of a two-door green Ford Mustang; McClain and Appellant were observed

getting into the driver’s seat and passenger seat, respectively, before the vehicle

drove off. Numerous witnesses testified that, as the green Ford sped away, shots

were fired from the passenger-side window into the lingering crowd. The

gunfire killed Merritt and severely injured Walter, both of whom were

bystanders. When investigators interviewed Appellant, he admitted firing from

imprisonment plus 35 years. Appellant timely filed a motion for new trial on November 17, 2015, which was amended in June 2017. In July 2017, following a hearing, the trial court entered an order denying Appellant’s motion for new trial as amended. Appellant filed a notice of appeal in August 2017; this case was docketed to the term of Court beginning in December 2017 and was thereafter submitted for a decision on the briefs. 2 the fleeing vehicle into the crowd, but he claimed that he did so in response to

earlier gunfire and thrown bottles. The jury heard testimony, however, that an

extensive “grid” search of the parking lot failed to reveal broken bottles or

evidence of shots fired from other weapons.

Appellant argues that there was insufficient evidence of malice or intent.

“When evaluating the sufficiency of evidence, the proper standard for review

is whether a rational trier of fact could have found the defendant guilty beyond

a reasonable doubt.” Morris v. State, 301 Ga. 702, 704 (804 SE2d 42) (2017)

(citing Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979)).

“‘This Court does not reweigh evidence or resolve conflicts in testimony;

instead, evidence is reviewed in a light most favorable to the verdict, with

deference to the jury’s assessment of the weight and credibility of the

evidence.’” (Citation omitted.) Hayes v. State, 292 Ga. 506, 506 (739 SE2d

313) (2013).

“‘In Georgia, the crime of malice murder is committed when the evidence

shows either an express or, in the alternative, an implied intent to commit an

unlawful homicide.’” (Citation and punctuation omitted.) Kitchen v. State, 287

Ga. 833, 834 (700 SE2d 563) (2010). “Express malice is that deliberate

3 intention unlawfully to take the life of another human being which is manifested

by external circumstances capable of proof[,]” and malice may be implied

“where no considerable provocation appears and where all the circumstances of

the killing show an abandoned and malignant heart.” OCGA § 16-5-1 (b). “It

is for a jury to determine from all the facts and circumstances whether a killing

is intentional and malicious.” White v. State, 287 Ga. 713, 715 (1) (b) (699

SE2d 291) (2010). Here, the jury heard testimony that, after his girlfriend had

been involved in a large-scale physical altercation in the club’s parking lot,

Appellant — who was a convicted felon — fired a weapon into the lingering

crowd as he was leaving, killing Merritt. As discussed above, the State also

adduced testimony that nothing found at the scene suggested that Appellant had

been provoked or attacked with guns or bottles.

Accordingly, the evidence as summarized above was sufficient to

authorize a rational trier of fact to conclude beyond a reasonable doubt that

Appellant was guilty of the crimes of which he was convicted, see Jackson v.

Virginia, supra, and this argument is without merit.

2. Appellant also argues, as he did below, that trial counsel was

ineffective in a number of ways. To establish ineffective assistance of counsel,

4 a defendant must show that his trial counsel’s performance was professionally

deficient and that, but for such deficient performance, there is a reasonable

probability that the result of the trial would have been different. Strickland v.

Washington, 466 U. S. 668 (III) (104 SCt 2052, 80 LE2d 674) (1984); Wesley

v. State, 286 Ga. 355 (3) (689 SE2d 280) (2010). To prove deficient

performance, one must show that his attorney “performed at trial in an

objectively unreasonable way considering all the circumstances and in the light

of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344 (745 SE2d

637) (2013).

[T]o show that he was prejudiced by the performance of his lawyer,

[Appellant] must prove “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.”

Arnold v. State, 292 Ga. 268, 269 (737 SE2d 98) (2013) (quoting Strickland,

466 U. S. at 694 (III) (B)). “If an appellant fails to meet his or her burden of

proving either prong of the Strickland test, the reviewing court does not have to

examine the other prong.” Rector v. State, 285 Ga. 714, 716 (681 SE2d 157)

5 (2009).

(a) Appellant contends that trial counsel was ineffective for failing to

exhaust his peremptory strikes and remove jurors who, he says, expressed

potential bias. Specifically, Appellant argues that trial counsel should have

struck Juror 6, who had worked with the victim’s father; Juror 9, who had met

the lead detective and thought he was a “nice guy”; and Juror 31, who had

known and gone to church with Merritt when Merritt was a child.2 Even if we

were to presume that trial counsel’s failure to strike Jurors 6, 9, and 31

amounted to deficient performance — which we do not decide — Appellant has

failed to demonstrate prejudice. Notably, Juror 6 was eventually removed from

the jury for cause and, thus, played no role in the jury’s verdicts; Jurors 9 and

2 Appellant also complains that trial counsel failed to properly question Juror 14 after he revealed, in the middle of trial, that he had once worked with one of the State’s witnesses, Kisha Pope. Juror 14 explained that, 20 years prior, he had managed a restaurant and Pope had been a hostess; he also explained that he had not recognized Pope’s name because of the passage of time, that he had not spoken to or seen Pope in years, and that his familiarity with Pope would not affect his consideration of her testimony. Appellant has failed to identify what follow-up questions trial counsel should have asked or what information he might have gleaned from further questions. Moreover, though not acknowledged by Appellant, trial counsel actually moved the trial court to remove Juror 14 because of his familiarity with Pope, but the motion was denied. Accordingly, Appellant has failed to demonstrate that trial counsel was ineffective in this regard. 6 31, both of whom were seated on the jury, each affirmed his or her ability to act

as a fair and impartial juror. Appellant has not suggested that Jurors 9 and 31

were not qualified to serve, that the jurors harbored any prejudice toward him,

or that Jurors 9 and 31 were unwilling to acquit Appellant for reasons unrelated

to the arguments and evidence presented at trial. See Simpson v. State, 298 Ga.

314, 319 (781 SE2d 762) (2016). Accordingly, Appellant is not entitled to relief.

(b) Count 7 charged Appellant with possession of a firearm by a

convicted felon, and the language of that count reflects that Appellant was

previously convicted of “Entering Auto” and “Possession of a Firearm by a

Convicted Felon.” At trial, Appellant stipulated his status as a convicted felon

to avoid having the details of the offenses being presented to the jury.

According to Appellant, this effort was thwarted when the trial court read the

language of the indictment to the jury at the close of trial and then provided the

indictment to the jury during deliberations. Appellant asserts that trial counsel

should have objected in both instances and was ineffective for failing to do so.

Pretermitting whether trial counsel performed deficiently in this regard,

Appellant has failed to demonstrate prejudice. At most, the language of the

indictment informed the jury of the statutory titles of the prior felonies; the jury

7 was not advised of the relevant facts underlying those convictions, and neither

of the two convictions was the type of prior offense that would be likely to

inflame the passions of the jury and raise a significant risk of conviction based

on improper considerations. See Wallace v. State, 294 Ga. 257 (3) (b) (754

SE2d 5) (2013). Accordingly, Appellant is not entitled to relief.

(c) Appellant claims that trial counsel was ineffective for failing to object

to testimony concerning Appellant’s statement to investigators and for failing

to inquire as to the voluntariness of that statement. This enumeration of error,

however, includes no meaningful argument and no citation to authority

whatsoever; accordingly, this argument is deemed abandoned under Supreme

Court Rule 22. See Moss v. State, 298 Ga. 613 (5) (e) (783 SE2d 652) (2016).

Even if we consider the merits of the argument, Appellant’s claim is without

merit. As trial counsel testified in the motion for new trial hearing, Appellant

waived his Miranda3 rights prior to making his statement, and there was little

indication that the statement was involuntary. Likewise, counsel explained that

there was strategic value in having the statement presented at trial; the jury

3 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). 8 learned that Appellant claimed he was acting in self-defense and that the weapon

he claimed to have used, a .38 caliber firearm, did not match the murder weapon.

Accordingly, Appellant has failed to demonstrate either deficient performance

or prejudice, and this argument fails.

(d) Appellant testified at the motion for new trial hearing that trial counsel

advised him not to testify because he had two prior felony convictions; on

appeal, Appellant contends that this advice was unreasonable because the jury

was already aware of those convictions and because a pre-trial order would have

prohibited the State from delving into the details of those offenses. This

argument fails, however, because the trial court specifically discounted

Appellant’s testimony as “less than consistent” regarding “whether counsel

discussed the right to testify and how to make that decision.” Instead, the trial

court determined, and the hearing transcript supports, that trial counsel’s advice

on Appellant taking the stand was premised on sound strategic considerations,

such as how a skilled cross-examination of Appellant could have proved

harmful to Appellant’s defense. Further, the record reflects that the trial court

engaged in a colloquy with Appellant concerning his right to testify, wherein

Appellant was fully apprised of his rights and informed that the decision to

9 testify was his alone to make. Accordingly, Appellant has failed to demonstrate

either deficient performance or prejudice and, thus, is not entitled to relief. See

Domingues v. State, 277 Ga. 373 (2) (589 SE2d 102) (2003).

(e) Appellant contends that the State, during its closing argument,

presented the jury with erroneous legal standards concerning implied malice and

that, because trial counsel failed to object, the jury was allowed to find

Appellant guilty of malice murder based on a diminished level of intent.

However, the record reflects that trial counsel did, in fact, object to the State’s

argument; as a consequence, the jury was informed that any instruction on the

relevant law would come from the trial court and that closing arguments were

merely an opportunity for the attorneys to argue how, in their opinion, the law

should be applied to the facts. Following closing argument, the trial court

adequately and properly instructed the jury on malice, both express and implied,

as well as the State’s burden of proof.

[Q]ualified jurors under oath are presumed to follow the

instructions of the trial court, Holmes v. State, 273 Ga. 644 (5) (c)

(543 SE2d 688) (2001), and [Appellant] has not shown that the

jurors were so confused or misled by the State’s argument that they

10 ignored the trial court’s proper instructions setting forth the law.

Allen v. State, 277 Ga. 502, 503 (591 SE2d 784) (2004). Accordingly,

Appellant has demonstrated neither deficient performance nor prejudice, and he

is not entitled to relief on this claim.

(f) Appellant next asserts that trial counsel rendered constitutionally

ineffective assistance by failing to move for a directed verdict as to Count 1,

malice murder. However, this enumeration of error fails to include either

citation to authority or meaningful legal argument; as such, this enumeration of

error is deemed abandoned under Supreme Court Rule 22. See Moss, supra.

Even so, this claim is meritless; because “the evidence was sufficient to sustain

[Appellant’s] conviction for malice murder, any motion for directed verdict

would have failed, and trial counsel’s failure to make such a motion thus did not

constitute deficient performance.” Jessie v. State, 294 Ga. 375, 378 (754 SE2d

46) (2014).

(g) Finally, Appellant asserts that he would have pled guilty to

manslaughter and that trial counsel was ineffective for failing to engage the

State in plea negotiations. Pretermitting whether trial counsel has a duty to

initiate plea negotiations, see State v. Kelley, 298 Ga. 527, 529 (783 SE2d 124)

11 (2016) (recognizing that, in Georgia, “[t]he authority and discretion to plea

bargain rest with the State”), Appellant has again wholly failed to demonstrate

prejudice. There is no indication that the State would have agreed to a plea deal

or that any such agreement would have been more favorable than the result at

trial. See Shnewer v. United States, 703 Fed. Appx. 85, 88 (3rd Cir. 2017)

(“Thus, to show prejudice, [Appellant] would need to demonstrate that it was

reasonably probable that [the Government] would have offered him a particular

plea deal, that the deal would have resulted in a sentence less than life in prison,

and that the court would have accepted the deal’s terms. Failure to show any one

of those three facts is fatal to [Appellant’s] claim.”). Accordingly, Appellant is

not entitled to relief.

Judgment affirmed. All the Justices concur.

12 Decided May 7, 2018.

Murder. Clarke Superior Court. Before Judge Sweat.

William A. McQueen, for appellant.

Kenneth W. Mauldin, District Attorney, Brian V. Patterson, Jon R.

Forwood, Assistant District Attorneys; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior

Assistant Attorney General, Ashleigh D. Headrick, Assistant Attorney General,

for appellee.