306 Ga. 127 FINAL COPY
S19A0118. BROXTON v. THE STATE. S19A0119. PENA v. THE STATE.
ELLINGTON, Justice.
Following a jury trial, appellant Joseph D. Broxton was
convicted of the malice murder of Edward Chadmon, Oliver
Campbell, and Rocqwell Nelson; the aggravated assault of Deion
Harden, Falana Coley, and Jordan Turner; criminal attempt to
commit armed robbery; and seven counts of violation of the Street
Gang Terrorism and Prevention Act (the “Street Gang Act”).
Broxton’s co-defendant, appellant Daniel Luis Pena, was convicted
of the malice murder of Chadmon and Nelson; the aggravated
assault of Coley and Turner; criminal attempt to commit armed
robbery; and five counts of violation of the Street Gang Act.1 On
1 Chadmon was killed on July 3, 2015. Campbell and Nelson were killed on July 30, 2015. On September 8, 2015, a DeKalb County grand jury charged Broxton, Pena, and seven others in a 45-count indictment. Broxton was charged in Counts 1-4, 11-20, and 22-33. Counts 1-4 were later nolle prossed. Pena was charged in Counts 11-18 and 26-33. Counts 11-18 were based on acts committed in DeKalb County on July 3, 2015. In Counts 11 and 12, Broxton and Pena were charged with criminal attempt to commit armed robbery by driving to the Stone Mountain Inn with firearms and with their co-conspirators with the intent to commit theft, and violation of the Street Gang Act for participation in criminal gang activity through commission of that crime. In Counts 13-16, Broxton and Pena were charged with the malice murder, felony murder, and aggravated assault of Chadmon, and violation of the Street Gang Act for participation in criminal gang activity through the commission of those crimes. In Counts 17 and 18, Broxton and Pena were charged with the aggravated assault of Darius Wilder and violation of the Street Gang Act for participation in criminal gang activity through the commission of that offense. Counts 19, 20 and 22-33 were based on acts committed in DeKalb County on July 30, 2015. In Counts 19 and 20, Broxton was charged with the aggravated assault of Harden and violation of the Street Gang Act for participation in criminal gang activity through commission of that offense. In Counts 22-25, Broxton was charged with the malice murder, felony murder, and aggravated assault of Campbell and violation of the Street Gang Act for participation in criminal gang activity through the commission of those crimes. In Counts 26 and 27, Broxton and Pena were charged with the aggravated assault of Coley and violation of the Street Gang Act for participation in criminal gang activity through the commission of that crime. In Counts 28-31, Broxton and Pena were charged with the malice murder, felony murder, and aggravated assault of Nelson and violation of the Street Gang Act for participation in criminal gang activity through the commission of those offenses. In Counts 32 and 33, Broxton and Pena were charged with the aggravated assault of Turner and violation of the Street Gang Act for participation in criminal gang activity through the commission of that crime. Broxton and Pena were tried before a jury on March 28-April 6, 2017. The jury found Broxton guilty of Counts 11-16, 19-20, and 22-33, and not guilty of Counts 17 and 18. The jury found Pena guilty of Counts 11-16, and 26-33, and not guilty of Counts 17 and 18. On June 22, 2017, Broxton was ordered to serve three consecutive sentences of life in prison without parole and an additional 60 years in confinement. Also on June 22, 2017, Pena was ordered to serve two consecutive sentences of life in prison without parole and an additional 40 years in confinement.
2 appeal, Broxton contends (1) his trial counsel was ineffective and (2)
the trial court erred in allowing the written statement of a co-
indictee to go back into the jury room. Pena contends (1) the trial
court erred in denying his motion for a directed verdict on Counts
27-33, and (2) his trial counsel was ineffective. We affirm for the
reasons set forth below.
1. This case concerns multiple crimes committed by Broxton,
Pena, and their co-indictees in July 2015. Viewed in a light most
favorable to the verdicts, the evidence presented at trial shows the
following. Broxton and Pena are members of a criminal street gang
known as the “Gangster Disciples,” as well as an associated criminal
street gang known as the “Hate Committee.” On or before July 30,
2015, Hate Committee members received word from their leadership
On June 23, 2017, Broxton filed a motion for a new trial, which he amended on April 9, 2018; the motion was denied on June 27, 2018. Pena filed a premature motion for new trial on April 6, 2017, which became effective upon entry of judgment, see Southall v. State, 300 Ga. 462, 465 (1) (796 SE2d 261) (2017), a second motion for new trial on July 6, 2017, and an amendment to the motion for new trial on March 20, 2018. The motion was denied on June 27, 2018. Broxton and Pena filed timely notices of appeal, and the appeals were docketed in this Court for the term beginning in December 2018, submitted for decision on the briefs, and consolidated for opinion. 3 that certain persons had been “green-lit,” which meant that they
were subject to being beaten or killed. Multiple shootings then
occurred on July 30, 2015, including the shootings that resulted in
the deaths of Campbell and Nelson. Chadmon was killed in a
separate incident on July 3, 2015.
More specifically, during the early morning of July 3, 2015,
approximately 15 armed men, including Broxton, Pena, Rodricous
Gresham, Quantavious Hurt, and Karim Ficklin, drove in several
cars to the Stone Mountain Inn in DeKalb County for the purpose of
committing robbery. Upon arriving, they saw that the police were
there, and so they left. Broxton, Pena, Gresham, and Ficklin
returned to the Stone Mountain Inn later that morning, and they
went to a room where drugs were being sold. Ficklin testified at trial
that “Fat,” identified by other testimony as Anthony Caldwell, rode
with them.
Chadmon, who was holding a gun, was one of several people in
the room. After an argument among those present, Pena and
Chadmon began to struggle for possession of Chadmon’s weapon.
4 Ficklin saw Caldwell shoot Chadmon in the leg and Pena gain
control of Chadmon’s gun, after which Ficklin ran out of the room
and heard another gunshot. Pena later told Hurt that Caldwell shot
Chadmon in the leg, after which Pena grabbed Chadmon’s gun and
used it to shoot Chadmon. The bullet entered Chadmon’s right upper
back and severed a large artery under the collar bone, causing his
death.
At approximately 2:00 a.m. on July 30, 2015, Deion Harden
was walking home through a DeKalb County apartment complex
when a white car pulled up. He was shot five times, after which the
car drove off. Harden survived. At trial, Hurt testified that he saw
Broxton shoot Harden. Harden denied knowing who shot him, and
he denied telling his stepfather who shot him. Harden’s stepfather,
however, testified that he had asked Harden who shot him, and
Harden answered that it was “Joe.” Based on phone records and his
independent investigation, a DeKalb County district attorney
investigator testified that at 1:55 a.m. on July 30, 2015, Broxton’s
5 cell phone was communicating with a cell tower 2.1 miles away from
the location where Harden was shot.
Around 6:30 a.m. on July 30, 2015, a DeKalb County police
officer responded to a call of “shots fired” at the Valero gas station
on Candler Road. The officer found Campbell in the driver’s seat of
a pickup truck, slumped over and unresponsive. Campbell’s autopsy
showed that he had been shot in his left hand, chest, and neck. At
trial, Ficklin testified that Broxton never told him that Broxton
killed anyone at the Valero, but Ficklin then acknowledged that he
previously informed the police that Broxton told him Broxton “shot
somebody at the Valero.” Hurt testified that Broxton told him that
Broxton shot Campbell. The DeKalb County district attorney
investigator testified that Broxton’s cell phone was communicating
with a cell tower located 1.1 miles from the location of the Valero
shooting at 6:27 a.m. and 6:29 a.m. on July 30, 2015.
Also on July 30, 2015, at approximately 7:00 p.m., Coley went
to visit her sister at the Windview Apartments on Central Drive in
DeKalb County. She saw a dark blue BMW pull up to four men
6 standing around a Camaro. Shortly after the BMW drove out of
Coley’s line of sight, she heard gunshots. After Coley ran inside, she
realized that she had been shot in the thigh.
At trial, the prosecutor asked Ficklin to tell the jury what
happened when Coley got shot. Ficklin said that he, Broxton, Pena,
and Hurt were driving in a dark blue BMW when they pulled past a
group of people they believed to be members of the Bloods gang.
They drove past the group to the back of the apartment complex,
turned around, jumped out of the car, and began shooting. Ficklin
testified that only he and Hurt got out of the car, but he also
acknowledged that he had said previously that it was Broxton, Pena,
and Hurt who jumped out of the car and began shooting. Hurt
testified that he, Broxton, Pena, and Ficklin had been driving in a
BMW on Central Drive “looking for trouble,” when they saw
individuals associated with the Bloods gang. According to Hurt, they
turned around, and Broxton, Pena, and Ficklin got out of the car and
shot at the suspected gang members, who “took off running.”
7 After the Coley shooting, the four men continued to drive
around looking, as acknowledged by Ficklin, for “somebody to shoot.”
They spotted Nelson and Turner standing on a porch at a DeKalb
County apartment complex. Broxton and Hurt got out of the car,
approached the two, and began firing at close range. Nelson, who
died at the scene, was shot in the face and sustained multiple
gunshot wounds to the chest, and Turner, who “balled up” on the
ground, sustained numerous gunshot wounds to her legs but
survived.
On July 31, 2015, a DeKalb County police officer received an
alert concerning a stolen blue BMW. The officer located the BMW at
an Economy Inn near I-20. Broxton later acknowledged in a police
interview that he had seen the BMW parked at the motel where he
had been staying, and he then admitted that he had driven the BMW
and that Ficklin was with him at the time. A crime scene
investigator found a “Liberty” brand 9-millimeter shell casing on the
driver’s side floor of the BMW.
8 During the course of a manhunt on the evening of July 31,
2015, Broxton was apprehended while riding as a passenger in a
friend’s car stopped at a Checkers parking lot. A Glock .40-caliber
handgun was found under the car’s front passenger’s seat. The car’s
driver testified that the Glock did not belong to him.
Broxton’s cell phone was seized during his arrest. The phone
contained a record of outgoing text messages stating “they locking
me up,” and that his “strap,” which a detective testified referred to
a gun, was under the seat. The phone also contained a record of
Internet searches for “breaking news Atlanta shooting,” “Candler
Road shooting 2015,” and “shooting at Valero gas station.” On July
31, 2015, the phone had accessed websites referencing “DeKalb
police investigate shooting on Candler Road,” and “One killed in
double shooting in DeKalb County Apartment.”
During trial, the State presented testimony of a GBI firearms
and ballistics expert. He testified that the Glock .40-caliber handgun
found when Broxton was arrested was a match for shell casings
found at the scenes of the Campbell and Coley shootings. He
9 determined that certain other cartridge casings found at the scenes
of the Harden, Coley, and Nelson and Turner shootings were fired
from the same firearm, which was a weapon consistent with a Glock
9-millimeter pistol. The witness also testified that “Liberty”
ammunition is relatively uncommon, and that “Liberty Civil
Defense” projectiles were taken from Nelson’s body. Liberty shell
casings were also located at the scenes of the Coley shooting and the
Nelson and Turner shooting.
During the trial, the State presented evidence of Broxton’s and
Pena’s association with the Gangster Disciples and the Hate
Committee. An expert on street gang identification testified that the
Gangster Disciples is “one of the most organized gangs in the
country,” and that the Hate Committee acts as enforcers for the
Gangster Disciples. The witness explained that the numbers “360”
and “720” have significance to the Gangster Disciples in that they
represent “degrees of knowledge” concerning the organization. The
six-point star also has meaning for the Gangster Disciples, the
witness testified, and may be understood as showing gang
10 membership when worn as jewelry or in the form of a tattoo.
Evidence showed that Broxton has multiple tattoos: a “720,” with a
six-point star in place of the “0,” near one ear; “Hate” by the other
ear; and several six-point stars on his left forearm. Pena has “Hate”
tattooed on his hand.
Gresham testified that he was a member of the Hate
Committee and that some Hate Committee members have the word
“Hate” tattooed on their body. Ficklin testified that he was a member
of the Gangster Disciples, and that Broxton, Pena, and Gresham
have “Hate” tattooed on their bodies, signifying their membership in
the Hate Committee. Hurt testified that he, Broxton, and Pena were
members of the Gangster Disciples and of the Hate Committee.
Ficklin testified that, concerning events on the evening of July
30, 2015, “Smurf,” identified in other testimony as Ronald Glass, a
leader of the Hate Committee and a member of the Gangster
Disciples, had told him about “folks getting the green light . . .
around Central.” According to Ficklin, persons who have gotten the
green light are subject to being beaten or killed. Hurt testified that,
11 at the time of the Harden shooting, the area where Harden was
located had been “green-lit.”2 Ficklin testified that, in reference to
the Coley and the Nelson and Turner shootings, he, Broxton, Pena,
and Hurt had been driving around looking to find persons who had
been “green-lit,” and then shoot them.
After the presentation of the State’s evidence, the trial court
informed the jury that the parties had stipulated that both
defendants were associates and/or members of the Hate Committee;
that the Hate Committee is a criminal street gang; and “that there
is a nexus between crimes committed and the furtherance of the
interests of the criminal gang.” Broxton then testified in his defense.
Pena chose not to testify.
The evidence presented at trial, as summarized above and as
further discussed in Division 4, infra, was sufficient to authorize the
jury to find Broxton and Pena guilty of the crimes for which they
2 It appeared from Hurt’s testimony that the green light in this instance
was not issued with respect to named individuals, but with respect to those persons who were both associated with certain criminal gangs and physically within the Stone Mountain area. 12 were convicted beyond a reasonable doubt. Jackson v. Virginia, 443
U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
Case No. S19A0118
2. Broxton contends that his trial counsel was ineffective in
stipulating that elements of the Street Gang Terrorism and
Prevention Act, OCGA § 16-15-1 et seq., had been met. To establish
ineffective assistance, a defendant must show both that his counsel’s
performance was professionally deficient and that, but for counsel’s
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 SCt 2052, 80
LE2d 674) (1984). If an appellant fails to carry his burden on one
prong of the two-prong test, we need not review the other prong. See
Matthews v. State, 301 Ga. 286, 288-289 (2) (800 SE2d 533) (2017).
To establish that his trial counsel’s performance was
professionally deficient, a defendant must demonstrate that his
attorney performed “in an objectively unreasonable way considering
all the circumstances and in the light of prevailing professional
13 norms.” Romer v. State, 293 Ga. 339, 344 (3) (745 SE2d 637) (2013)
(citation and punctuation omitted); see also Strickland, 466 U. S. at
687-688. This requires a defendant to “overcome the strong
presumption that counsel’s performance fell within a wide range of
reasonable professional conduct, and that counsel’s decisions were
made in the exercise of reasonable professional judgment.” Marshall
v. State, 297 Ga. 445, 448 (2) (774 SE2d 675) (2015) (citation and
punctuation omitted). “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.” Davis v. State, 299 Ga.
180, 183 (2) (787 SE2d 221) (2016) (citation and punctuation
omitted). When reviewing an ineffective assistance of counsel claim,
we accept the trial court’s factual findings and determinations of
credibility unless clearly erroneous, but independently apply legal
principles to the facts. See Perdue v. State, 298 Ga. 841, 845 (3) (785
SE2d 291) (2016).
14 With these principles in mind, we turn to Broxton’s claim of
ineffective assistance of trial counsel. After the presentation of the
State’s evidence, the trial court informed the jury:
The State and the defense have stipulated and agreed that both defendants are associates and/or members of the Hate Committee. Likewise, they also stipulate that the Hate Committee is a criminal street gang and that there is a nexus between crimes committed and the furtherance of the interests of the criminal gang.
The trial court then directed the jury that, “when determining the
guilt or innocence of each defendant as to Counts 12, 16, 18, 20, 25,
27, 31, and 33, . . . the only remaining issue is the State must prove
to you beyond a reasonable doubt whether each defendant is guilty
of the predicate acts.” The specified counts alleged violations of
OCGA § 16-15-4 of the Street Gang Act.3
As relevant here, to establish a violation of the Street Gang
Act, the State must show the existence of a criminal street gang;4
3 OCGA § 16-15-4 (a) provides: “It shall be unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of any offense enumerated in paragraph (1) of Code Section 16-15-3.” 4 See OCGA § 16-15-3 (2).
15 the accused’s employment by or association with that gang; the
accused’s commission of an act of criminal gang activity;5 and “that
the commission of the predicate act was intended to further the
interests of the gang.” Stripling v. State, 304 Ga. 131, 134 (1) (b) (816
SE2d 663) (2018) (citation and punctuation omitted). See McGruder
v. State, 303 Ga. 588, 591-592 (II) (814 SE2d 293) (2018). In other
words, “there must be some nexus between the [predicate] act and
an intent to further street gang activity.” Rodriguez v. State, 284 Ga.
803, 807 (1) (671 SE2d 497) (2009). Broxton argues that the evidence
did not show that any crime committed by Broxton at the Stone
Mountain Inn was intended to further gang interests, and so his
trial counsel was deficient in stipulating that this required element
had been met, and he was necessarily prejudiced thereby.
Broxton’s trial counsel did not testify at the motion for new
trial hearing. We presume that trial counsel’s decision to enter into
the stipulation was a matter of strategy and trial tactics;
5 “[C]riminal gang activity” includes “[a]ny criminal offense in the State
of Georgia . . . that involves violence, possession of a weapon, or use of a weapon.” OCGA § 16-15-3 (1) (J). 16 consequently, the question of whether counsel was professionally
deficient turns upon whether Broxton has shown that no competent
attorney would have entered into the stipulation. See Brown v.
State, 288 Ga. 902, 909 (5) (708 SE2d 294) (2011).
Broxton readily acknowledged during his direct testimony that
he was a member of both the Hate Committee and Gangster
Disciples. However, Broxton explained, he made his money by
selling drugs and by credit card fraud. Broxton also testified that,
after exiting a nightclub in the early morning of May 25, 2015, he
was shot four times. According to Broxton, he was released from the
hospital in late June or early July 2015, and he was required to carry
a colostomy bag due to having been shot in the lower stomach. He
then proceeded, in his direct testimony, to deny his participation in
the crimes for which he had been indicted, all of which occurred
within a month of his release from the hospital after suffering
serious injury.
As to the events at the Stone Mountain Inn, Broxton testified
that the first trip to the inn was for the purpose of obtaining drugs
17 for a third party, and that he had no knowledge of a planned robbery.
Broxton came back to the inn, he testified, after calling an
acquaintance there and confirming that the acquaintance had some
“weed.” Broxton maintained that, when he got to the room at the
inn, he went outside to the patio with a woman, and that he did not
see the shooting.
Broxton’s testimony, as guided by his trial counsel on direct,
showed that his theory of defense was that, although he was a gang
member, he did not commit any of the charged crimes, including
those predicate to the Street Gang Act charges. Consistent with this
defense, the stipulation made it clear that the State was required to
prove that Broxton was guilty of the predicate acts beyond a
reasonable doubt.
By the time the stipulation was read to the jury, the State had
presented overwhelming evidence that Broxton was a member of the
Hate Committee. The State had also come forward with evidence
that the Hate Committee was a criminal street gang and that the
commission of the predicate acts was intended to further the
18 interests of the Hate Committee. As to those interests, the evidence
showed that the Hate Committee acted as enforcers for the Gangster
Disciples. As explained by expert testimony, the Hate Committee’s
role was to take care of issues for the Gangster Disciples, whether
those issues arose from an outside gang or within the Gangster
Disciples. Testimony showed that Chadmon was killed following an
argument sparked when the Hate Committee members, after
arriving at the room at the Stone Mountain Inn where Chadmon was
located, accused those present of not being authentic members of the
Gangster Disciples. The evidence also implicated the Hate
Committee’s leadership in directing or authorizing the multiple
shootings that occurred on July 30, 2015.
Notwithstanding the stipulation to certain elements of the
Street Gang Act charges, Broxton’s testimony, if believed by the
jury, provided a defense to those charges because he denied
committing the predicate acts. A competent attorney could conclude
that Broxton’s honesty in acknowledging through his testimony and
the stipulation that he was a gang member would bolster his
19 credibility. A competent attorney could also conclude that asking the
jury to parse through the Hate Committee’s interest in crimes
Broxton testified he did not commit would not improve, and might
impair, the likelihood of his acquittal, and that the stipulation would
relieve the jury from possible confusion in concentrating on issues
that were not relevant to Broxton’s theory of defense.
Broxton’s stipulation was therefore “a valid trial strategy[,]
and reasonable trial strategy does not constitute deficient
performance.” Pruitt v. State, 282 Ga. 30, 35 (4) (e) (644 SE2d 837)
(2007) (citations omitted). See United States v. Monghan, 409 Fed.
Appx. 872, 878 (III) (B) (6th Cir. 2001) (factual stipulations to
elements of a crime are often the product of a sound trial strategy,
and defendant had nothing to gain by challenging obvious issues and
“perhaps had much to lose by adding unnecessary complexity and
time to the trial”); Barlow v. United States, 2014 U. S. Dist. LEXIS
48483 (III) (B) (E.D. N.Y. Apr. 8, 2014) (strategy of counsel in
stipulating to an element of the charged crime and focusing the
defense on attacking the evidence supporting another element was
20 sound and objectively reasonable). Accordingly, Broxton has not
shown that his trial counsel was deficient as alleged.
3. Broxton claims that the trial court erred in allowing Ficklin’s
written statement to the police to go back into the jury room in
violation of the continuing witness rule. See, e.g., Rainwater v. State,
300 Ga. 800, 803 (2) (797 SE2d 889) (2017) (“[I]t is unfair and places
undue emphasis on written testimony for the writing to go out with
the jury to be read again during deliberations, while oral testimony
is received but once.”) (citation and punctuation omitted). The record
shows that, during the course of their deliberations, the jury sent a
note to the trial court asking for, among other things, a copy of
Ficklin’s written statement. After discussion among defendants’
counsel and the trial court, and with the express agreement of
Broxton’s counsel, the prosecutor read the statement to the jury in
open court. Broxton does not show by reference to the record that
Ficklin’s written statement was, at any time, sent to the jury room,
and he does not complain about the reading of the statement to the
21 jury in the courtroom. It follows that there is no merit to the error
asserted.
Case No. S19A0119
4. Pena contends that the evidence was not sufficient to
support his convictions for the crimes arising out of the shooting of
Nelson and Turner, and that the trial court therefore erred in
denying his motion for directed verdict of acquittal for the malice
murder of Nelson (Count 28), the aggravated assault of Turner
(Count 32), and the two counts of violation of the Street Gang Act
predicated on those offenses (Counts 31 and 33).6 “The standard of
review for the denial of a motion for a directed verdict of acquittal is
the same as for determining the sufficiency of the evidence to
support a conviction.” Smith v. State, 304 Ga. 752, 754 (822 SE2d
6 At the conclusion of the State’s case-in-chief, Pena’s counsel moved for
a directed verdict of acquittal on Counts 27-33. Pena does not argue that the trial court erred in denying the motion for acquittal as to Count 27, which charged violation of the Street Gang Act arising out of the Coley shooting. Pena was not sentenced for Count 29, felony murder of Nelson, nor Count 30, aggravated assault of Nelson, and, to the extent he argues that the evidence was insufficient as to those counts, the claims are moot. See, e.g., Mills v. State, 287 Ga. 828, 830 (2) (700 SE2d 544) (2010) (where felony murder conviction was vacated by operation of law, claim of insufficient evidence to support that conviction was moot). 22 220) (2018) (citation and punctuation omitted). See Jackson, 443 U.
S. at 319 (III) (B).
The evidence does not show that Pena drove the BMW, that he
shot either Nelson or Turner, or that he exited the car when it
stopped at the scene. However, “[e]very person concerned in the
commission of a crime is a party thereto and may be . . . convicted of
commission of the crime.” OCGA § 16-2-20 (a). As applicable here,
and as the jury was instructed in substance, a person is a party to
the crime if that person “[d]irectly commits the crime; . . .
[i]ntentionally aids or abets in the commission of the crime; or . . .
[i]ntentionally advises, encourages, hires, counsels, or procures
another to commit the crime.” OCGA § 16-2-20 (b).
Mere presence at the scene of the crime is not sufficient
evidence to convict a defendant of being a party thereto; however,
the jury may infer a common criminal intent from the defendant’s
presence, companionship, and conduct with the other perpetrators
before, during and after the offense. See Butts v. State, 297 Ga. 766,
770 (2) (778 SE2d 205) (2015); Navarrete v. State, 283 Ga. 156, 158
23 (1) (656 SE2d 814) (2008). Here, evidence showed that on the
evening of July 30, 2015, Pena, Broxton, Ficklin, and Hurt were
seeking to shoot persons who had been “green-lit” by the Gangster
Disciples. Hurt testified that, during the incident that led to Coley’s
injury, Pena was one of the gunmen who fired at suspected members
of another gang. Pena remained in the company of his fellow gang
members when, shortly thereafter, their car stopped at the scene of
the Nelson and Turner shooting, after which the four of them left
together.
Given the evidence that the four companions were acting
together to seek out and shoot persons who had been “green-lit,”
Pena’s participation in the Coley incident, his presence at the scene
of the Nelson and Turner shooting, and his flight from that scene,
the jury could conclude that Pena shared in the criminal intent of
the actual shooters. See Eckman v. State, 274 Ga. 63, 65 (1) (548
SE2d 310) (2001) (evidence showing that appellant shared in the
criminal intent included that she was willingly present at the scene
when the victims were killed and had been involved in her
24 companions’ commission of crimes in the previous 24 hours); Garcia
v. State, 290 Ga. App. 164, 165 (2) (658 SE2d 904) (2008) (where
appellant and other gang members went to a rival gang member’s
apartment with the intent of starting a fight, appellant was present
when his fellow gang member shot into the apartment, injuring
three of the rival gang member’s relatives, and appellant fled the
scene afterward, the evidence was sufficient to show that appellant
was a party to the crimes of aggravated assault arising from that
incident). The evidence was sufficient to authorize Pena’s conviction
as a party to the malice murder of Nelson and the aggravated
assault of Turner, as well as the counts of violation of the Street
Gang Act predicated on those crimes, and consequently the trial
court did not err in denying Pena’s motion for a directed verdict of
acquittal. See, e.g., Mangum v. State, 274 Ga. 573, 574 (1) (555 SE2d
451) (2001) (as evidence was sufficient for the jury to find appellant
guilty beyond a reasonable doubt of the crimes for which he was
convicted, it followed that the trial court did not err in denying his
motion for a directed verdict of acquittal).
25 5. Lastly, we address Pena’s claim that he received ineffective
assistance of trial counsel in that his counsel (a) failed to file a pre-
trial motion for immunity based on a claim of self-defense and (b)
failed to move to sever his trial from that of Broxton.
(a) Pena contends that his trial counsel was ineffective in
failing to file a pre-trial motion seeking immunity from prosecution
based on self-defense. See OCGA § 16-3-24.2.7 At the hearing on his
motion for a new trial, Pena’s trial counsel testified that, during
their pre-trial discussions, Pena maintained that he had acted in
self-defense during the shooting at the Stone Mountain Inn. Trial
counsel acknowledged that he did not file a pre-trial immunity
motion on Pena’s behalf. Pena’s new counsel did not ask trial counsel
why he did not file the motion.
7 OCGA § 16-3-24.2 provides:
A person who uses threats or force in accordance with Code Section 16-3-21, 16-3-23, 16-3-23.1, or 16-3-24 shall be immune from criminal prosecution therefor unless in the use of deadly force, such person utilizes a weapon the carrying or possession of which is unlawful by such person under Part 2 of Article 4 of Chapter 11 of this title. 26 “[C]ounsel’s actions are presumed strategic.” Holmes v. State,
273 Ga. 644, 648 (5) (c) (543 SE2d 688) (2001) (citation and
punctuation omitted). It may be reasonable for trial counsel to forgo
a pre-trial immunity motion so as to avoid subjecting his client to
pre-trial cross-examination, or for counsel to elect to demonstrate
self-defense to the jury, rather than to the judge. See Dent v. State,
303 Ga. 110, 119 (4) (d) (810 SE2d 527) (2018). As trial counsel’s
decision to forgo a pre-trial immunity motion is presumed strategic,
and Pena has not established that no competent attorney would
have failed to file the motion under the circumstances of this case,
he has not shown that his counsel’s performance was professionally
deficient.
(b) Pena also contends that his trial counsel was ineffective in
that he failed to file a motion to sever his trial from that of Broxton.
Trial counsel testified at the motion for new trial hearing that he did
not file a motion to sever because he had assessed that there was no
legal basis for doing so.
27 Pena argues that his trial counsel’s failure to move to sever was
unreasonable because the motion, if filed, would have been granted
under the standard set forth in Satterfield v. State, 256 Ga. 593, 596-
597 (3) (351 SE2d 625) (1987), and because he was strongly
prejudiced by the failure to sever. As this Court said in Satterfield:
The question of severance of the trial of defendants for a capital felony where the death penalty has been waived is within the discretion of the trial court. Factors which should be considered in exercising that discretion are (1) whether the number of defendants will create confusion; (2) whether there is danger that evidence against one defendant will be considered against another by the jury despite instructions from the court; [and] (3) whether the defenses of one defendant are antagonistic to defenses of another.
Id. at 596 (3) (citation omitted). Pena does not argue that the first
two factors weighed in favor of severance, but asserts that Broxton’s
“other narrative” led to an unfair trial. Although Broxton chose to
testify, he maintained that he was standing outside the room when
Chadmon was shot at the Stone Mountain Inn, and that he was not
present during the Coley shooting or the Nelson and Turner
shooting. Broxton’s defenses were not antagonistic to the defenses
identified by Pena, particularly self-defense in the case of his actions 28 at the Stone Mountain Inn and the State’s alleged failure to show
that he was a party to the shooting of Nelson and Turner. See Styles
v. State, 279 Ga. 134, 135-136 (2) (610 SE2d 23) (2005) (the two co-
defendants’ defenses were not antagonistic when they both denied
involvement in the crimes); Hayes v. State, 261 Ga. 439, 442 (3) (405
SE2d 660) (1991) (the two co-defendants’ theories of defense were
different, with one claiming that he was attempting to lawfully
arrest the victim and the other contending that he did not shoot at
the victim, but those defenses were not antagonistic), disapproved
on other grounds, Willis v. State, 304 Ga. 686, 706 (11) (a) n.3 (820
SE2d 640) (2018).
Furthermore, to require severance, the moving defendant must
“do more than raise the possibility that a separate trial would give
him a better chance of acquittal. He must make a clear showing that
a joint trial would lead to prejudice and a consequent denial of due
process.” Lupoe v. State, 300 Ga. 233, 242 (2) (c) (794 SE2d 67) (2016)
(citation and punctuation omitted). To the extent that Pena
contends he was prejudiced by having to sit next to Broxton, who
29 was an admitted drug dealer and gun owner, during the trial and by
having his right to remain silent diminished by Broxton’s decision
to testify, this is no more than speculation. “[I]f trial counsel had
filed a motion to sever, the trial court would not have abused its
discretion in denying it.” Id. Pena does not show that his counsel was
professionally deficient in failing to move to sever Pena’s trial from
that of Broxton.
Judgments affirmed. All the Justices concur.
30 Decided June 10, 2019.
Murder. DeKalb Superior Court. Before Judge Coursey.
The Moore Brown Law Group, Angela Z. Brown, for appellant
(case no. S19A0118).
Manning Peace, Holly Y. Peace, for appellant (case no.
S19A0119).
Sherry Boston, District Attorney, Lenny I. Krick, Assistant
District Attorney; Christopher M. Carr, Attorney General, Patricia
B. Attaway Burton, Deputy Attorney General, Paula K. Smith,
Senior Assistant Attorney General, Matthew B. Crowder, Assistant
Attorney General, for appellee.