Feder v. State

901 S.E.2d 561, 319 Ga. 66

• Court: Supreme Court of Georgia
• Decided: May 14, 2024
• Docket: S24A0528
• Status: Published

Opinion

319 Ga. 66 FINAL COPY

S24A0528. FEDER v. THE STATE.

BETHEL, Justice.

Visheslav Feder was convicted of felony murder and other

crimes in connection with the shooting death of Avery Birthrong.1

On appeal, Feder contends that his acquittal for the aggravated

assault of Laurence Parks means that he should not have been

convicted for the felony murder and aggravated assault of Birthrong

1 The crimes occurred on July 17, 2018. On October 24, 2018, a Gwinnett

County grand jury indicted Feder for felony murder predicated on the aggravated assault of Avery Birthrong (Count 1); aggravated assault of Birthrong (Count 2); aggravated assault of Laurence Parks (Count 3); aggravated assault of John Durden (Count 4); and possession of a firearm during the commission of a felony (Count 5). Following a trial held from January 31 to February 7, 2022, the jury found Feder not guilty of the aggravated assault of Parks (Count 3), but guilty of felony murder (Count 1) and the remaining counts (Counts 2, 4-5). The trial court sentenced Feder to serve life in prison without the possibility of parole on Count 1, twenty years in prison on Count 4 to be served consecutively to Count 1, and five years in prison on Count 5 to be served consecutively to Count 1; Count 2 merged into Count 1. Feder filed a timely motion for new trial, which was later amended through new counsel. Following a hearing on June 28, 2023, the trial court denied the amended motion on November 7, 2023. Feder then filed a timely notice of appeal, and his case was docketed to the April 2024 term of this Court and submitted for a decision on the briefs. or the aggravated assault of John Durden because the verdicts are

repugnant. Feder also argues that his trial counsel rendered

ineffective assistance by failing to file a motion to suppress evidence

recovered during a search of Feder’s cell phone. However, the

verdicts were not illogical and were, at most, inconsistent rather

than repugnant, which is not a basis for reversal. And the ineffective

assistance claim fails because Feder has failed to establish that his

trial counsel’s decision not to file a motion to suppress was deficient.

Accordingly, we affirm.

1. The evidence presented at trial showed the following. In

June 2018, Avery Birthrong borrowed between 60 and 70 dollars

from Feder to bail her boyfriend, Laurence Parks, out of jail.

Birthrong offered to repay Feder in small increments, but he

refused, stating that he wanted the money back all at once. When

Birthrong and Parks were unable to repay the entire amount, Feder

began threatening them and making threats about them to others.

Feder told Erica Lenity, a mutual friend, that he “would kill [Parks

and Birthrong].” Lenity testified that Parks “swore on his kid’s life

2 that he would pay [Feder] back,” and that Feder told Lenity, “I can’t

find his kid but I can find him.” Feder also tried to have Lenity “set

up” Parks and Birthrong by inviting them to her house where Feder

would then confront them, but Lenity refused and instead warned

Birthrong and Parks. Additionally, Feder sent Margaret Caldwell,

his girlfriend at the time, e-mails while she was incarcerated,

stating, “[W]e need to talk about your friends. They are going to

make me introduce them to another me they don’t know about.” In

a recorded phone call between Caldwell and Feder, Feder said, “I’m

going to f**king beat the s**t out of [Parks], and I’m more than likely

going to stab . . . [Birthrong].” Feder continued sending threatening

text messages to Birthrong and Parks, and Parks used Birthrong’s

phone to respond.

Meanwhile, Feder learned from Jeanara Bandy that Birthrong

had contacted her friend, John Durden, to obtain

methamphetamine, and that Durden was with Parks and Birthrong.

Feder remarked that he had just bonded Parks out of jail and that

Parks was trying to buy drugs instead of paying him back the money

3 he owed. Feder and Bandy then began driving toward Durden’s

home. Feder texted Parks, “Just don’t run brah okay,” and, “[H]ere

I come.”

Meanwhile, Parks and Birthrong picked up Durden from his

home. About one mile from Durden’s home, when they were stopped

at a red light at an intersection, Durden and Parks heard “peeling

tires,” and Parks saw Feder’s truck run a red light and make a “crazy

u-turn” in their direction. Inside his truck, Feder exclaimed to

Bandy, “that’s the mother f**ker right there” before turning around

to follow the vehicle containing Birthrong, Parks, and Durden.

When Feder’s truck pulled alongside the vehicle, Parks saw Feder

pointing a gun at him. Parks responded by drawing Birthrong’s gun

from beneath the seat and pointing it at Feder. Feder and Parks

exchanged words, and then Parks fired one shot at Feder and

immediately turned right because he “wasn’t going to wait to see if

[Feder] was going to shoot [him] or not[.]” Parks did not hear any

return fire until “maybe like five, ten seconds” after making the right

turn. On cross-examination, Parks emphasized that Feder “didn’t

4 shoot before [Parks] turned” and that he did not hear shots fired by

Feder until after he “had already made the right.” Although Durden

saw only the initial gunshot at the intersection because he ducked

down in his seat, he heard the shooter say, “I got you now,” and then

heard three to five additional gunshots. Shortly after fleeing the

intersection,2 Durden noticed that Birthrong had been shot. Feder

subsequently texted Parks, “Found your b***h a**.” Parks

responded, “You killed [A]very.” Birthrong died as a result of a

gunshot wound to the left side of her head, which a crime scene

specialist determined to have been fired from outside the vehicle.

After the shooting, Feder drove away from the scene and threw

his firearm out of the vehicle’s window. Bandy testified that, after

this and, “not long after the incident,” Feder got into a different

vehicle.

After learning from Parks and Durden that Feder had been

involved in the shooting, the police obtained Birthrong’s cell phone

2 The events at the intersection were captured on surveillance footage

from a nearby convenience store, which was shown to the jury; the footage showed Feder’s vehicle pull alongside Parks’s vehicle before Parks sped off. 5 because Parks told them that he used it to communicate with Feder.

Investigators also obtained Birthrong’s phone records and were able

to review text messages between Birthrong’s phone and Feder’s

phone.

Feder was arrested in Arkansas, and two cell phones were

seized from his vehicle. The text messages sent from Feder’s phone

to Birthrong’s phone were introduced at trial. Feder argued at trial

that he was justified in shooting at the vehicle because he only did

so after he was fired upon first.

2. In his first enumeration of error, Feder argues that he is

entitled to a new trial because the jury’s verdicts were repugnant.

As noted in footnote 1, supra, Feder was charged with three counts

of aggravated assault based on firing his weapon at Birthrong

(Count 2), Parks (Count 3), and Durden (Count 4), who were all

passengers in the same vehicle at the time Feder fired at the vehicle.

The jury found Feder not guilty of the aggravated assault of Parks,

but guilty of the aggravated assaults of Birthrong and Durden. On

appeal, Feder contends that because the jury found him not guilty

6 of the aggravated assault of Parks (Count 3), the jury must have

found that he did not fire his weapon at the vehicle in which all three

victims were passengers.3 He argues that because the jury made this

finding, the jury could not logically or legally find him guilty of the

felony murder of Birthrong (Count 1) or the aggravated assault of

Durden (Count 4) because those counts were premised on Feder’s

firing his weapon at the vehicle in the same transaction. We

disagree.

“Repugnant verdicts occur when, in order to find the defendant

not guilty on one count and guilty on another, the jury must make

affirmative findings shown on the record that cannot logically or

legally exist at the same time.” State v. Owens, 312 Ga. 212, 216 (1)

(b) (862 SE2d 125) (2021) (cleaned up; emphasis in original). When

verdicts are repugnant, they must be vacated.4 See id. By contrast,

3 In his brief, Feder incorrectly identifies Count 3 as charging the aggravated assault of Durden. Our review of the record shows that Count 3 charged Feder with the aggravated assault of Parks, not Durden. 4 We question the continuing validity of our repugnant verdict case law

in the wake of the United States Supreme Court’s decision in McElrath v. Georgia, 601 U. S. 87, 95-96 (144 SCt 651, 217 LE2d 419) (2024). However, we

7 “inconsistent verdicts occur when a jury in a criminal case renders

seemingly incompatible verdicts of guilty on one charge and not

guilty on another.” McElrath v. State, 308 Ga. 104, 108 (2) (a) (839

SE2d 573) (2020) (emphasis in original). “[W]e have abolished the

rule that inconsistent verdicts require reversal.” Id. “Inconsistent

verdicts are permitted to stand because the jury’s rationale is not

apparent from the record and courts generally are not permitted to

make inquiries into the jury’s deliberation process.” Owens, 312 Ga.

at 216-217 (1) (b).

Here, the verdicts are at most inconsistent, as the record does

not reflect any affirmative finding by the jury that Feder did not fire

his weapon at the vehicle containing Durden, Parks, and Birthrong.

Compare Guajardo v. State, 290 Ga. 172, 174 (2) (718 SE2d 292)

(2011) (repugnant verdicts require reversal “in the rare instance

where, instead of being left to speculate as to the jury’s

deliberations, the appellate record makes transparent the jury’s

need not decide that issue here, as these verdicts are not repugnant and the parties did not raise the ongoing validity of our repugnant verdict case law. See Ward v. State, 318 Ga. 884, 896 (2) n.12 (___ SE2d ___) (2024). 8 rationale”). In the absence of such an affirmative finding,

determining the precise basis for the jury’s not guilty verdict on

Count 3 “would be based either on pure speculation, or would require

inquiries into the jury’s deliberations that the courts generally will

not undertake.” Carter v. State, 298 Ga. 867, 868-869 (785 SE2d 274)

(2016) (citation and punctuation omitted). We “cannot know and

should not speculate why a jury acquitted on one offense and

convicted on another offense. The reason could be an error by the

jury in its consideration or it could be mistake, compromise, or

lenity.” Turner v. State, 283 Ga. 17, 20 (2) (655 SE2d 589) (2008)

(citation and punctuation omitted). Accordingly, Feder’s claim fails.

3. Feder next argues that trial counsel provided ineffective

assistance by failing to file a motion to suppress evidence recovered

during a search of the cell phones found in his vehicle. More

specifically, Feder argues that trial counsel should have moved to

suppress his cell phone records because his phone was seized

without a warrant, without his consent, and without exigent

circumstances. He also asserts that the later-obtained search

9 warrant was overbroad and not particularized to the items to be

seized from the phones. Feder argues that, had trial counsel filed

the motion, “damaging evidence” would have been suppressed,

though Feder does not specify what that evidence was.

To prevail on his claim of ineffective assistance, Feder

has the burden of proving both that the performance of his lawyer was professionally deficient and that he was prejudiced as a result. To prove deficient performance, [an appellant] must show that his trial counsel acted or failed to act in an objectively unreasonable way, considering all of the circumstances and in light of prevailing professional norms. To prove resulting prejudice, [an appellant] must show a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different. In examining an ineffectiveness claim, a court need not address both components of the inquiry if the defendant makes an insufficient showing on one.

Floyd v. State, 307 Ga. 789, 799 (4) (837 SE2d 790) (2020) (citation

and punctuation omitted). “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

10 motion.” Santana v. State, 308 Ga. 706, 712 (3) (a) (842 SE2d 14)

(2020).

In evaluating whether trial counsel’s performance was

deficient, “our inquiry is focused on the objective reasonableness of

counsel’s performance, not counsel’s subjective state of mind.” Davis

v. State, 306 Ga. 140, 143 (3) (829 SE2d 321) (2019) (citation and

punctuation omitted). When evaluating counsel’s reasonableness,

we consider “the attendant circumstances of the challenged conduct”

and judge “from counsel’s perspective at the time with every effort

made to eliminate the distorting effects of hindsight.” Id. at 144 (3)

(citation and punctuation omitted).

The law recognizes a strong presumption that counsel performed reasonably, and the defendant bears the burden of overcoming this presumption. To carry this burden, [an 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.

Evans v. State, 315 Ga. 607, 611 (2) (b) (884 SE2d 334) (2023)

(citations and punctuation omitted).

Based on the record before us, Feder has failed to prove that

11 trial counsel’s performance was deficient. The record makes clear

that trial counsel made the strategic decision not to move to

suppress the cell phone records. Though Feder does not detail what

“damaging” evidence in these records should have been suppressed,

trial counsel testified at the hearing on the motion for new trial that,

“to the extent there was anything harmful on the phones,” that same

evidence was also recovered from Birthrong’s phone, so filing a

motion to suppress “wouldn’t have made any difference.” In fact,

investigators were able to obtain Birthrong’s phone records through

a separate search warrant and review the text exchanges between

Feder, Birthrong, and Parks, even before they applied for a search

warrant for Feder’s phone. Although these records were not

admitted into evidence at trial, they showed the same text

exchanges, which an investigator testified was “verbatim,” between

the parties as that which was admitted into evidence from Feder’s

phone records. Accordingly, even if Feder had succeeded on a motion

to suppress his cell phone records, the State easily could have

remedied the problem by moving to admit into evidence Birthrong’s

12 cell phone records. Therefore, it was reasonable for trial counsel not

to raise a motion to suppress. See Washington v. State, 313 Ga. 771,

774 (3) (b) (873 SE2d 132) (2022) (appellant failed to show that

counsel performed deficiently by failing to object to evidence on

foundation grounds where appellant failed to argue, much less

demonstrate, that the State could not have provided additional

foundational support for the admission of the evidence if his counsel

had objected). Moreover, Feder has not established that he would

have had standing to challenge the admissibility of the identical

records from Birthrong’s phone, nor does he make any other

argument as to why those records would not have been admissible.

See Davis v. State, 301 Ga. 397, 406 (6) (c) (801 SE2d 897) (2017)

(holding that defendant lacked standing to challenge admission of

cell phone records obtained from service provider where the

defendant “provided no evidence that he had any legal link to the

account, much less any ownership interest in it; nor has he shown

that he was an authorized user on the account, or the de facto

exclusive, primary, or customary user of the cell number of issue”

13 (citation and punctuation omitted)); Hampton v. State, 295 Ga. 665,

669-670 (2) (763 SE2d 467) (2014) (same). See also Rakas v. Illinois,

439 U. S. 128, 130-131 (I) n.1 (99 SCt 421, 58 LE2d 387) (1978) (“The

proponent of a motion to suppress has the burden of establishing

that his own Fourth Amendment rights were violated by the

challenged search or seizure.”). And Feder does not specify what

other “damaging evidence,” if any, was collected from the search of

his phone and admitted against him at trial.

Feder’s trial counsel also conceded that some of the text

messages were, instead, advantageous to Feder’s self-defense claim

because they showed Parks’s “challenging statements” to Feder and

“history of hostility” toward Feder. Feder’s counsel argued at trial

that Feder was acting in self-defense after Parks shot at him and

that Parks had “talked trash back and forth” and had “bad

intentions.” It was not objectively unreasonable for counsel to

highlight the ways in which the text messages supported Feder’s

justification defense, rather than move to suppress them.

Because the decision not to seek a motion to suppress was not

14 objectively unreasonable under the circumstances, it cannot form

the basis of a claim of ineffective assistance of counsel. See Thomas

v. State, 311 Ga. 280, 286 (2) (857 SE2d 223) (2021) (identifying no

deficient performance where counsel chose to withdraw a motion to

suppress and to “vigorously pursue a self-defense theory at trial and

to characterize any evidence at her disposal in any way that could

advance that theory”); Reyes v. State, 309 Ga. 660, 671 (3) (a) (847

SE2d 194) (2020) (identifying no deficient performance where

counsel could reasonably determine that the best defense strategy

was to forgo a motion to suppress DNA evidence and offer a plausible

explanation for its presence at the crime scene). Thus, Feder’s final

claim fails.

Judgment affirmed. All the Justices concur.

15 Decided May 14, 2024.

Murder. Gwinnett Superior Court. Before Judge Beyers.

Clark & Towne, David E. Clark, for appellant.

Patsy Austin-Gatson, District Attorney, Clifford L. Kurlander,

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

Beth A. Burton, Deputy Attorney General, Clint C. Malcolm, Meghan

H. Hill, Senior Assistant Attorneys General, Elizabeth Rosenwasser,

Assistant Attorney General, for appellee.