306 Ga. 567 FINAL COPY
S19A0715. FOREMAN v. THE STATE.
BLACKWELL, Justice.
Jamal Nevin Foreman was tried by a Floyd County jury and
convicted of murder and other crimes in connection with the fatal
shooting of Wreno Dantoine Fain. Foreman appeals, contending that
the evidence is legally insufficient to sustain his convictions, that he
was denied due process when the State suppressed exculpatory
evidence, and that he was denied the effective assistance of counsel
when his lawyer failed to adequately investigate and present
evidence to support an alternative theory of the crime. Finding no
reversible error, we affirm.1
1 Fain was killed on July 20, 2014. In October 2014, a Floyd County
grand jury indicted Foreman, charging him with murder with malice aforethought, murder in the commission of a felony (aggravated assault and aggravated battery), aggravated assault, aggravated battery, reckless conduct, unlawfully discharging a firearm near a public highway, unlawfully discharging a firearm on the property of another, and possession of a firearm during the commission of a felony. Foreman was tried in February 2017, and the jury found him guilty on all counts. The trial court sentenced Foreman to imprisonment for life without the possibility of parole for malice murder, 1. Viewed in the light most favorable to the verdict, the
evidence presented at trial shows that Fain and Christopher
Robinson were friends. A little after midnight on July 20, 2014,
Robinson drove Fain to a nightclub in Rome known as the “Lexus
Lounge.” Robinson parked his Jeep in a parking lot adjacent to the
club, and Fain entered the club while Robinson waited in his vehicle.
A few minutes later, Robinson heard three gunshots, and soon
thereafter, Fain appeared on the passenger side of the Jeep. Fain
opened the door, said he had been shot, and asked Robinson to take
him to a hospital. As Robinson tried to help Fain into the vehicle, he
saw Foreman approaching with a gun in his hand. Foreman aimed
the gun at Robinson and pulled the trigger, but the gun either
misfired or jammed. Foreman then ducked in front of the Jeep, came
around the side, and fired several shots at Fain, who dropped to the
concurrent terms of imprisonment for 12 months for reckless conduct and the two unlawful discharge crimes, and a consecutive term of imprisonment for five years for the firearm possession offense. The other counts merged or were vacated by operation of law. Foreman timely filed a motion for new trial, which he amended in August 2018. After a hearing, the trial court denied the motion for new trial in November 2018. Foreman timely filed a notice of appeal, and his case was docketed for the April 2019 term of this Court and submitted for a decision on the briefs. 2 ground and soon became unresponsive. Robinson did not see who
fired the three shots that he overheard before Fain returned to the
Jeep, but he identified Foreman at trial as the person who shot at
Fain as he was trying to enter the vehicle. Another witness also saw
Foreman shoot Fain as he tried to climb into the Jeep. Fain died as
a result of the gunshot wounds that he sustained.
Foreman’s girlfriend was present at the scene of the shooting.
At the time, she had a friendly but not romantic relationship with
Fain, who had fathered two of her children. She initially told
investigators that she too saw Foreman chasing Fain with a gun,
and she added that she saw “two dudes” running at the time of the
shooting, one toward the club and another toward the Jeep. At trial,
however, she denied seeing Foreman with a gun. Nevertheless, she
testified that Foreman was at the club at the time of the shooting,
and she said that, after she spoke with Fain, Foreman asked her if
Fain had gotten “smart” with her. Soon after this exchange, she
testified, she saw Fain walking toward a car, and Foreman “had
went the other way,” when she heard two rounds of gunshots and
3 then saw Fain on the ground, bleeding. She added that Foreman and
Fain had argued two or three weeks before the shooting.
When law enforcement officers responded to the scene of the
shooting, they spoke with bystanders about persons of interest, and
only Foreman’s name came up. Investigators found his residence
and knocked on the door. A woman answered and directed the
officers to Foreman, who was sleeping in a common area on a
makeshift bed. Another man, Travis Matthews, was also inside the
residence, and because he “looked a lot like” Foreman, investigators
detained him briefly to verify his identity. According to Foreman’s
girlfriend, Matthews was not at the club on the night of the shooting.
After Foreman was arrested, officers seized several items from
the area in which he had been sleeping, including his driver’s license
and a pair of shoes that appeared to have blood on them. DNA
obtained from the blood on the shoes matched that of Fain.
Investigators interviewed Foreman after giving him Miranda2
2 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
4 warnings. He initially denied being involved in the shooting, but he
later admitted that he shot Fain (though Foreman’s explanation of
his motive is unclear). Foreman told the investigators that he threw
the gun away after the shooting, though he was not sure exactly
where. A recording of this interview was played for the jury at trial.
Foreman also agreed to take investigators to the area where he
disposed of the gun, and he rode with several officers to that location.
Although the gun was never found, one of the officers who was in
the police car with Foreman testified that, without being prompted,
Foreman said something like, “I didn’t mean to do what I did or hurt
him as bad as I did.”
Foreman argues that the evidence is legally insufficient to
sustain his convictions because there was no showing of “malice
aforethought” — the intent to kill — and the prosecution presented
inconsistent evidence and witnesses who were not credible. His
argument, however, ignores the overwhelming evidence of his guilt,
including his own confession and the testimony by two eyewitnesses
identifying him as the person who shot Fain. To the extent that some
5 of the evidence was inconsistent and the credibility of some
witnesses was in doubt, “it is the role of the jury to resolve conflicts
in the evidence and to determine the credibility of witnesses, and
the resolution of such conflicts adversely to the defendant does not
render the evidence insufficient.” Graham v. State, 301 Ga. 675, 677
(1) (804 SE2d 113) (2017) (citation and punctuation omitted). And
the evidence permitted the jury to infer that Foreman shot Fain with
malice aforethought. See Jackson v. State, 267 Ga. 130, 130 (1) (475
SE2d 637) (1996). We conclude that the evidence presented at trial
was more than sufficient to authorize the jury to find beyond a
reasonable doubt that Foreman was guilty of the crimes of which he
was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B)
(99 SCt 2781, 61 LE2d 560) (1979).
2. Foreman contends that he was denied due process because
the prosecution suppressed exculpatory evidence in violation of
Brady v.
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306 Ga. 567 FINAL COPY
S19A0715. FOREMAN v. THE STATE.
BLACKWELL, Justice.
Jamal Nevin Foreman was tried by a Floyd County jury and
convicted of murder and other crimes in connection with the fatal
shooting of Wreno Dantoine Fain. Foreman appeals, contending that
the evidence is legally insufficient to sustain his convictions, that he
was denied due process when the State suppressed exculpatory
evidence, and that he was denied the effective assistance of counsel
when his lawyer failed to adequately investigate and present
evidence to support an alternative theory of the crime. Finding no
reversible error, we affirm.1
1 Fain was killed on July 20, 2014. In October 2014, a Floyd County
grand jury indicted Foreman, charging him with murder with malice aforethought, murder in the commission of a felony (aggravated assault and aggravated battery), aggravated assault, aggravated battery, reckless conduct, unlawfully discharging a firearm near a public highway, unlawfully discharging a firearm on the property of another, and possession of a firearm during the commission of a felony. Foreman was tried in February 2017, and the jury found him guilty on all counts. The trial court sentenced Foreman to imprisonment for life without the possibility of parole for malice murder, 1. Viewed in the light most favorable to the verdict, the
evidence presented at trial shows that Fain and Christopher
Robinson were friends. A little after midnight on July 20, 2014,
Robinson drove Fain to a nightclub in Rome known as the “Lexus
Lounge.” Robinson parked his Jeep in a parking lot adjacent to the
club, and Fain entered the club while Robinson waited in his vehicle.
A few minutes later, Robinson heard three gunshots, and soon
thereafter, Fain appeared on the passenger side of the Jeep. Fain
opened the door, said he had been shot, and asked Robinson to take
him to a hospital. As Robinson tried to help Fain into the vehicle, he
saw Foreman approaching with a gun in his hand. Foreman aimed
the gun at Robinson and pulled the trigger, but the gun either
misfired or jammed. Foreman then ducked in front of the Jeep, came
around the side, and fired several shots at Fain, who dropped to the
concurrent terms of imprisonment for 12 months for reckless conduct and the two unlawful discharge crimes, and a consecutive term of imprisonment for five years for the firearm possession offense. The other counts merged or were vacated by operation of law. Foreman timely filed a motion for new trial, which he amended in August 2018. After a hearing, the trial court denied the motion for new trial in November 2018. Foreman timely filed a notice of appeal, and his case was docketed for the April 2019 term of this Court and submitted for a decision on the briefs. 2 ground and soon became unresponsive. Robinson did not see who
fired the three shots that he overheard before Fain returned to the
Jeep, but he identified Foreman at trial as the person who shot at
Fain as he was trying to enter the vehicle. Another witness also saw
Foreman shoot Fain as he tried to climb into the Jeep. Fain died as
a result of the gunshot wounds that he sustained.
Foreman’s girlfriend was present at the scene of the shooting.
At the time, she had a friendly but not romantic relationship with
Fain, who had fathered two of her children. She initially told
investigators that she too saw Foreman chasing Fain with a gun,
and she added that she saw “two dudes” running at the time of the
shooting, one toward the club and another toward the Jeep. At trial,
however, she denied seeing Foreman with a gun. Nevertheless, she
testified that Foreman was at the club at the time of the shooting,
and she said that, after she spoke with Fain, Foreman asked her if
Fain had gotten “smart” with her. Soon after this exchange, she
testified, she saw Fain walking toward a car, and Foreman “had
went the other way,” when she heard two rounds of gunshots and
3 then saw Fain on the ground, bleeding. She added that Foreman and
Fain had argued two or three weeks before the shooting.
When law enforcement officers responded to the scene of the
shooting, they spoke with bystanders about persons of interest, and
only Foreman’s name came up. Investigators found his residence
and knocked on the door. A woman answered and directed the
officers to Foreman, who was sleeping in a common area on a
makeshift bed. Another man, Travis Matthews, was also inside the
residence, and because he “looked a lot like” Foreman, investigators
detained him briefly to verify his identity. According to Foreman’s
girlfriend, Matthews was not at the club on the night of the shooting.
After Foreman was arrested, officers seized several items from
the area in which he had been sleeping, including his driver’s license
and a pair of shoes that appeared to have blood on them. DNA
obtained from the blood on the shoes matched that of Fain.
Investigators interviewed Foreman after giving him Miranda2
2 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
4 warnings. He initially denied being involved in the shooting, but he
later admitted that he shot Fain (though Foreman’s explanation of
his motive is unclear). Foreman told the investigators that he threw
the gun away after the shooting, though he was not sure exactly
where. A recording of this interview was played for the jury at trial.
Foreman also agreed to take investigators to the area where he
disposed of the gun, and he rode with several officers to that location.
Although the gun was never found, one of the officers who was in
the police car with Foreman testified that, without being prompted,
Foreman said something like, “I didn’t mean to do what I did or hurt
him as bad as I did.”
Foreman argues that the evidence is legally insufficient to
sustain his convictions because there was no showing of “malice
aforethought” — the intent to kill — and the prosecution presented
inconsistent evidence and witnesses who were not credible. His
argument, however, ignores the overwhelming evidence of his guilt,
including his own confession and the testimony by two eyewitnesses
identifying him as the person who shot Fain. To the extent that some
5 of the evidence was inconsistent and the credibility of some
witnesses was in doubt, “it is the role of the jury to resolve conflicts
in the evidence and to determine the credibility of witnesses, and
the resolution of such conflicts adversely to the defendant does not
render the evidence insufficient.” Graham v. State, 301 Ga. 675, 677
(1) (804 SE2d 113) (2017) (citation and punctuation omitted). And
the evidence permitted the jury to infer that Foreman shot Fain with
malice aforethought. See Jackson v. State, 267 Ga. 130, 130 (1) (475
SE2d 637) (1996). We conclude that the evidence presented at trial
was more than sufficient to authorize the jury to find beyond a
reasonable doubt that Foreman was guilty of the crimes of which he
was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B)
(99 SCt 2781, 61 LE2d 560) (1979).
2. Foreman contends that he was denied due process because
the prosecution suppressed exculpatory evidence in violation of
Brady v. Maryland, 373 U. S. 83, 87 (83 SCt 1194, 10 LE2d 215)
(1963). This contention is without merit. One item of evidence about
which Foreman complains — a statement that Robinson made to
6 investigators — was not suppressed; it was disclosed to the defense
before trial, and in fact, Foreman’s lawyer cross-examined Robinson
about it. See Young v. State, 290 Ga. 441, 443 (2) (721 SE2d 839)
(2012) (Brady claim requires proof that “the prosecution wilfully or
inadvertently suppressed evidence favorable to the accused”). And
Foreman has failed to show that the other evidence about which he
complains — a statement by another person who did not testify at
trial, a photograph of Matthews, photographs of blood spatter in the
Jeep, and evidence of a shell casing at the scene — was favorable to
the defense or material. See id. (Brady claim requires proof that
suppressed evidence was not only favorable to the accused, but also
that it was “material,” meaning that “there is a reasonable
probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.”). See also Upton
v. Parks, 284 Ga. 254, 256 (1) (664 SE2d 196) (2008) (defendant fails
to prove Brady claim where exculpatory value of suppressed
evidence is “purely speculative”); Morris v. State, 284 Ga. 1, 3 (2)
(662 SE2d 110) (2008) (no Brady violation where suppressed
7 evidence was “consistent with the evidence that the State had
already presented to the jury”).
3. Lastly, Foreman contends that he was denied the effective
assistance of counsel when his lawyer failed to adequately
investigate and present evidence that Matthews was involved in the
shooting. To obtain relief on a claim of ineffective assistance of
counsel, a defendant generally must show both that his lawyer’s
performance was deficient and that this deficient performance
prejudiced the defense. Strickland v. Washington, 466 U. S. 668, 687
(III) (104 SCt 2052, 80 LE2d 674) (1984). An attorney performs
deficiently under Strickland if he does so in an “objectively
unreasonable way considering all the circumstances and in the light
of prevailing professional norms.” Thomas v. State, 303 Ga. 700, 702
(2) (814 SE2d 692) (2018) (citation and punctuation omitted).
Prejudice is shown by demonstrating “a reasonable probability
sufficient to undermine confidence in the outcome that, but for
counsel’s alleged unprofessional errors, the result of the proceeding
8 would have been different.” Miller v. State, 285 Ga. 285, 286 (676
SE2d 173) (2009) (citation and punctuation omitted).
Foreman has failed to prove deficient performance or prejudice.
The only particular deficiencies that he alleges are that his lawyer
failed to call Matthews as a witness and failed to put a photograph
of Matthews into evidence. But Foreman did not call Matthews to
testify at the hearing on his motion for new trial, and he did not
otherwise show what Matthews would have said if he had, in fact,
been called as a witness at trial. Likewise, Foreman did not put any
photographs of Matthews into the record in connection with his
motion for new trial. As a result, we have no idea whether
Matthews’s testimony or a photograph would have been helpful in
any way to the defense at trial.3 And without knowing these things,
we cannot say that trial counsel was deficient when he failed to
3 To the extent that some evidence suggests that Matthews participated
in the shooting — in Robinson’s statement to investigators, see Division 2 supra, Robinson said that Matthews shot Fain near the entrance of the club and that Foreman then “finished him off” in the parking lot — it suggests only that Matthews and Foreman jointly killed Fain. Evidence that Matthews was an accomplice to Foreman would not have been especially helpful to Foreman. We find no evidence in the record to suggest that Matthews killed Fain alone and without the complicity of Foreman. 9 develop and present this evidence to the jury, nor can we say that
Foreman was prejudiced by that failure. See Jones v. State, 289 Ga.
111, 114 (2) (a) (709 SE2d 773) (2011) (mere speculation about the
contents of a document did not support a finding of deficient
performance or prejudice). Foreman has not proved his claim of
ineffective assistance.
Judgment affirmed. All the Justices concur.
DECIDED AUGUST 19, 2019. Murder. Floyd Superior Court. Before Judge Sparks. Cooper, Barton & Cooper, Ashley A. Cooper, Michael D. Cooper, for appellant.
10 Leigh E. Patterson, District Attorney, John F. McClellan, Jr., 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.