306 Ga. 783 FINAL COPY
S19A0594. WEST v. THE STATE.
BENHAM, Justice.
Appellant Geno West appeals his convictions for felony murder
and other crimes in connection with the shooting death of Marcus
Simpson.1 He argues that the evidence presented at his trial was
1 The crimes occurred on July 1, 2008. On February 2, 2010, a Fulton
County grand jury indicted Appellant, Antonio Harris, and Rontryuas Harris for malice murder, felony murder predicated on aggravated assault, aggravated assault with a deadly weapon of Simpson, aggravated assault with a deadly weapon of Kenneth Williams, aggravated assault with a deadly weapon of Kingston Ridley, and possession of a firearm during the commission of a felony (aggravated assault). Appellant was separately indicted for felony murder predicated on possession of a firearm by a convicted felon and possession of a firearm by a convicted felon, both in connection with Simpson’s death. Appellant, Antonio, and Rontryuas were tried jointly from September 12 to 20, 2011. A jury found Appellant not guilty of malice murder and felony murder predicated on possession of a firearm by a convicted felon but guilty on all other counts. The trial court sentenced Appellant as a recidivist to serve life in prison for felony murder, two consecutive terms of 20 years in prison for the aggravated assaults of Williams and Ridley, and five years in prison for each of the two counts of firearm possession. The remaining count merged for sentencing. Rontryuas was found not guilty on all counts, and Antonio’s case is not part of this appeal. Appellant filed a motion for new trial on October 3, 2011, which he amended twice through new counsel. Following a hearing, the trial court denied the motion (as amended) on July 17, 2015. Appellant filed a notice of appeal to this Court, and this case was docketed to the April 2019 term and thereafter submitted for a decision on the briefs. legally insufficient to support his convictions, that the trial court
violated his right to full and fair appellate review by failing to follow
the proper procedure for supplementing the record, and that his trial
counsel rendered constitutionally ineffective assistance. We affirm.
Viewed in the light most favorable to the jury’s verdicts, the
evidence presented at Appellant’s trial showed the following.
Kingston Ridley, his girlfriend Terica Marable, and her children
lived in one unit of a duplex in Fulton County. In April 2008,
Appellant’s cousin and co-indictee Antonio Harris rented the
duplex’s other unit. Though Antonio leased the unit, his brother and
co-indictee Rontryuas moved in. In May 2008, before Rontryuas
moved in, the brothers hired Victor Powell to run cable to their unit.
To this end, Powell climbed a nearby utility pole to illegally connect
the brothers’ unit to the main cable line. When he came down, a
police officer was waiting to arrest him. Several weeks later, Antonio
complained to Powell that the unit’s cable was not working. Powell
returned to the unit, went back up the pole, and saw that the cable
line had been connected to Ridley’s unit; he disconnected that line
2 and connected the line for Antonio’s unit. Ridley came out of his unit
and asked Powell to hook the cable back up; Powell refused to do so
unless he was paid. When Powell went inside Antonio’s unit, Ridley
heard Powell tell someone to bring his pistol outside. Later that
evening, Antonio called Powell again to report that the cable was not
working.
Late in the evening on July 1, 2008, Ridley, Simpson, Kenneth
Williams, Brian Brown, and Tredon Tarver were sitting on the front
porch of the duplex drinking beer and eating pizza. Either Appellant
or Antonio came out of their unit and asked the men, “Why y’all
motherf***ers tear down our cable?” Ridley responded, “Ain’t
nobody took none of your cable.” Then, shots were fired. Antonio
fired the first shot, which hit the ground, and Appellant moved
Antonio out of the way and started shooting. Brown was inside the
duplex during the shooting and estimated that he heard between
eight and ten gunshots. Williams, who was shot in the knee, jumped
off the porch and played dead. Ridley was shot in the left thigh and
fled the scene. Simpson, who was asleep on the porch steps, was shot
3 in both the head and the back, injuries which resulted in his death.
Neither Ridley nor any of his companions were armed. Both
Williams and Ridley testified that they saw Appellant shooting, and
Brown and Tarver testified that Appellant was present on the porch
immediately before and during the shooting. From the scene,
investigators recovered six nine-millimeter cartridge cases, which
were fired from the same weapon, and five .380 cartridge cases,
which were all fired from a second weapon.
Because the victims knew Appellant only by his nickname
“Twon,” law enforcement was not readily able to identify Appellant
as a suspect. In January 2010, Appellant, who was on probation for
a 2009 conviction, saw Marable, Ridley’s girlfriend, at the Atlanta
probation office. Appellant approached Marable and asked whether
she remembered him; he then asked, “[Are] your people going to
court on that?” Appellant then went outside and called someone on
his cellphone while watching Marable through the window. Marable
felt threatened and told a probation officer that she saw someone at
the probation office who had committed a murder at her apartment.
4 The probation officer referred Marable to the Atlanta Police
Department, and, after viewing a photo lineup, Marable identified
Appellant as one of the shooters. Law enforcement then created a
six-person photographic lineup, from which several other witnesses
identified Appellant as being involved in the shooting.
Appellant testified in his own defense that, on the night of the
shooting, he rode with Antonio to the duplex so that Antonio could
let someone in. Appellant testified that, while he was waiting by the
car for Antonio, he heard gunshots and then fled the scene.
1. Appellant argues that the evidence presented at trial was
legally insufficient to support his convictions because he was not
identified as a suspect until one-and-a-half years after the crime and
because the testimony of certain witnesses was inconsistent as to
who exactly was shooting on the night of the crimes. We review the
sufficiency of the evidence in the light most favorable to the jury’s
verdicts, and we defer to the jury’s assessment of the weight and
credibility of the evidence. See Jackson v. Virginia, 443 U. S. 307
(III) (B) (99 SCt 2781, 61 LE2d 560) (1979). The evidence presented
5 at trial and recounted above – which included the testimony of
multiple eyewitnesses identifying Appellant as a shooter – was
sufficient to authorize a reasonable jury to find Appellant guilty
beyond a reasonable doubt of the crimes of which he was convicted.
See id.
2. Appellant filed a timely notice of appeal to this Court on
July 27, 2015, but on December 2, 2016, the Clerk of this Court
returned the record to the trial court as incomplete because State’s
Exhibit 2, a recording of several 911 calls in which callers reported
the shooting, was omitted. On September 13, 2017, Appellant filed
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306 Ga. 783 FINAL COPY
S19A0594. WEST v. THE STATE.
BENHAM, Justice.
Appellant Geno West appeals his convictions for felony murder
and other crimes in connection with the shooting death of Marcus
Simpson.1 He argues that the evidence presented at his trial was
1 The crimes occurred on July 1, 2008. On February 2, 2010, a Fulton
County grand jury indicted Appellant, Antonio Harris, and Rontryuas Harris for malice murder, felony murder predicated on aggravated assault, aggravated assault with a deadly weapon of Simpson, aggravated assault with a deadly weapon of Kenneth Williams, aggravated assault with a deadly weapon of Kingston Ridley, and possession of a firearm during the commission of a felony (aggravated assault). Appellant was separately indicted for felony murder predicated on possession of a firearm by a convicted felon and possession of a firearm by a convicted felon, both in connection with Simpson’s death. Appellant, Antonio, and Rontryuas were tried jointly from September 12 to 20, 2011. A jury found Appellant not guilty of malice murder and felony murder predicated on possession of a firearm by a convicted felon but guilty on all other counts. The trial court sentenced Appellant as a recidivist to serve life in prison for felony murder, two consecutive terms of 20 years in prison for the aggravated assaults of Williams and Ridley, and five years in prison for each of the two counts of firearm possession. The remaining count merged for sentencing. Rontryuas was found not guilty on all counts, and Antonio’s case is not part of this appeal. Appellant filed a motion for new trial on October 3, 2011, which he amended twice through new counsel. Following a hearing, the trial court denied the motion (as amended) on July 17, 2015. Appellant filed a notice of appeal to this Court, and this case was docketed to the April 2019 term and thereafter submitted for a decision on the briefs. legally insufficient to support his convictions, that the trial court
violated his right to full and fair appellate review by failing to follow
the proper procedure for supplementing the record, and that his trial
counsel rendered constitutionally ineffective assistance. We affirm.
Viewed in the light most favorable to the jury’s verdicts, the
evidence presented at Appellant’s trial showed the following.
Kingston Ridley, his girlfriend Terica Marable, and her children
lived in one unit of a duplex in Fulton County. In April 2008,
Appellant’s cousin and co-indictee Antonio Harris rented the
duplex’s other unit. Though Antonio leased the unit, his brother and
co-indictee Rontryuas moved in. In May 2008, before Rontryuas
moved in, the brothers hired Victor Powell to run cable to their unit.
To this end, Powell climbed a nearby utility pole to illegally connect
the brothers’ unit to the main cable line. When he came down, a
police officer was waiting to arrest him. Several weeks later, Antonio
complained to Powell that the unit’s cable was not working. Powell
returned to the unit, went back up the pole, and saw that the cable
line had been connected to Ridley’s unit; he disconnected that line
2 and connected the line for Antonio’s unit. Ridley came out of his unit
and asked Powell to hook the cable back up; Powell refused to do so
unless he was paid. When Powell went inside Antonio’s unit, Ridley
heard Powell tell someone to bring his pistol outside. Later that
evening, Antonio called Powell again to report that the cable was not
working.
Late in the evening on July 1, 2008, Ridley, Simpson, Kenneth
Williams, Brian Brown, and Tredon Tarver were sitting on the front
porch of the duplex drinking beer and eating pizza. Either Appellant
or Antonio came out of their unit and asked the men, “Why y’all
motherf***ers tear down our cable?” Ridley responded, “Ain’t
nobody took none of your cable.” Then, shots were fired. Antonio
fired the first shot, which hit the ground, and Appellant moved
Antonio out of the way and started shooting. Brown was inside the
duplex during the shooting and estimated that he heard between
eight and ten gunshots. Williams, who was shot in the knee, jumped
off the porch and played dead. Ridley was shot in the left thigh and
fled the scene. Simpson, who was asleep on the porch steps, was shot
3 in both the head and the back, injuries which resulted in his death.
Neither Ridley nor any of his companions were armed. Both
Williams and Ridley testified that they saw Appellant shooting, and
Brown and Tarver testified that Appellant was present on the porch
immediately before and during the shooting. From the scene,
investigators recovered six nine-millimeter cartridge cases, which
were fired from the same weapon, and five .380 cartridge cases,
which were all fired from a second weapon.
Because the victims knew Appellant only by his nickname
“Twon,” law enforcement was not readily able to identify Appellant
as a suspect. In January 2010, Appellant, who was on probation for
a 2009 conviction, saw Marable, Ridley’s girlfriend, at the Atlanta
probation office. Appellant approached Marable and asked whether
she remembered him; he then asked, “[Are] your people going to
court on that?” Appellant then went outside and called someone on
his cellphone while watching Marable through the window. Marable
felt threatened and told a probation officer that she saw someone at
the probation office who had committed a murder at her apartment.
4 The probation officer referred Marable to the Atlanta Police
Department, and, after viewing a photo lineup, Marable identified
Appellant as one of the shooters. Law enforcement then created a
six-person photographic lineup, from which several other witnesses
identified Appellant as being involved in the shooting.
Appellant testified in his own defense that, on the night of the
shooting, he rode with Antonio to the duplex so that Antonio could
let someone in. Appellant testified that, while he was waiting by the
car for Antonio, he heard gunshots and then fled the scene.
1. Appellant argues that the evidence presented at trial was
legally insufficient to support his convictions because he was not
identified as a suspect until one-and-a-half years after the crime and
because the testimony of certain witnesses was inconsistent as to
who exactly was shooting on the night of the crimes. We review the
sufficiency of the evidence in the light most favorable to the jury’s
verdicts, and we defer to the jury’s assessment of the weight and
credibility of the evidence. See Jackson v. Virginia, 443 U. S. 307
(III) (B) (99 SCt 2781, 61 LE2d 560) (1979). The evidence presented
5 at trial and recounted above – which included the testimony of
multiple eyewitnesses identifying Appellant as a shooter – was
sufficient to authorize a reasonable jury to find Appellant guilty
beyond a reasonable doubt of the crimes of which he was convicted.
See id.
2. Appellant filed a timely notice of appeal to this Court on
July 27, 2015, but on December 2, 2016, the Clerk of this Court
returned the record to the trial court as incomplete because State’s
Exhibit 2, a recording of several 911 calls in which callers reported
the shooting, was omitted. On September 13, 2017, Appellant filed
in the trial court a motion to complete the record for his appeal in
which he specifically requested that he be granted a new trial if the
911 recording could not be located.
On March 13, 2018, the trial court held a hearing on
Appellant’s motion. At that hearing, the chief clerk of courts testified
that, according to her records, no copy of the 911 recording was
submitted to the clerk’s office after trial. The trial court took judicial
notice of the fact that, in that court after trial, the court reporter is
6 the custodian of evidence until the evidence is transmitted to the
“court reporter vault,” where exhibits remain until their transfer to
the clerk’s office. The trial court then recessed, directing the court
reporter and the parties to check the vault for the recording and
directing the State to determine whether it possessed a second copy
of the recording. The State located a certified transcript of the
recording, which the trial court admitted for limited demonstrative
purposes. The parties informed the trial court that an evidence log
in the vault indicated that the court reporter had deposited the
recording there; the parties, however, were unable to locate the
missing recording.
The trial court continued the hearing and directed the State to
make additional efforts to locate a copy of the recording. When the
hearing resumed on May 15, 2018, the State informed the court it
was unable to locate a copy of the recording. Appellant’s appellate
counsel again objected to supplementing the record with the
transcript of the recording, arguing that she never heard the
recording and could not independently verify the transcript’s
7 authenticity. The trial court thereafter ordered that the record be
supplemented with the certified transcript of the 911 recording. The
trial court explained that, in light of the significant evidence
adduced at trial showing Appellant’s guilt, the recording would have
little, if any, bearing on Appellant’s appeal and that the loss of the
recording did not entitle him to a new trial.
On appeal, Appellant contends that the trial court failed to
follow the procedure, as provided in OCGA § 5-6-41 (g),2 for
supplementing the trial record; that the trial court erred in
supplementing the record with a transcript of the lost recording; and
2 OCGA § 5-6-41 (g) provides:
Where a trial is not reported as referred to in subsections (b) and (c) of this Code section or where for any other reason the transcript of the proceedings is not obtainable and a transcript of evidence and proceedings is prepared from recollection, the agreement of the parties thereto or their counsel, entered thereon, shall entitle such transcript to be filed as a part of the record in the same manner and with the same binding effect as a transcript filed by the court reporter as referred to in subsection (e) of this Code section. In case of the inability of the parties to agree as to the correctness of such transcript, the decision of the trial judge thereon shall be final and not subject to review; and, if the trial judge is unable to recall what transpired, the judge shall enter an order stating that fact. 8 that, as a result, he has been denied his right to full and fair
appellate review of his convictions.
Where, as here, an otherwise complete record “is missing only
one or a few parts of the trial, the appellant is not entitled to a new
trial unless he alleges that he has been harmed by some specified
error involving the omitted part and shows that the omission
prevents proper appellate review of that error.” Gadson v. State, 303
Ga. 871, 878 (3) (a) (815 SE2d 828) (2018). Here, Appellant contends
only that his appellate counsel cannot determine whether any errors
occurred when the 911 recording was played for the jury and, as a
consequence, is prevented from adequately representing Appellant
on appeal. He makes a generalized assertion of harm but fails to
raise any specific objection to matters that occurred during this
portion of the trial; his only objection is to the recording’s omission
from the record. “Because Appellant has not shown that he has been
prevented from raising any viable issue on appeal or otherwise
harmed as a result of the minimally incomplete record, we affirm
his . . . convictions.” Id. at 877. Compare Johnson v. State, 302 Ga.
9 188, 198 (3) (c) (805 SE2d 890) (2017) (“[W]here the whole original
verbatim transcript of his trial is lost and the narrative re-creation
is manifestly inadequate, [an appellant] has not been given a fair
opportunity to identify any trial errors and resulting harm or
deficient performance by counsel and resulting prejudice.”
(emphasis in original)); Sheard v. State, 300 Ga. 117, 120-121 (2)
(793 SE2d 386) (2016) (new trial warranted where re-created trial
transcript excluded a “crucial portion” of the trial and appellant
alleged harm as a result of the missing portion).
3. Finally, Appellant asserts that his trial counsel rendered
constitutionally ineffective assistance by eliciting testimony on
cross-examination that, Appellant argues, impermissibly shifted the
burden of proof. Specifically, the lead investigator testified, in
response to being asked whether he was aware that one of the
occupants of Ridley’s unit was on probation and had an active bench
warrant for his arrest, that, had Appellant or one of his co-indictees
“come forward” with that information, then “that would have
changed things.”
10 To succeed on his claim of ineffective assistance, Appellant
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, [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, [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.
Haney v. State, 305 Ga. 785, 790 (2) (827 SE2d 843) (2019).
Appellant has not met this burden.
Even assuming that trial counsel’s failure to object constitutes
deficient performance, Appellant has not articulated, either to this
Court or to the trial court below, how the investigator’s isolated
statement affected the jury’s verdict. See Davis v. State, 306 Ga. 140,
144 (3) (a) (829 SE2d 321) (2019) (“[T]his Court is not required to
scour the record for support for an appellant’s arguments.”).
Further, “in light of the other strong evidence against [him], we see
no reasonable probability that an objection to this [testimony] would
11 have produced a different and more favorable outcome for
[Appellant].” Spell v. State, 305 Ga. 822, 826 (2) (828 SE2d 345)
(2019). See also Blaine v. State, 305 Ga. 513, 521 (4) (826 SE2d 82)
(2019) (“Trial counsel cannot be ineffective for failing to raise claims
that would not have . . . made any difference in the outcome of [the
defendant’s] case.”). This claim thus fails.
Judgment affirmed. All the Justices concur.
DECIDED SEPTEMBER 23, 2019. Murder. Fulton Superior Court. Before Judge Dempsey. Dawn M. Belisle, for appellant. Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Stephany J. Luttrell, Teri B. Walker, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew D. O’Brien, Assistant Attorney General, for appellee.