309 Ga. 850 FINAL COPY
S20A0884. GRAY v. THE STATE.
NAHMIAS, Presiding Justice.
Appellant Roshun Gray was convicted of malice murder and
two firearm offenses in connection with the shooting death of
Ferderian Bennett. In this appeal, Appellant contends that he was
legally incompetent to stand trial and that his trial counsel provided
ineffective assistance by failing to investigate his incompetency.
Both of those claims are meritless, so we affirm.1
1 Bennett was killed on January 14, 2012. In August 2012, a Fulton
County grand jury indicted Appellant for malice murder, two counts of felony murder, aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. In February 2015, Appellant was reindicted for those same crimes. At a trial from June 1 to 5, 2015, the jury found Appellant guilty of all charges. The trial court sentenced him to serve life in prison for malice murder and five consecutive years for each of the firearm counts. The aggravated assault count merged into the malice murder conviction. Although the trial court also purported to merge the felony murder counts, those counts were actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 374 (434 SE2d 479) (1993). Through new counsel, Appellant filed a timely motion for new trial in July 2015; he then obtained different counsel, who amended the motion in September 2017 and January 2018. After an evidentiary hearing in May 2019, the trial court denied the motion in October 2019. Appellant filed a timely notice of appeal, and the case was docketed to this Court’s April 2020 term and submitted for decision on the briefs. 1. Viewed in the light most favorable to the verdicts, the
evidence presented at Appellant’s trial showed the following. On the
night of January 14, 2012, Appellant went to a club in Atlanta with
his brother Antoninne Sagoes and Sagoes’s brother-in-law Jeremy
White. White had fought with Bennett, the owner of the club, outside
the club earlier that night. After Bennett came outside and argued
with White again, two witnesses saw Appellant, who was a convicted
felon, pull out a gun and fire a shot toward Bennett. One of the
witnesses saw Appellant fire a second shot before he and his
associates fled.
Bennett, who had been shot once, was taken to a hospital,
where he soon died. Investigators did not find any weapons at the
crime scene, and several witnesses testified that they did not see
Bennett with a gun that night. Investigators later interviewed
Sagoes, who said that although he did not see Appellant shoot
Bennett, after the shooting he asked Appellant what happened, and
Appellant replied that he saw Bennett pull out a pistol and that
Appellant was not going to “lose another brother.” Records for a cell phone associated with Appellant showed that six days after the
shooting, he sent a text message that said, “[E]verythang gone by
straight juss a matter of time . . . juss cant come back to atlanta its
a good reason i did wat i did it was either him or my bra.”
Investigators arrested Appellant in Fort Valley more than four
months later. He did not testify at trial. His theories of defense were
that Sagoes or White could have shot Bennett; that the two
eyewitnesses’ accounts of the shooting were not credible; and that
the case was not adequately investigated.
Appellant does not challenge the legal sufficiency of the
evidence supporting his convictions. Nevertheless, in accordance
with this Court’s customary practice in murder cases, we have
reviewed the record and conclude that, when viewed in the light
most favorable to the verdicts, the evidence presented at trial and
summarized above was sufficient to authorize a rational jury to find
Appellant guilty beyond a reasonable doubt of the crimes of which
he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt
2781, 61 LE2d 560) (1979). See also Vega v. State, 285 Ga. 32, 33 (673 SE2d 223) (2009) (“‘It was for the jury to determine the
credibility of the witnesses and to resolve any conflicts or
inconsistencies in the evidence.’” (citation omitted)).2
2. (a) In his January 2018 second amended motion for new
trial, Appellant claimed for the first time that his constitutional
right to due process was denied because he was legally incompetent
at the time of his trial in June 2015 and that his trial counsel
provided ineffective assistance by failing to investigate his
incompetency. To support those same two claims on appeal,
Appellant points to testimony he presented during the May 2019
hearing on the motion for new trial from his mother Barbara Banks,
his trial counsel Robert Citronberg, and expert forensic psychologist
Dr. Jamie Dickson.
Banks testified that as a child, Appellant was hyperactive and
in special education classes, and that at about age nine, he was
2 We remind litigants that the Court will end its practice of considering
the sufficiency of the evidence sua sponte in non-death penalty cases with cases docketed to the term of court that begins in December 2020. See Davenport v. State, 309 Ga. 385, 399 (4) (b) (846 SE2d 83, 94) (2020). The Court began assigning cases to the December Term on August 3, 2020. placed in the custody of the Division of Family and Children Services
(DFCS) and then treated at the Devereux Advanced Behavioral
Health facility until he was about 18 years old. Banks also testified
that as an adult, Appellant “was on disability” and did not work
because he was angry, hyperactive, and “couldn’t function right,”
and that he had a seizure disorder that “affect[s] his mental
functioning.” She claimed that she told Citronberg that Appellant
had “a mental case,” but Citronberg never procured Appellant’s
records.
Citronberg, who is a very experienced criminal defense
attorney, testified on direct examination that before Appellant’s
trial, he spoke to Banks, who indicated that Appellant had been in
a special education class as a child; that he asked her to look for any
records she had regarding Appellant’s education; and that she could
not find any. Citronberg added that he may have called some schools
in search of the records, but that Banks never told him that
Appellant had been in DFCS’s care, so he did not contact DFCS.
Dr. Dickson testified that Appellant’s records showed that during his childhood, he had been diagnosed with Tourette’s
disorder, attention deficit hyperactivity disorder, and a mild
intellectual disability and had been prescribed antipsychotic
medication to treat paranoia, insomnia, and aggression; that he did
not complete high school; and that his score on an IQ test
administered when he was 15 years old was 55. Dr. Dickson
interviewed Appellant for a total of six hours in November 2017 and
January 2018. She administered an IQ test and concluded that
Appellant’s full scale IQ score was 47, “an extremely low range.” Dr.
Dickson also questioned Banks about Appellant’s adaptive
functioning and determined that his score was again in an
“extremely low range.” Dr. Dickson diagnosed Appellant with
schizophrenia and a moderate intellectual disability.
Dr. Dickson administered a test for assessing legal competency
in individuals with intellectual disabilities and concluded that
Appellant’s score was consistent with the mean score of individuals
with intellectual disabilities who were found incompetent to stand
trial. She noted in her report, which was admitted into evidence, that Appellant’s speech was not easily understood, and she testified
that he reported auditory and visual hallucinations and that his
responses to questions about his trial showed that he was not “able
to communicate factual events about his case” and did not
understand that he had been sentenced to life in prison. Dr. Dickson
also noted in her report that Appellant did not know the meaning of
several basic legal terms, including “guilty or not guilty,” “sentence,”
and “testify,” and did not understand the role of the jury, witnesses,
prosecutor, or judge.
Dr. Dickson testified that she attempted to assess whether
Appellant was malingering about his reported mental health
symptoms, but she concluded that she could not obtain valid test
results because the assessment questions needed to be asked
verbatim and Appellant could not understand what she was asking.
Dr. Dickson testified on cross-examination that she considered
administering a test to determine cognitive malingering, but that
none of those types of tests are validated for individuals with
intellectual disabilities. In her report, Dr. Dickson said that Appellant appeared to put forth his maximum effort on the IQ test
and that “it is unlikely that [Appellant] was exaggerating the extent
of any of his mental health conditions.” Based on her evaluation, Dr.
Dickson concluded that Appellant would not have been able to
reasonably assist his attorney during trial; that he would not have
been able to comprehend his own rights at trial; and that it was
“highly unlikely that he would have been competent” at the time of
his trial.
To rebut Dr. Dickson’s conclusion, the State presented expert
testimony from clinical psychologist Dr. Glenn Egan, who conducted
a competency evaluation of Appellant in September 2018. Dr. Egan
testified that based on the evaluation and several tests he
administered to Appellant to assess malingering, he concluded that
Appellant was “trying to look” intellectually and psychiatrically
disabled.3 Dr. Egan acknowledged that Appellant may have a mild
3 Dr. Egan acknowledged on cross-examination that two of the tests for
malingering that he administered had not been validated for intellectually impaired individuals, but he explained that Appellant’s scores on those tests were not borderline, indicating that Appellant was exaggerating his impairments rather than misunderstanding the tests’ questions. intellectual disability but explained that an individual could easily
“fake” a low IQ score. Dr. Egan also said that there is a “probable
likelihood” that Banks exaggerated Appellant’s impairments when
she answered questions about his adaptive functioning. Dr. Egan
concluded that based on all of the evidence, Appellant was
competent at the time of his trial.
The State also offered a substantial amount of other evidence
to rebut Appellant’s claim that he was incompetent at the time of
his trial. Trial counsel Citronberg testified on cross-examination
that he and Appellant were able to communicate with each other
about the case; that it appeared that Appellant understood those
communications; that he had arranged for competency evaluations
in other criminal cases; and that he would have filed a motion to
determine Appellant’s competency if Appellant had not understood
their communications. Citronberg also testified that Appellant
understood the charges against him and the consequences of going
to trial; that Appellant was capable of assisting in his defense; and
that at the time of trial, Citronberg did not believe that Appellant was incompetent. In addition, two prosecutors on Appellant’s case
testified that there was no indication during trial that he was
incompetent.
Appellant’s jail and prison records showed that he was not
prescribed any psychotropic medication while he was incarcerated
before and during his trial. The State also introduced into evidence
a report from a routine assessment by a mental health associate at
the Fulton County Jail five days after Appellant’s trial ended. The
report said that Appellant had no noted psychosis and “appropriate
thought content, tight associations, and a pleasant affect,” and that
Appellant said that his family was “keep[ing] on [his] lawyer to
make sure he get[s] an appeal.” In September 2018, Appellant told
a prison counselor that he had been sentenced for a “murder that
did not involve him” and that he was “working with his lawyer to get
his overturn.” In addition, the State introduced into evidence
documents relating to Appellant’s 1998, 2004, 2005, and 2007 guilty
pleas to various crimes; the transcripts of the guilty plea hearings
give no indication of incompetence, and during one of the hearings Appellant asked the trial court if it could “reinstate me on my
probation [for a probation violation in another case] . . . or try to get
me another court date.” The State also tendered an excerpt from
Appellant’s trial transcript in which he answered without difficulty
a series of the court’s questions about whether he wanted to testify.
Finally, the State tendered into evidence audio recordings and
transcripts of dozens of phone calls Appellant made while he was
incarcerated after trial. During several of the calls, Appellant
mentioned going to court and asked his mother Banks to call his
lawyer or to retrieve “paperwork” from the Social Security
Administration and Devereux. During one call, he mentioned
wanting to “get rid of [his] life sentence” or have it “reduce[d]”;
during another, he advised Banks not to get upset on the stand
“[b]ecause they [are] going to keep asking you the same question [in]
different ways,” adding that “my lawyer probably already told you
about that though.” Another call showed that when Banks began
talking about the facts of Appellant’s case, Appellant said, “[W]e
ain’t gonna talk about that on the phone.” Dr. Egan testified that Appellant’s discussions during the phone calls were not consistent
with an IQ score of 47 and that the calls showed that Appellant had
the ability to recall events and “understood what he was facing.”
In its order denying Appellant’s amended motion for new trial,
the trial court found that Appellant was legally competent at the
time of his trial. The court noted in particular that although the
evidence admitted at the hearing on the motion suggested that
Appellant “may have learning and . . . behavioral difficulties, the jail
phone calls presented by the State demonstrate [his] keen
understanding of his legal situation and involvement in the
handling of his case” and that nothing in Appellant’s
communications with the court throughout his case “gave rise to a
concern about his competency.” The trial court also ruled that
Appellant’s trial counsel did not provide ineffective assistance.
(b) Appellant claims first that the trial court erred by
concluding that he was competent when he stood trial in June 2015.
We disagree.
“[T]he constitutional guarantee of due process forbids the conviction of [a defendant] who is incompetent.” Humphrey v.
Walker, 294 Ga. 855, 857 (757 SE2d 68) (2014). But “‘[t]he threshold
for competency is easily met in most cases,’” as the test for
competency is merely whether at the time of trial the defendant is
capable of understanding the nature and object of the proceedings,
comprehends his own condition in reference to those proceedings,
and is able to assist his counsel in providing a proper defense. Sims
v. State, 279 Ga. 389, 390, 392 (614 SE2d 73) (2005) (citation
omitted). When a finding of competency is challenged on appeal, the
question is whether, “after reviewing the evidence in the light most
favorable to the State, a rational trier of fact could have found that
the defendant failed to prove by a preponderance of the evidence
that he was incompetent to stand trial.” Id. at 391. See also Traylor
v. State, 280 Ga. 400, 406-408 (627 SE2d 594) (2006) (holding that
when a defendant raises for the first time in a motion for new trial
a substantive due process claim based on his alleged incompetency
at the time of his trial, he must prove by a preponderance of the
evidence that he was in fact incompetent at that time). Appellant argues that the trial court erred by finding that he
had not met his burden of proving that he was incompetent at the
time of his trial because Banks’s and Dr. Dickson’s testimony about
Appellant’s impairments was more credible than Dr. Egan’s
testimony that Appellant was malingering. But the credibility of the
witnesses at the motion for new trial hearing was for the trial court
to determine, and the court was entitled to credit Dr. Egan’s opinion.
See, e.g., Tye v. State, 298 Ga. 474, 477-478 (782 SE2d 10) (2016)
(“[I]t was for the [trial] court, as fact finder, to judge the credibility
of the opposing expert witnesses [regarding the appellant’s
competency].”).4
Moreover, the trial court’s conclusion was supported by
substantial evidence other than Dr. Egan’s testimony. Appellant’s
4 Citing Sims, in which we held that the evidence presented at Sims’s
competency proceeding showed that he was incompetent to stand trial, Appellant notes that his score of 47 on the IQ test that Dr. Dickson administered approximates Sims’s IQ of 45-46. See 279 Ga. at 391. But “a low IQ score alone is just one indicia, not a determinative finding, that a defendant is unable to stand trial.” Id. at 393. In any event, Sims is factually distinguishable from Appellant’s case, because none of the expert witnesses who evaluated Sims opined that he had exaggerated his cognitive impairments. See id. at 392. experienced trial counsel and two prosecutors on his case saw no
indications before or during trial that Appellant was incompetent,
nor was any issue of Appellant’s competency raised in his four prior
criminal cases. The trial court noted that its communications with
Appellant raised no concern about his competence during the trial,
and Appellant does not argue that the court should have conducted
a sua sponte inquiry into his competency. See Biggs v. State, 281 Ga.
627, 629 (642 SE2d 74) (2007) (explaining that a defendant’s right
to procedural due process is violated when the trial court fails to sua
sponte hold a competency hearing after information that raises a
bona fide doubt about the defendant’s competence becomes known
to the court before or during trial).
In addition, Appellant did not appear incompetent during his
post-trial interactions with jail and prison personnel, and his
comments to them demonstrated his understanding that he had
been sentenced for murder and that he was working with his lawyer
to appeal his convictions. Perhaps most telling, as the order denying
the motion for new trial points out, the recordings of the jail phone calls showed that Appellant understood his legal situation and was
actively assisting his post-conviction counsel in preparing for the
motion for new trial proceedings. Viewed in the light most favorable
to the State, the evidence presented at the motion for new trial
hearing was easily sufficient to authorize a rational trier of fact to
conclude that Appellant failed to prove by a preponderance of the
evidence that he was incompetent to stand trial. See, e.g., Tye, 298
Ga. at 480; Slaughter v. State, 292 Ga. 573, 579 (740 SE2d 119)
(2013). Accordingly, this claim fails.
(c) Appellant’s other claim is that his trial counsel Citronberg
provided ineffective assistance by failing to investigate his
incompetency. To prove this claim, Appellant must show both that
his counsel’s performance was professionally deficient and that, but
for the deficient 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). See also Wiggins v. Smith, 539 U.S. 510, 521-522
(123 SCt 2527, 156 LE2d 471) (2003). We need not address both parts of this test if Appellant makes an insufficient showing on one.
See Strickland, 466 U.S. at 697.
Pretermitting whether Citronberg performed deficiently by
failing to explore the issue of Appellant’s incompetency, Appellant
has not met his burden of showing a reasonable probability that an
investigation would have resulted in his being found incompetent to
stand trial. We presume that had Citronberg investigated
Appellant’s incompetency and presented evidence in support of his
claim at a pretrial competency hearing, it would have been the same
evidence that Appellant’s new counsel presented at the motion for
new trial hearing. See Scott v. State, 301 Ga. 573, 579 (802 SE2d
211) (2017) (“[A] claim of prejudice from deficient performance fails
as speculative unless the defendant produces or proffers the
evidence that competent performance allegedly would have
produced.”). See also Martin v. Barrett, 279 Ga. 593, 595-596 (619
SE2d 656) (2005). As we explained above, the evidence presented at
the hearing was sufficient to support a rational finding that
Appellant was competent to stand trial. Appellant has therefore failed to show that but for Citronberg’s failure to investigate, there
is a reasonable probability that he would have been found
incompetent at the time of his trial. See Scott, 301 Ga. at 579-580.
Judgment affirmed. All the Justices concur, except Warren, J., not participating.
Decided September 28, 2020.
Murder. Fulton Superior Court. Before Judge Krause. Stephen R. Scarborough, for appellant. Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Stephany J. Luttrell, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Alex M. Bernick, Assistant Attorney General, for appellee.