318 Ga. 681 FINAL COPY
S24A0105. HOWARD v. THE STATE.
PETERSON, Presiding Justice.
Marquavious Howard appeals his felony murder conviction for
the 2017 shooting death of Jacorbin King.1 Howard argues that (1)
the evidence was insufficient to sustain his convictions, (2) his trial
1 The victim’s first name was spelled “Jakorbin” in the indictment but
“Jacorbin” in the trial transcript and the District Attorney’s brief on appeal. King was shot and killed on the morning of April 30, 2017. On January 30, 2018, a Muscogee County grand jury returned an indictment charging Howard with malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), aggravated assault (Count 3), and possession of a firearm during the commission of a felony (Count 4). Four others — Jylonda Jones, Samuel Jones, Tyler Teal, and Tramal Williams — were also charged with Counts 1-3, and Samuel Jones, Tyler Teal, and Tramal Williams were charged with other crimes, as well. Tramal Williams testified at Howard’s trial that he expected his case to be transferred to juvenile court, while Howard’s other three co- defendants pleaded guilty to charges less than murder. At a trial held in May 2018, a jury found Howard not guilty of malice murder or the firearm count, but guilty of felony murder and aggravated assault. The trial court sentenced Howard to life with the possibility of parole for felony murder; the aggravated assault count merged. Howard filed a timely motion for new trial that was amended by appellate counsel. Following a hearing, the trial court denied the motion in an order entered on May 23, 2022. Howard filed a notice of appeal on June 22, 2022. Because the record transmitted to this Court was incomplete, the appeal was stricken from the docket on April 19, 2023. Upon transmission of a more complete record, the case was re-docketed to this Court’s term beginning in December 2023 and submitted for consideration on the briefs. counsel was ineffective for failing to file a motion to suppress
evidence of a photo identification, and (3) the trial court erred in
excusing a juror for cause. We conclude that (1) the evidence was
sufficient, (2) Howard has not shown that counsel performed
deficiently in failing to move to suppress evidence of the photo
identification, and (3) Howard’s juror claim fails because he has not
shown that the selected jury was biased or incompetent. We
therefore affirm.
The evidence at trial showed as follows. On the night of April
29, 2017, a group of teenagers, including Tramal Williams
(“Tramal”), Samuel Jones (“Sam”), and Tyler Teal, went to King’s
Muscogee County apartment, planning to steal marijuana. Teal
carried a BB gun, and Sam carried his father’s firearm. At the
apartment, Tramal grabbed the marijuana and began to run out,
causing a fight that spilled out into the hallway. During the scuffle,
Sam fell down a stairwell and lost some belongings, including his
father’s gun.
Agitated about losing the items, Sam began making phone
2 calls, asking for another gun and threatening to kill someone. Sam
called his older sister, Jylonda Jones (“Jylonda”), who lived in
Hoover, Alabama, and asked for her help; she agreed to come pick
him up and asked her 21-year-old boyfriend, Howard, to accompany
her on the approximately two-and-a-half-hour drive. On the
morning of April 30, 2017, Jylonda and Howard picked up Tramal,
Sam, and Teal in a white Toyota Camry and drove to King’s
apartment. Everyone went inside except for Jylonda. The group
initially came back to the car after being unable to find Sam’s
belongings, but then went back in a few minutes later after Howard
noted a bedroom door had been locked. After the group re-entered
the apartment, King emerged from behind the locked bedroom door,
a struggle ensued, and Howard shot King multiple times.
Tramal testified that he saw Howard with a firearm magazine
on the morning of the shooting. Tramal testified that King “barged
out into” Howard when King came out of the bedroom, then Tramal
heard gunshots as he ran out of the apartment building.
Sam testified that he saw Howard with a handgun just before
3 the group entered King’s apartment for the last time. Sam testified
that Teal became entangled with King when King “bust out of the
[bed]room[,]” and King made contact with Howard’s person, with
King “go[ing] for [Howard’s] mouth area.” Sam testified that he
pulled Teal off of King, then heard shots as he and Teal ran out of
the apartment.
Teal testified that he heard one shot while he was trying to
break up a fight between Howard and King, then ran away. Teal
testified that Howard was the only other member of their group who
was in the apartment when the victim was shot. Teal testified that
he did not see Howard with a gun but saw him clutching his pants
in such a manner that he could have been holding one.
Jylonda testified that she knew Howard to have a weapon
generally. Sam, Teal, and Tramal all testified that none of the three
of them had a firearm in the apartment on the morning of the
shooting.
A neighbor who heard the shooting, Rodrell Williams, saw the
group entering and leaving the apartment building. The neighbor
4 said a person matching Howard’s description was carrying a
weapon, and was accompanied by three others who looked like “little
kids.” Rodrell’s wife called 911 around 7:00 a.m. and testified that
she heard gunshots while she was on that call.
Surveillance video capturing the area adjacent to King’s
apartment building showed the arrival of a white sedan on the
morning of April 30, 2017, then a group of four young men twice
walking away from, then running back toward, the car. In their trial
testimony, Jylonda, Sam, and Tramal identified Howard on the
surveillance video as being part of the group.
A jail bunkmate of Howard, Merrick Redding, testified that
Howard confessed to shooting King. According to Redding, Howard
told him that he rode to Columbus with his girlfriend to retrieve her
brother, then went to King’s apartment to retrieve a gun, shoe, and
glasses that had been lost in a botched robbery, and that when King
burst through a locked door, Howard shot him multiple times with
a .40-caliber, FN-brand pistol. Redding reported that Howard told
him that King and Teal had tussled, and King hit Howard in the
5 mouth. According to Redding, Howard first shot King in the side,
then fired more shots as King was falling, then finally, because
Howard was upset about being hit in the mouth, Howard shot King
in the head, firing a total of four to six shots.
A firearms expert testified that the shell casings recovered
from the scene were consistent with having been fired by, among
other possible types of guns, a .40-caliber FN handgun and had all
been ejected from the same firearm. The expert also testified that
bullets recovered from the scene, as well as two bullets recovered
from King’s body, were consistent with having been fired by a .40-
caliber FN handgun and had all been fired from the same firearm.
The autopsy of King revealed four gunshot wounds, one in the head
and three in the abdomen or torso, with at least one indicating a
bullet entered the left side of the victim. The medical examiner
testified that the distance between King and the gun when it was
discharged could not be determined.
1. Howard first argues that the evidence was insufficient to
support his felony murder conviction. We disagree.
6 When evaluating the legal sufficiency of evidence, we view the
evidence in the light most favorable to the verdicts and inquire
whether a rational trier of fact could have found the defendant guilty
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,
319 (99 SCt 2781, 61 LE2d 560) (1979). “Under this review, we must
put aside any questions about conflicting evidence, the credibility of
witnesses, or the weight of the evidence, leaving the resolution of
such things to the discretion of the trier of fact.” Mims v. State, 304
Ga. 851, 853 (1) (a) (823 SE2d 325) (2019) (citation and punctuation
omitted).
To support Howard’s conviction for felony murder, the evidence
presented at trial had to show that he caused King’s death while in
the commission of an aggravated assault with a deadly weapon. See
OCGA § 16-5-1 (c). The relevant portion of Georgia’s aggravated
assault statute requires the prosecution to show that a defendant
committed assault “[w]ith a deadly weapon or with any object,
device, or instrument which, when used offensively against a person,
is likely to or actually does result in serious bodily injury[.]” OCGA
7 § 16-5-21 (a) (2). The crime of assault in Georgia requires that the
defendant “[a]ttempt[ed] to commit a violent injury to the person of
another; or . . . [c]ommit[ted] an act which place[d] another in
reasonable apprehension of immediately receiving a violent injury.”
OCGA § 16-5-20 (a). A jury may find a defendant guilty beyond a
reasonable doubt if the evidence shows either that he directly
committed the crime or that he was a “party thereto.” OCGA § 16-2-
20 (a). And a jury may infer a defendant’s criminal intent, and
thereby find him guilty as a party to a crime, “from his presence,
companionship, and conduct before, during, and after the offense.”
Willis v. State, 315 Ga. 19, 24 (2) (880 SE2d 158) (2022) (citation and
punctuation omitted).
Howard appears to argue that the evidence (1) was insufficient
to show that he directly committed felony murder, because the
evidence did not show that he shot King, and (2) was insufficient to
support his conviction on a party-to-the-crime theory, given a lack of
evidence that the group that entered King’s apartment the morning
of the shooting planned anything other than retrieving a weapon.
8 Howard does not challenge the evidence showing that he was in
King’s apartment when King was shot, instead arguing that the
evidence was “insufficient to prove anything other than Howard was
merely present at the scene[.]” But there was ample evidence
showing that he was the person who shot Howard. Tramal, Sam,
and Teal all testified that none of the three had a firearm, and they
all testified that they either saw Howard with a gun or that he
appeared to have one. This testimony was supported by the
testimony of King’s neighbor that he saw someone matching
Howard’s description carrying a gun. Teal also testified that Howard
was the only other member of their group who was in the apartment
when he heard King being shot. Moreover, Howard admitted to a jail
bunkmate that he shot King in the head and torso with a .40-caliber
FN pistol. And that account by the jail bunkmate was corroborated
by ballistics evidence consistent with King having been shot with a
.40-caliber FN handgun and autopsy findings that King was shot in
the head and torso.
Howard also appears to suggest that the evidence was
9 insufficient to show that he shot King because the jury necessarily
found that he was not the shooter when the jury found him not guilty
of the firearm possession count. But an acquittal on one count is not
itself a basis to challenge the sufficiency of the evidence as to
another count. See Kolokouris v. State, 271 Ga. 597, 598 (2) (523
SE2d 311) (1999); see also McElrath v. State, 308 Ga. 104, 108-109
(2) (a) (839 SE2d 573) (2020) (noting abolition of rule that
inconsistent verdicts warrant reversal).
Although Howard suggests that the evidence was insufficient
to show that he had the requisite intent to be guilty of the crime of
conviction, “[f]elony murder requires only that the defendant
possessed the requisite criminal intent to commit the underlying
felony — in this case, aggravated assault, which also does not
require intent to kill.” Mathews v. State, 314 Ga. 360, 365 (1) (877
SE2d 188) (2022) (citation and punctuation omitted). And the jury
could infer that Howard himself had the intent to injure King
violently when he shot at him multiple times, including in the head.
Howard has not shown that the evidence was insufficient to sustain
10 his conviction.
2. Howard next argues that trial counsel was ineffective for
failing to file a motion to suppress evidence of a photo identification
of him by Tramal that Howard argues was based on an
impermissibly suggestive process. We disagree.
As memorialized in a video recording that is part of the record,
Tramal was shown a group of individual photos during an interview
by investigators. He indicated, with some uncertainty, that one of
the photos looked like Sam’s sister’s boyfriend, whom he knew as
“Quay” and had not met prior to the morning of the shooting. Later
in the interview, Tramal was shown what appeared to be a one-page
photo array of six headshots, and definitively selected one of the
photos as “Quay,” stating affirmatively that he was sure it was him.
A detective who interviewed Tramal and was present for the photo
array presentations explained in his trial testimony that the initial
group of photos was taken from photos posted on Facebook, whereas
the second array included a driver’s license photo of Howard.
During Tramal’s trial testimony, both the individual photos
11 (State’s Exhibit 71) and the one-page photo array (State’s Exhibit
72) were admitted without objection. But when the State attempted
to publish to the jury the individual photos that comprised Exhibit
71 after their admission, Howard’s trial counsel moved for a mistrial
on the basis that, although he thought at the time they were
admitted that the photos had been provided in discovery, counsel in
fact had “never seen these pictures before[,]” and a photo of Howard
placed Howard’s character in question because the photo showed
him making gang signs and holding cash, which counsel said
suggested Howard was a drug dealer. The prosecutor represented
that the photos had been provided in discovery and shown to defense
counsel just prior to Tramal identifying them for admission. The
prosecutor said that although the photo of Howard showed him with
“large amounts of money in his hand[,]” it did not show him making
gang signs, and that the purpose of the photo was to demonstrate
how Howard was identified during the interview. The trial court
denied the motion for a mistrial but indicated “that particular
exhibit” — specifically referencing “71C” — would not go out with
12 the jury, which defense counsel agreed “satisf[ied his] concern.”
Tramal later testified without objection that he picked Howard
out of the photo array that was admitted as Exhibit 72. The detective
who interviewed Tramal also testified about Tramal picking
Howard’s photo out of an array as Jylonda’s boyfriend. The detective
acknowledged in his testimony that in viewing the original array,
Tramal said that he was not sure of his identification of Howard; the
detective noted that a hat Howard was wearing in the picture left a
shadow on his face. The State played portions of the video recorded
interview of Tramal for the jury, although the transcript is not
precise as to which portions.
Tramal also identified Howard in court as Jylonda’s boyfriend,
the person he knew as “Quay.” In his trial testimony, Tramal also
identified Howard on the video surveillance footage from outside of
King’s apartment. Tramal described riding in the car with Howard
both before and after the shooting, saying the ride to King’s
residence took at least 30 minutes. The video appears to show that
the sun had begun to rise before the group arrived at the apartment
13 building.
Howard argues that trial counsel was ineffective when counsel
“failed to file a motion to suppress the photo lineup” because the
identification procedure used by the detective when interrogating
Tramal was impermissibly suggestive.2 To prove his claim of
ineffective assistance of counsel, Howard must show that counsel’s
performance was deficient and that counsel’s deficient performance
prejudiced Howard’s defense. See Strickland v. Washington, 466
U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984). “If [a defendant]
fails to establish one of these two prongs, we need not examine the
2 To the extent that Howard made below separate arguments that counsel was ineffective for failing to review any particular photo prior to trial or failing to object promptly to their admission into evidence, he has abandoned those arguments on appeal. Although he mentions those arguments in his brief to this Court, he enumerates as error on appeal only that counsel was ineffective for failing to “file a motion to suppress the photo lineup.” This is insufficient to raise any such additional claims of ineffective assistance of counsel for our review. See Mims v. State, 310 Ga. 853, 854 n.2 (854 SE2d 742) (2021) (“An appealing party may not use its brief to expand its enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the enumeration of errors.” (citation and punctuation omitted)). Moreover, because he makes no substantive argument or citation of authority regarding trial counsel’s alleged deficiencies in this regard, we would not address such claims of ineffectiveness even if they were contained in his enumerations of error. See former Supreme Court Rule 22; Session v. State, 316 Ga. 179, 185 (2) (887 SE2d 317) (2023). 14 other.” Payne v. State, 314 Ga. 322, 328 (3) (877 SE2d 202) (2022)
(citation and punctuation omitted). “To show deficient performance,
the defendant must demonstrate that counsel performed counsel’s
duties in an objectively unreasonable way, considering all of the
circumstances and in the light of prevailing professional norms.” Id.
at 328-329 (3) (citation omitted). “To establish prejudice, [a
defendant] must show that there is a reasonable probability that,
but for counsel’s unprofessional error, the result of the proceeding
would have been different.” Id. at 329 (3) (citation and punctuation
omitted). “In reviewing a ruling on a claim of ineffective assistance
of counsel, we defer to the trial court’s findings of fact unless they
are clearly erroneous, but we apply the law to the facts de novo.” Id.
(citation and punctuation omitted).
When a defendant claims that his counsel was ineffective for
failing to file a motion to suppress evidence, he cannot show that his
counsel performed deficiently unless he can show that the motion
would have been granted. See Armour v. State, 290 Ga. 553, 554-555
(2) (a) (722 SE2d 751) (2012) (appellant failed to establish deficient
15 performance where he failed to show that an objection to certain
eyewitness identifications of him during photo arrays would have
been sustained). A motion to suppress an out-of-court identification
by a witness as impermissibly suggestive in violation of due process
— the motion that Howard contends his counsel should have filed —
requires a showing that the identification was “so impermissibly
suggestive that it could result in a substantial likelihood of
misidentification[.]” Lewis v. State, 314 Ga. 654, 662 (3) (b) (878
SE2d 467) (2022) (citation and punctuation omitted). We employ a
two-step process to determine whether identification evidence meets
that test. See id. “First, we decide whether the identification
procedure used was impermissibly suggestive.” Id. (citation and
punctuation omitted). “Second, if a trial court properly concludes
that the State employed an impermissibly suggestive pre-trial
identification procedure, the issue becomes whether, considering the
totality of the circumstances, there was a substantial likelihood of
irreparable misidentification.” Id. (citation and punctuation
omitted). “If, however, a trial court properly determines that the
16 identification procedure is not unduly suggestive, it is not necessary
to consider whether there was a substantial likelihood of irreparable
misidentification.” Id. (citation and punctuation omitted).
Here, whether or not the photo identification procedure used
with Tramal was impermissibly suggestive, we conclude that
Howard has not shown that there was a substantial likelihood of
irreparable misidentification, such that a motion to suppress the
photo identification evidence would have succeeded. See Newton v.
State, 308 Ga. 863, 863, 867 (2) (843 SE2d 857) (2020) (concluding
that, even assuming photo array was impermissibly suggestive,
defendant had not shown a substantial likelihood of irreparable
misidentification, and thus trial court did not err in denying motion
to suppress). In evaluating the likelihood of irreparable
misidentification, a court considers whether, under the totality of
the circumstances, the identification is reliable. See id. at 867 (2).
Factors to consider include (1) a witness’s opportunity to view the
accused at the time of the crime; (2) the witness’s degree of attention;
(3) the accuracy of the witness’s prior description of the accused; (4)
17 the witness’s level of certainty at the confrontation; and (5) the
length of time between the crime and the confrontation. See id.
Here, Howard argues that because Tramal had not met him
prior to the day of the shooting, the likelihood of misidentification
was higher. But Howard does not grapple with the evidence showing
that Tramal had a significant opportunity to view him before and
after the shooting. As noted above, Howard and Tramal rode
together in a car both before and after the shooting, a journey that
was at least 30 minutes each way. As demonstrated by the
surveillance video, Tramal would have had the opportunity to view
Howard in daylight at least by the time that they arrived at King’s
apartment. Tramal and Howard also went into King’s apartment
twice together. And Tramal expressed certainty in identifying
Howard in the second, one-page photo array. The extensive
opportunities for Tramal to view Howard, as well as the certainty
with which he ultimately identified Howard, greatly lessened the
likelihood that any suggestiveness in the initial photo array
influenced the reliability of Tramal’s subsequent identifications of
18 Howard. See Curry v. State, 305 Ga. 73, 77 (2) (823 SE2d 758) (2019)
(despite trial court’s conclusion that State employed an
impermissibly suggestive pretrial identification procedure with
bystander witnesses, no abuse of discretion in overruling objection
to identification evidence, given factors such as witnesses’ “adequate
opportunity in full daylight” to view the defendant and high level of
certainty of identifications at the time of trial); Wright v. State, 294
Ga. 798, 800, 802-803 (2) (756 SE2d 513) (2014) (rejecting argument
that in-court identification should have been excluded for
substantial likelihood of irreparable misidentification, even though
witness had not seen the shooter prior to the night of the shooting
and was unable to select defendant definitively from photo array,
where witness had sufficient opportunity to observe shooter, gave
fairly accurate description of gunman, and testified that he was 95
percent certain of his identification). And although Tramal was
hesitant about identifying Howard in the initial photo array, the
uncontested evidence is that Howard was wearing a hat that cast a
shadow on his face in this photo, both explaining Tramal’s hesitance
19 about identifying him from that photo and making it less likely that
the viewing of this photo influenced Tramal’s subsequent, more
certain identifications of Howard. Having failed to show that an
objection to Tramal’s identification of Howard would have been
successful, Howard has failed to establish deficient performance by
his trial counsel for not filing a motion to suppress, so Howard’s
claim fails on the first prong of the ineffective assistance test. See
Pearson v. State, 311 Ga. 26, 29-31 (2) (855 SE2d 606) (2021) (no
deficient performance in failing to secure ruling on motion to
suppress identifications where totality of the circumstances did not
show that the trial court would have found a substantial likelihood
of misidentification); see also Walker v. State, 295 Ga. 688, 692-693
(3) (763 SE2d 704) (2014) (equating the admissibility of in-court
identification with whether suggestive out-of-court identification
leads to a substantial likelihood of irreparable misidentification).
3. Finally, Howard argues that the trial court erred in striking
a prospective juror for cause. We conclude that Howard has not
shown reversible error.
20 During voir dire, in response to the State’s question of whether
any member of the panel “may have some moral or religious or
philosophical beliefs that would prevent you from sitting in
judgment of another person,” Juror No. 18 said she did not “feel
comfortable judging” and did not “feel comfortable making the
judgment on someone else’s situation.” She added, “I just feel like I
pray that — for everyone and I just think that God is going to make
everybody better. But it doesn’t always happen that way, but I still
pray for them.” During follow-up questioning, Juror No. 18 stated
that she would follow the trial court’s instructions, “listen to all the
evidence[,] and follow what the [j]udge told [her] to do[,]” and she
told the prosecutor that if she “fe[lt] that [the] evidence [was] strong
enough, then it would have to be a guilty verdict.” But she also
expressed concern about “holding the young man’s life in [her]
hands[,]” noting she had five grandsons. And when the prosecutor
pressed her on whether she could “set aside” her “moral belief” and
thoughts about her grandsons and “decide this case without all of
that influencing [her,]” Juror No. 18 responded, “I don’t think I could
21 do that. I really don’t.” The State moved to strike Juror No. 18 for
cause. Howard’s counsel responded that the prospective juror should
not be struck, noting her statements that she would follow
instructions and vote guilty if the evidence were strong enough. The
State argued in turn that “her initial response and her final response
clearly indicates that she has so much compassion and cannot set
aside her moral convictions[.]” The trial court granted the State’s
motion to strike, saying, “I’m kind of falling back on primacy and
recency on this one.” Howard did not further object to the striking of
the juror.3
Whether or not the trial court abused its discretion in striking
Juror No. 18, Howard’s claim provides no grounds for reversal. “It is
well settled that a defendant does not have a right in a particular
3 The Attorney General argues that this claim is not preserved. But the
cases that the Attorney General cites do not address whether a defendant needs to re-state an objection to excusing a juror for cause once the court has ruled. See Hill v. State, 310 Ga. 180, 186-187 (3) (a) (850 SE2d 110) (2020); Passmore v. State, 274 Ga. 200, 202 (5) (552 SE2d 816) (2001). And our precedent indicates that a defendant does not need to re-state such an objection. See Humphreys v. State, 287 Ga. 63, 69 (4) (694 SE2d 316) (2010), disapproved on other grounds by Willis v. State, 304 Ga. 686, 706-707 (11) (a) n.3 (820 SE2d 640) (2018). 22 juror but rather only has a right to a legal and impartial jury[.]”
Saylor v. State, 316 Ga. 225, 232-233 (3) (887 SE2d 329) (2023). The
erroneous dismissal for cause of a prospective juror for a reason that
is not constitutionally impermissible does not require reversal “if
there is no showing that a competent and unbiased jury was not
selected.” Id. at 233 (3). Howard does not argue that the jury that
was selected was biased or incompetent. Accordingly, his claim fails.
Judgment affirmed. All the Justices concur.
Decided March 19, 2024.
Murder. Muscogee Superior Court. Before Judge McBride.
Angela B. Dillon, for appellant.
Stacey S. Jackson, District Attorney, Gary D. Bergman, Tina G.
Stanford, Assistant District Attorneys; Christopher M. Carr,
Attorney General, Beth A. Burton, Deputy Attorney General, Meghan
H. Hill, Michael A. Oldham, Clint C. Malcolm, Senior Assistant
Attorneys General, for appellee.