FIFTH DIVISION MCFADDEN, P. J., GOBEIL and PINSON, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
April 14, 2022
In the Court of Appeals of Georgia A22A0348. WILSON v. THE STATE.
PINSON, Judge.
Jonathan George Wilson and a co-defendant were convicted of armed robbery,
aggravated assault, and possession of a firearm during the commission of a crime.
During opening statements of the joint trial, the co-defendant’s counsel made
comments suggesting that Wilson (and not the co-defendant) committed the crimes.
Wilson contends on appeal that his trial counsel rendered constitutionally ineffective
assistance by failing to object to those comments, which in his view violated his
Confrontation Clause rights under Bruton v. United States, 391 U. S. 123, 126 (88
SCt 1620, 20 LEd2d 476) (1968). But even assuming comments made during an
opening statement are properly subject to a Bruton challenge, these comments would
stand up to that challenge, because they did not introduce any testimonial out-of-court statement by a non-testifying co-defendant. As a result, an objection to these
comments likely would have been meritless, and so Wilson’s claim of ineffective
assistance fails. And Wilson’s other claims of error were either not preserved for
appeal or not supported with argument, so we affirm his convictions and sentences.
Background
Wilson and a co-defendant, Dijoun Drake, were indicted on 14 counts of armed
robbery, aggravated assault, and possession of a firearm during the commission of a
crime. They were tried together.
At the outset of trial, the court instructed the jury that the attorneys would make
opening statements, but that “[t]his opening statement is not evidence. Remember that
what the lawyers say is not evidence. But [it] is a preview or an outline of what they
expect the evidence to be.”
During the opening statements that followed, Drake’s counsel made comments
that cast Wilson in a guilty light. He began by saying, “Ladies and gentlemen,
welcome to the trial of Jonathan Wilson and, and? Well, that’s the question.” Later,
he said, “Dijoun Drake’s wallet and ID were the only evidence of him around the
scene here. They were left there because he happened to leave them before Mr.
2 Wilson and -- committed this crime.” Wilson’s counsel did not object to these
remarks.
After the State rested, both Wilson and Drake moved for directed verdicts on
all counts. The trial court denied the motions. Wilson and Drake both then rested
without presenting any evidence. Both were convicted on all counts.
Both defendants moved for a new trial. While the motions were pending, the
defendants attended a resentencing hearing after the State conceded it had not proven
its case on Count 14 of the indictment. Count 14 charged the defendants under OCGA
§ 16-11-106 with possessing a gun while committing armed robberies. But the State
stipulated that the purported shotgun used by the defendants was actually an air rifle;
it did not have a projectile propelled by gunpowder, and therefore did not qualify as
a “firearm” under the statute. See Fields v. State, 216 Ga. App. 184, 187 (1) (453
SE2d 794) (1995) (a “firearm” within the meaning of OCGA § 16-11-106 is a weapon
that discharges a projectile by force of gunpowder). Both attorneys made clear that,
in light of this stipulation, they had advised their clients to request to be resentenced.
However, both defendants told the trial court that they did not wish to be resentenced
at that time.
3 Months later, the trial court heard the motions for new trial at a combined
hearing. No witnesses were called. Wilson, now represented by new counsel, argued
that his trial counsel was ineffective for failing to object when Drake’s counsel
implicated Wilson during his opening statement. Neither Wilson nor Drake argued
that their air rifle did not qualify as a firearm under Count 14, but the State raised the
point on its own and conceded that it had not proven its case.
In a one-page order, the trial court denied Wilson’s motion for new trial as to
Counts 1-13, but granted it as to Count 14, “as the evidence presented by the State
was insufficient to prove the essential elements of such offense.” On the same day,
the court nolle prossed Count 14 as to Wilson.
Wilson appealed. We dismissed that appeal for lack of jurisdiction, noting that
because Wilson had not been resentenced to reflect the nolle prosse of Count 14, the
case was not final. We directed that on the entry of a resentencing order, the superior
court clerk should re-transmit the appeal, with no need for Wilson to file a second
notice of appeal. See Wilson v. State, ___ Ga. App. ___ (Case No. A20A1343,
decided February 25, 2020). Wilson was duly resentenced, and this appeal followed.
Discussion
4 1. To prevail on a claim of ineffective assistance of counsel under the Sixth
Amendment, a defendant must establish both that counsel’s performance was
deficient and that the deficient performance prejudiced the defense. Stafford v. State,
___ Ga. ___ (3) (a) (865 SE2d 116) (2021) (citing Strickland v. Washington, 466 U.S.
668, 687 (III) (104 SCt 2052, 80 LEd2d 674) (1984)). To establish deficient
performance, the defendant must demonstrate that counsel “‘performed at trial in an
objectively unreasonable way considering all the circumstances and in the light of
prevailing professional norms.’” Anthony v. State, 311 Ga. 293, 294-95 (1) (857 SE2d
682) (2021). There is a “‘strong presumption’” that counsel acted reasonably, so the
defendant must show that “‘no reasonable lawyer would have done what his lawyer
did, or would have failed to do what his lawyer did not.’” Id. at 295 (1). Relevant
here, it is not unreasonable to fail make an objection that would be meritless. Stafford,
___ Ga. at ___ (3) (a).
Here, Wilson contends that his counsel was ineffective for failing to object to
remarks his co-defendant’s counsel made during opening statements that implicated
Wilson in the crime. In his view, those remarks violated his Confrontation Clause
rights under Bruton v. United States, 391 U. S. 123, 126 (88 SCt 1620, 20 LEd2d
476) (1968).
5 Under Bruton, a defendant is deprived of his rights under the Confrontation
Clause of the Sixth Amendment when “co-defendants are jointly tried and ‘the
testimonial statement of a co-defendant who does not testify at trial is used to
implicate another co-defendant in the crime.’” Collins v. State, ___ Ga. ___ (8) (b)
(864 SE2d 85) (2021) (citing Bruton, 391 U. S. at 126). But Bruton “excludes only
the statement of a non-testifying co-defendant that standing alone directly inculpates
the defendant.” Id. at ___ (8) (b).
To begin with, it is not clear that comments made during an opening statement
are even subject to a Bruton challenge. Because an opening statement is not evidence,
our Supreme Court has observed that “the appropriateness of a Bruton challenge in
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FIFTH DIVISION MCFADDEN, P. J., GOBEIL and PINSON, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
April 14, 2022
In the Court of Appeals of Georgia A22A0348. WILSON v. THE STATE.
PINSON, Judge.
Jonathan George Wilson and a co-defendant were convicted of armed robbery,
aggravated assault, and possession of a firearm during the commission of a crime.
During opening statements of the joint trial, the co-defendant’s counsel made
comments suggesting that Wilson (and not the co-defendant) committed the crimes.
Wilson contends on appeal that his trial counsel rendered constitutionally ineffective
assistance by failing to object to those comments, which in his view violated his
Confrontation Clause rights under Bruton v. United States, 391 U. S. 123, 126 (88
SCt 1620, 20 LEd2d 476) (1968). But even assuming comments made during an
opening statement are properly subject to a Bruton challenge, these comments would
stand up to that challenge, because they did not introduce any testimonial out-of-court statement by a non-testifying co-defendant. As a result, an objection to these
comments likely would have been meritless, and so Wilson’s claim of ineffective
assistance fails. And Wilson’s other claims of error were either not preserved for
appeal or not supported with argument, so we affirm his convictions and sentences.
Background
Wilson and a co-defendant, Dijoun Drake, were indicted on 14 counts of armed
robbery, aggravated assault, and possession of a firearm during the commission of a
crime. They were tried together.
At the outset of trial, the court instructed the jury that the attorneys would make
opening statements, but that “[t]his opening statement is not evidence. Remember that
what the lawyers say is not evidence. But [it] is a preview or an outline of what they
expect the evidence to be.”
During the opening statements that followed, Drake’s counsel made comments
that cast Wilson in a guilty light. He began by saying, “Ladies and gentlemen,
welcome to the trial of Jonathan Wilson and, and? Well, that’s the question.” Later,
he said, “Dijoun Drake’s wallet and ID were the only evidence of him around the
scene here. They were left there because he happened to leave them before Mr.
2 Wilson and -- committed this crime.” Wilson’s counsel did not object to these
remarks.
After the State rested, both Wilson and Drake moved for directed verdicts on
all counts. The trial court denied the motions. Wilson and Drake both then rested
without presenting any evidence. Both were convicted on all counts.
Both defendants moved for a new trial. While the motions were pending, the
defendants attended a resentencing hearing after the State conceded it had not proven
its case on Count 14 of the indictment. Count 14 charged the defendants under OCGA
§ 16-11-106 with possessing a gun while committing armed robberies. But the State
stipulated that the purported shotgun used by the defendants was actually an air rifle;
it did not have a projectile propelled by gunpowder, and therefore did not qualify as
a “firearm” under the statute. See Fields v. State, 216 Ga. App. 184, 187 (1) (453
SE2d 794) (1995) (a “firearm” within the meaning of OCGA § 16-11-106 is a weapon
that discharges a projectile by force of gunpowder). Both attorneys made clear that,
in light of this stipulation, they had advised their clients to request to be resentenced.
However, both defendants told the trial court that they did not wish to be resentenced
at that time.
3 Months later, the trial court heard the motions for new trial at a combined
hearing. No witnesses were called. Wilson, now represented by new counsel, argued
that his trial counsel was ineffective for failing to object when Drake’s counsel
implicated Wilson during his opening statement. Neither Wilson nor Drake argued
that their air rifle did not qualify as a firearm under Count 14, but the State raised the
point on its own and conceded that it had not proven its case.
In a one-page order, the trial court denied Wilson’s motion for new trial as to
Counts 1-13, but granted it as to Count 14, “as the evidence presented by the State
was insufficient to prove the essential elements of such offense.” On the same day,
the court nolle prossed Count 14 as to Wilson.
Wilson appealed. We dismissed that appeal for lack of jurisdiction, noting that
because Wilson had not been resentenced to reflect the nolle prosse of Count 14, the
case was not final. We directed that on the entry of a resentencing order, the superior
court clerk should re-transmit the appeal, with no need for Wilson to file a second
notice of appeal. See Wilson v. State, ___ Ga. App. ___ (Case No. A20A1343,
decided February 25, 2020). Wilson was duly resentenced, and this appeal followed.
Discussion
4 1. To prevail on a claim of ineffective assistance of counsel under the Sixth
Amendment, a defendant must establish both that counsel’s performance was
deficient and that the deficient performance prejudiced the defense. Stafford v. State,
___ Ga. ___ (3) (a) (865 SE2d 116) (2021) (citing Strickland v. Washington, 466 U.S.
668, 687 (III) (104 SCt 2052, 80 LEd2d 674) (1984)). To establish deficient
performance, the defendant must demonstrate that counsel “‘performed at trial in an
objectively unreasonable way considering all the circumstances and in the light of
prevailing professional norms.’” Anthony v. State, 311 Ga. 293, 294-95 (1) (857 SE2d
682) (2021). There is a “‘strong presumption’” that counsel acted reasonably, so the
defendant must show that “‘no reasonable lawyer would have done what his lawyer
did, or would have failed to do what his lawyer did not.’” Id. at 295 (1). Relevant
here, it is not unreasonable to fail make an objection that would be meritless. Stafford,
___ Ga. at ___ (3) (a).
Here, Wilson contends that his counsel was ineffective for failing to object to
remarks his co-defendant’s counsel made during opening statements that implicated
Wilson in the crime. In his view, those remarks violated his Confrontation Clause
rights under Bruton v. United States, 391 U. S. 123, 126 (88 SCt 1620, 20 LEd2d
476) (1968).
5 Under Bruton, a defendant is deprived of his rights under the Confrontation
Clause of the Sixth Amendment when “co-defendants are jointly tried and ‘the
testimonial statement of a co-defendant who does not testify at trial is used to
implicate another co-defendant in the crime.’” Collins v. State, ___ Ga. ___ (8) (b)
(864 SE2d 85) (2021) (citing Bruton, 391 U. S. at 126). But Bruton “excludes only
the statement of a non-testifying co-defendant that standing alone directly inculpates
the defendant.” Id. at ___ (8) (b).
To begin with, it is not clear that comments made during an opening statement
are even subject to a Bruton challenge. Because an opening statement is not evidence,
our Supreme Court has observed that “the appropriateness of a Bruton challenge in
the situation of comments made in the course of [an attorney’s] opening statement is
subject to question.” Zackery v. State, 286 Ga. 399, 402 (3) (688 SE2d 354) (2010).
For this reason, when the Supreme Court has considered a Bruton challenge to an
attorney’s opening statement, it has generally just assumed without deciding that the
comments could be challenged. See, e. g., Collins, ___ Ga. at ___ (8) (b) (assuming
without deciding that the defendant could raise a Bruton challenge to comments the
prosecutor made during opening statement, the challenge would fail because the
prosecutor’s comments were not clearly inculpatory of the defendant); Simpkins v.
6 State, 303 Ga. 752, 756-57 & n.4 (II) (814 SE2d 289) (2018) (same); Zackery, 286
Ga. at 402 (3) (same). See also Polite v. State, 273 Ga. App. 235, 238 (3) (614 SE2d
849) (2005) (no Bruton issue where the remarks objected to were made during
opening statement and the trial court instructed the jury that opening statements are
not evidence). But see Richard v. State, 287 Ga. App. 399, 402-03 (4) (651 SE2d
514) (2007) (where State conceded it violated Bruton by referring in opening
statement to a testimonial out-of-court statement by a co-defendant, trial court did not
err by denying motion for new trial when evidence of guilt was overwhelming).
We will follow the Supreme Court’s lead and assume without deciding that the
opening-statement comments here may be challenged under Bruton. But even
assuming a Bruton challenge here would have been appropriate, it would have failed.
There is no question that counsel’s comments here implicated Wilson, but comments
by counsel don’t raise Bruton issues just because they implicate the defendant. See
Collins, ___ Ga. at ___ (8) (b) (prosecutor’s comment that he would not be able to
ask the detective what the co-defendants said about each other did not violate
Bruton); Simpkins, 303 Ga. at 756-57 (II) (prosecutor’s comment that a co-defendant
had told a GBI agent “what he’d done” did not violate Bruton); Zackery, 286 Ga. at
402 (3) (prosecutor’s assertion that a co-defendant had told law enforcement that he
7 “felt” the defendant was involved in the crime did not violate Bruton). Instead, the
Confrontation Clause problem with such comments arises only if they introduce a
“statement of a non-testifying co-defendant that standing alone directly inculpates the
defendant.” Collins, ___ Ga. at ___ (8) (b) (emphasis added). But here, Drake’s
counsel said only that Drake’s belongings were at the scene of the crime “because he
happened to leave them before Mr. Wilson and -- committed this crime.” Because
counsel neither introduced nor even alluded to any out-of-court testimonial statement,
any objection to Drake’s counsel’s comments was likely to be meritless. See Stafford,
___ Ga. at ___ (3) (a); Simpkins, 303 Ga. at 757 (II) (prosecutor’s comment during
closing did not violate Bruton because it did not expressly assert that a co-defendant
had inculpated the defendant). At the very least, we cannot say that “no reasonable
lawyer” would have failed to object, see Anthony, 311 Ga. at 295 (1), so Wilson has
not established that his counsel’s performance was deficient for this reason. Stafford,
___ Ga. at ___ (3) (a).1
1 Wilson contends that his case should at least be remanded for an evidentiary hearing, since no evidence was introduced at the hearing on his motion for new trial. See Elkins v. State, 306 Ga. 351, 363 (4) (c) (830 SE2d 217) (2019) (“[w]hen there has been no evidentiary hearing in the trial court on a preserved claim of ineffective assistance of counsel, this Court generally must remand the case to the trial court for an evidentiary hearing on the issue”). But “[a] remand is not mandated if we can determine from the record that a defendant cannot establish ineffective assistance
8 2. Wilson also contends that his trial counsel was ineffective for failing to file
a timely demurrer to Count 14 of the indictment. But that issue has not been
preserved for appellate review. “‘To preserve the issue of ineffective assistance of
previous counsel, new counsel must raise the issue at the earliest practicable
opportunity of post-conviction review or the issue is waived.’” McIntyre v. State, 312
Ga. 531, 536 (3) (863 SE2d 166) (2021). Wilson had new counsel for his amended
motion for new trial and at the hearing on that motion, but that counsel did not raise
this claim of ineffectiveness at either point. The issue is therefore waived and not
preserved for appeal. Id.; see also Prince v. State, 295 Ga. 788, 793 (2) (b) (764 SE2d
362) (2014) (claim of ineffective counsel not preserved for appeal when defendant
did not raise it in an amended motion for new trial filed by new counsel or at the
hearing on that motion).
3. Wilson asserts that the trial court’s single-page order denying his motion for
new trial was “clearly erroneous because it contained no findings of fact or
conclusions of law.” Wilson does not support that contention with argument or
citation to authority and does not mention it again in his brief. The argument is
under the two-prong test set forth” in Strickland. Id. Here, we did just that, so no remand is necessary.
9 therefore deemed abandoned, and we do not consider it. See Court of Appeals Rule
25 (c) (2).
Judgment affirmed. McFadden, P. J., and Gobeil, J., concur.