Newton v. State

843 S.E.2d 857, 308 Ga. 863

• Court: Supreme Court of Georgia
• Decided: June 1, 2020
• Docket: S20A0259
• Status: Published

Opinion

308 Ga. 863 FINAL COPY

S20A0259. NEWTON v. THE STATE.

BLACKWELL, Justice.

Cedric Newton, Jr., was tried by a Bibb County jury and

convicted of murder and other crimes in connection with the fatal

shooting of Udondra Hargrove. On appeal, Newton claims that the

trial court erred when it denied his motion to suppress evidence of

two out-of-court identifications. He also contends that he was denied

the effective assistance of counsel at trial. Finding no error, we

affirm.1

1 Hargrove was killed on October 8, 2010. On April 1, 2014, a Bibb County grand jury indicted Newton, charging him with murder with malice aforethought, two counts of murder in the commission of a felony, possession of a firearm by a convicted felon, possession of a firearm during the commission of a felony, and two counts of violating the Street Gang Terrorism and Prevention Act. Newton was tried in April 2014, and a jury found him guilty on all counts. The trial court sentenced Newton to imprisonment for life without the possibility of parole for malice murder, a consecutive term of imprisonment for five years for possession of a firearm during the commission of a felony, and a consecutive term of imprisonment for fifteen years for one Street Gang Act count. The other counts merged or were vacated by operation of law. Although it appears that the trial court erred when it merged the felon- in-possession count with one of the felony murder counts, see Atkinson v. State, 1. Viewed in the light most favorable to the verdict, the

evidence presented at trial shows the following. Newton—who was

also known as “Little G” — was a member of the “Mafia,” a criminal

street gang. Hargrove — who was also known as “Duck” — was an

inactive member of the “Crips,” a rival gang. The Mafia and the

Crips had been feuding since the 1980s, and Montpelier Avenue in

Macon was the “front line” dividing the territories that the gangs

claimed. Around 9:00 on the evening of October 8, 2010, Hargrove

was fatally shot on the corner of Montpelier and Pansy Avenues, on

the side of the street claimed by the Crips, near Dusty’s pool hall.2

Alvin Wright was a life-long friend of Hargrove and had known

Newton since 2007. On the evening of October 8, Wright was sitting

301 Ga. 518, 520 (2) (801 SE2d 833) (2017), this merger error benefits Newton, and the State has not raised it by cross-appeal, so we decline to correct the error. See Dixon v. State, 302 Ga. 691, 698 (4) (808 SE2d 696) (2017). Newton filed a motion for new trial in April 2014, which he amended for the final time in December 2018. After a hearing, the trial court denied his motion for new trial on December 19, 2018. Newton timely appealed, and this case was docketed to the term of this Court beginning in December 2019 and submitted for a decision on the briefs.

2 An autopsy revealed that Hargrove died as a result of four gunshot

wounds: two in the back, one in the forearm, and one in the thigh. in front of Dusty’s, smoking a cigarette. Around 9:00, Wright saw

Newton walking across the street, dressed in all black, with his

hands in his pockets. Wright said, “Hey, Little G,” and Newton

nodded back. Wright described Newton as a “light-skinned guy” with

dreadlocks and a tear-drop tattoo that extended from his eye to his

lip, down the entire side of his face.

After Newton walked past Dusty’s, Wright heard several

gunshots. He also heard a woman he knew, Gloria Redding, exclaim,

“Duck done got shot. Duck done got shot.” Wright ran into Dusty’s,

and when he came back out, he saw Hargrove “crawling like around

the corner with his hand extended out . . . like he was trying to reach

out for help. . . . And the next thing I know, his eyes closed.” Wright

testified that there was no one at the intersection except Redding,

Hargrove, and Newton. A few days after the shooting, Wright

identified Newton in a photographic lineup as the person he believed

was the shooter.

Redding did not testify because she died before trial. But two

officers testified about the statements she made to the police at the scene of the shooting. Redding told the police that, as she was

walking with Hargrove to the gas station, a black man walked past

them. He was wearing all-black clothes, including a hoodie, and had

a tear-drop tattoo under his right eye. As the man walked past,

Redding heard three or four shots, and Hargrove fell. The man then

ran across Montpelier Avenue.

Another witness, Kelvin Middleton, was sitting in a parked car

near the intersection of Montpelier and Pansy when he heard four

gunshots. He looked toward Dusty’s and saw a man running with a

gun in his hand. Middleton testified that the man was wearing black

clothing and had a “long dark spot” or “long mark” on the side of his

face that stretched from his eye to his lip. Middleton identified

Newton in a photographic lineup as the man he saw that night.

The day after the shooting, three police investigators visited

Newton’s residence to talk to him, not intending at the time to arrest

him. But when Newton opened the door and saw the officers, he

spontaneously said, “That’s all you-all got?” When the officers asked what he meant, Newton responded, “I thought you-all were gonna

bring the SWAT team.”

A jailhouse informant testified that he overheard Newton

talking to other Mafia gang members about the case. The informant

heard Newton saying, “Yeah, but the witness description doesn’t

really match me. . . . The witness described a darker skinned male

with a small tattoo under his eye. . . . I’m gonna get away with this

s**t because I’m lighter skinned and I have big tattoos on my face.”

On cross-examination, the informant added that Newton also said,

“I opened fire. I didn’t waste no time shooting that n****r.”

In addition to the foregoing, the State presented evidence that

Hargrove’s killing was gang-related. This evidence included the

testimony of a former prison officer that, in July 2009 (before

Hargrove’s death), Newton was interviewed at the Valdosta State

Prison about his gang affiliation as part of the prison security

process. Newton told the interviewing officer that he was a member

of the Mafia and that his role in the gang was the “shooter.” Newton

said he joined the gang to earn money, power, and respect, and he also said that the Crips were enemies of the Mafia. Furthermore, as

part of a separate investigation, the police discovered a photograph

of Newton in the cell phone of a known Mafia member. That

photograph depicted Newton holding a gun and making a “CK” sign

with his hand, which a gang expert testified stands for “Crip killer.”

The day that Hargrove was shot, October 8, was the Mafia leader’s

birthday.

Newton does not dispute that the evidence is sufficient to

sustain his convictions. But consistent with our usual practice in

murder cases, we independently have reviewed the record to assess

the legal sufficiency of the evidence. We conclude that the evidence

presented at trial, when viewed in the light most favorable to the

verdict, was sufficient to authorize a rational trier of fact to find

beyond a reasonable doubt that Newton 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. Newton contends that the trial court erred when it denied

his motion to suppress the out-of-court identifications made by Wright and Middleton using a photographic lineup. Evidence of an

out-of-court identification violates due process and is inadmissible

at trial if the identification procedure is “so impermissibly

suggestive that it could result in a substantial likelihood of

misidentification.” Blackmon v. State, 300 Ga. 35, 37 (3) (793 SE2d

69) (2016) (citation and punctuation omitted). An identification

procedure is unduly suggestive when it “leads the witness to the

virtually inevitable identification of the defendant as the

perpetrator, and is equivalent to the authorities telling the witness,

‘This is our suspect.’” Williams v. State, 286 Ga. 884, 888 (4) (b) (692

SE2d 374) (2010) (citation and punctuation omitted). “Where the

identification procedure is not unduly suggestive, it is not necessary

to consider whether there was a substantial likelihood of irreparable

misidentification.” Id. “We review a trial court’s determination that

a lineup was not impermissibly suggestive for an abuse of

discretion.” Westbrook v. State, 308 Ga. 92, 99 (4) (839 SE2d 620)

(2020).

Here, the out-of-court identifications by Wright and Middleton were based on the same photographic array containing six pictures.

The trial court denied Newton’s motion to suppress on the ground

that the array was not unduly suggestive. Newton challenges that

determination, arguing that the array is impermissibly suggestive

because his photograph differs significantly from the other

photographs in the array. More specifically, he asserts that his

photograph shows a more magnified close-up view of his face,

bringing inordinate attention to his facial tattoos; that his skin tone

is light in comparison with the other subjects; and that his clothing

cannot be seen at all, while the others are dressed differently.

It is true that the photograph of Newton looks different than

the others — it is a close-up shot, omitting the chin and the top of

the head. But we do not believe this aspect of the photograph invites

the witness to pick Newton out of the lineup. The cropped picture of

Newton’s face appears to be of poorer quality than most of the other

photographs, which display all of the subjects’ facial features.

Moreover, another picture in the array also differs significantly from

the others, showing a shirtless man from the waist up. One can discern some facial tattoos on Newton’s face on the photograph, but

they are not particularly clear, and, according to the testimony at

the suppression hearing, at least two other subjects in the array

have facial tattoos.3 And variations in the skin tones of the subjects

depicted in the array appear to be slight. Looking at the array as a

whole, Newton’s photograph does not jump out as that of the obvious

suspect, and so the trial court did not abuse its discretion when it

found that the array was not impermissibly suggestive. See

Marshall v. State, 285 Ga. 351, 352 (2) (676 SE2d 201) (2009) (“The

fact that defendant’s photograph was the only one depicting a gold

necklace did not make the photographic line-up unduly

suggestive.”); Waters v. State, 281 Ga. 119, 120 (2) (636 SE2d 538)

(2006) (although defendant contended that “the color of his shirt,

position of his head, and complexion in his photograph were

different from the other photos” in the lineup, “he failed to show how

3 The photographic array produced along with the record on appeal is a

black-and-white copy (and not a good one) of the actual color array used for the lineup, so it is difficult for us to discern anyone’s facial tattoos or skin tone. See Ware v. State, 279 Ga. 17, 18 (2) (608 SE2d 643) (2005) (“An appellant has the burden of proving trial court error by the appellate record.”). these differences would render [the] lineup unduly suggestive”);

Miller v. State, 270 Ga. 741, 743 (2) (512 SE2d 272) (1999) (lineup

was not impermissibly suggestive where the perpetrator was an inch

or two shorter than other participants and was only one of two

participants with facial hair).4

Even assuming that the photographic array was unduly

suggestive, Newton fails to show that there was a substantial

likelihood of irreparable misidentification. In evaluating the

likelihood of irreparable misidentification, a court considers several

factors, including:

(1) a witness’ opportunity to view the accused at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of accused; (4) the witness’ level of certainty at the confrontation; and (5) the length of time between the crime and the confrontation.

Mathis v. State, 293 Ga. 837, 842 (5) (750 SE2d 308) (2013). “The

ultimate question is, whether under the totality of the

4 Newton does not argue (and the evidence does not indicate) that the

conduct of the police or other circumstances apart from the photographic array made the lineup procedure unduly suggestive. circumstances, the identification is reliable.” McBride v. State, 291

Ga. 593, 595 (2) (732 SE2d 757) (2012) (citation and punctuation

omitted).

With respect to the out-of-court identification by Wright, he

testified that he knew Newton for two years prior to the shooting,

that he greeted Newton by name (“Little G”) when he saw him near

Dusty’s that night, and that Newton acknowledged his greeting. It

is thus clear that Wright believed he saw Newton that night, so it is

highly unlikely that the photographic array caused Wright to

misidentify the suspect. As to Middleton, Newton points out that it

was dark outside when Hargrove was shot, that Middleton was

across the street from the scene, and that he saw only a side profile

view of the suspect. Even so, Middleton made the identification only

six days after observing the suspect, and he testified that he had “no

doubt” that it was the man he saw. We cannot say, under the totality

of the circumstances, that Middleton’s identification was unreliable,

and so Newton has not shown a substantial likelihood of irreparable

misidentification. See Mathis, 293 Ga. at 842 (5) (finding no substantial likelihood of irreparable misidentification, in part

because the witnesses “identified appellant within weeks of the

crime” and identified him “from the photographic array with

certainty”). See also Padilla v. State, 273 Ga. 553, 554 (1) (544 SE2d

147) (2001).

3. Newton argues that he was denied the effective assistance of

counsel at trial. 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 his 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 discharges his responsibilities at

trial 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 would have been different.” Miller v. State,

285 Ga. 285, 286 (676 SE2d 173) (2009) (citation and punctuation

omitted). “If either Strickland prong is not met, this Court need not

examine the other prong.” Palmer v. State, 303 Ga. 810, 816 (IV)

(814 SE2d 718) (2018).

(a) Newton contends that he was denied the effective

assistance of counsel when his lawyer failed to object to an officer

testifying about Wright’s out-of-court identification of Newton.

During the direct examination of the officer, the prosecutor asked

about the photographic lineup presented to Wright, and the

following exchange occurred:

Q: . . . Did [Wright] indicate that he recognized Mr. Newton? A: Yes. Q: And did he indicate how he recognized him? A: Yes. Q: And what did he say? A: He indicated that this is the person that he witnessed shoot his friend up.

(Emphasis supplied.) Newton argues that the officer’s testimony

about Wright witnessing Newton “shoot his friend up” was prejudicial and that his lawyer should have objected to it.

Pretermitting whether the officer’s answer was objectionable,

Newton has failed to show prejudice under Strickland. Wright

testified unambiguously that he did not see the actual shooting, and

there is no reason to think the jury gave more weight to his pre-trial

statement — as recounted by the officer — than to his live testimony

at trial. At the same time, Wright’s testimony strongly implies that

Newton was the shooter — it shows that Newton was the only

person in the vicinity who could have shot Hargrove. So, it should

have come as no surprise that Wright actually believed Newton to

be the shooter based on things that Wright had seen and heard,

which explains his statement to the officer. Given Wright’s

testimony and the other strong evidence of Newton’s guilt, there is

no reasonable probability that the officer’s statement affected the

outcome of the trial. See Strickland, 466 U.S. at 694 (III) (B).

(b) Newton additionally contends that his trial lawyer was

constitutionally ineffective when he failed to introduce evidence of a

recorded statement that Redding had given to a detective. The record shows that Redding made three statements to law

enforcement officers in which she described the assailant’s

appearance. She made the first statement to an officer at the scene,

who testified at trial that Redding described the suspect as a “black

man” with a tear-drop tattoo under his right eye. The second

statement was to another officer (also at the scene), who testified

that Redding described the assailant as having “large tattoos” and

that she made a “hand gesture down her face.” The third statement

was made to a detective at the police station, in which Redding

described the assailant as “dark-skinned” with a “tear-drops” tattoo

under his right eye.5

Newton argues that his trial lawyer should have presented

evidence of Redding’s statement to the detective because, he says,

that statement is inconsistent with other evidence and has

exculpatory value. Specifically, Newton asserts, Redding’s

description of the suspect as “dark-skinned” is inconsistent with

5 The recording of Redding’s statement to the detective is not in the record, but the parties do not dispute the relevant contents of that statement. evidence that Newton was light-skinned. And, he says, Redding’s

statement to the detective that the suspect had a “tear-drops” tattoo

is inconsistent with her statement at the crime scene that the

suspect had “large tattoos” on his face. We disagree with Newton’s

assessment of this evidence.

Redding’s statement to the detective strikes us as more

incriminating than exculpatory. She described the suspect as having

a “tear-drops” tattoo, which was his main identifying feature. This

description does not imply that he had only one small tattoo on his

face, so it is consistent with other descriptions of the suspect. And,

even if Redding’s additional description of the suspect as “dark-

skinned” actually was inconsistent with other descriptions, the

incriminating nature of her statement that the suspect had a “tear-

drops” tattoo likely outweighed any exculpatory value of the “dark-

skinned” description. Newton’s trial lawyer acted reasonably when

he attempted to exclude Redding’s incriminating statement to the detective, rather than seeking the admission of that statement.6

Furthermore, given the non-exculpatory nature of Redding’s

statement, Newton has failed to show Strickland prejudice — that if

the statement had been admitted into evidence, there is a

reasonable probability that the outcome of the trial would have been

different. See Strickland, 466 U.S. at 694 (III) (B). Accordingly,

Newton has failed to establish ineffective assistance of counsel, and

we affirm.

Judgment affirmed. All the Justices concur.

DECIDED JUNE 1, 2020. Murder. Bibb Superior Court. Before Judge Simms. David J. Walker, for appellant. K. David Cooke, Jr., District Attorney, Dorothy V. Hull, Neil A. Halvorson, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Katherine D. Emerson, Assistant Attorney General, for appellee.

6 Newton does not suggest that his lawyer could have introduced only

one part of Redding’s statement to the detective, while having the other part excluded. See generally Allaben v. State, 299 Ga. 253, 256 (2) (787 SE2d 711) (2016) (pursuant to the “rule of completeness,” if “part of a conversation is introduced, all that is said in the same conversation which is relevant to the issue should be admitted” (citation and punctuation omitted)).