303 Ga. 810 FINAL COPY
S18A0426. PALMER v. THE STATE.
GRANT, Justice.
Appellant Qutravius Palmer and his co-defendant Zion Wainwright
were convicted of murder and other crimes in connection with the December
2013 shooting death of Xavier Arnold. On appeal, Palmer argues that the
trial court erred by failing to order an unprompted evaluation of his
competency to stand trial and by denying his motion to sever the co-
defendants’ trials. He also asserts that his trial counsel provided ineffective
assistance. Finding no error, we affirm.1 1
The murder was committed on December 26, 2013. On March 20, 2014, Palmer and Wainwright were indicted by a DeKalb County grand jury for malice murder, felony murder predicated on criminal attempt to commit armed robbery, felony murder predicated on aggravated assault, criminal attempt to commit armed robbery, two counts of armed robbery, three counts of aggravated assault, and three counts of possession of a firearm during the commission of a felony. At the conclusion of a joint trial held from May 11-19, 2015, a jury found Palmer not guilty of malice murder, but guilty of all remaining counts; Wainwright was found guilty of all counts. The trial court sentenced Palmer to three consecutive life sentences for felony murder and both armed robbery counts, twenty years concurrent for aggravated assault, and five years each, running consecutively, for the firearm counts; the remaining counts were merged for sentencing. Palmer filed a timely motion for new trial on May 27, 2015, which was subsequently amended twice through new counsel. Following hearings on the motion, it was denied as amended on July 26, 2017. Palmer filed his notice I.
Viewed in the light most favorable to the jury’s verdict, the evidence at
trial showed that on December 26, 2013, Xavier Arnold and his girlfriend
Xenia Aimes, both art students, decided to drive to the Kirkwood
neighborhood of Atlanta to take pictures of graffiti near a bike path. They
picked up their friend Ibrahim Sanusi on the way, and arrived at the site in
Kirkwood around 4:45 p.m.
After the friends parked and began walking down the bike path, they
noticed that two young men had begun to follow them, and stepped to the
side of the path to let the men pass. Initially, the two men passed by, but
when the group of friends tried to turn around and walk back toward their
car, they were approached by Palmer’s co-defendant Zion Wainwright, who
was just 14 years old at the time. Wainwright rushed toward the friends and
yelled in Arnold’s face “What’s up? Why are you acting so hard?” while
Palmer stood behind him. Arnold replied that the group of friends was
leaving and asked for Wainwright to “chill,” but the confrontation continued.
Wainwright pulled out a gun and pointed it at Arnold while Palmer grabbed
Arnold under the arms, immobilizing him. Arnold fought back, and he and
of appeal on August 18, 2017. The appeal was docketed to the term of this Court beginning in December 2017 and was orally argued on March 5, 2018. 2 Palmer fell to the ground where the two wrestled as Arnold tried to escape. In
the meantime, Wainwright pointed the gun at Aimes and Sanusi and told
Sanusi to empty his pockets, which he did. Wainwright then shot Sanusi in
the leg and pointed the gun at Arnold. Aimes ran in front of the gun,
screaming, while Wainwright repeatedly yelled at her to move. After
Wainwright pushed Aimes out of the way, Sanusi heard Palmer instruct
Wainwright to “shoot him.”2 Wainwright complied, and shot Arnold in the
back of the head as he began to stand up. Palmer then snatched Aimes’s
phone away from her, and the two men ran off together in the same direction.
Neighbors who heard gunshots called 911. One neighbor actually saw the
encounter from her porch and described it to police. Following the calls,
Arnold was taken to Grady Hospital by ambulance but died shortly after his
arrival.
During their investigation, the police learned that Aimes was not
certain when asked to identify Palmer because he was wearing a hood
throughout the incident,3 but it appeared to her that the two men were
2 Sanusi survived the gunshot wound to his leg but died before trial in an unrelated drowning accident. His statements were introduced through multiple close friends under a hearsay exception. 3 Aimes picked Wainwright out of a photographic lineup, but was unable to do the same for Palmer. 3 working together as a “unit,” with the older one in charge. A woman who
was familiar with both defendants told law enforcement that she saw Palmer
and Wainwright together near the bike path running from the direction of the
crime scene shortly after the murder. She said that she heard Palmer ask
Wainwright if Wainwright shot the victim, and Wainwright reply that he shot
the victim because Palmer told him to. 4 She also identified Palmer from a
photographic lineup as the person she saw running from the murder scene
with Wainwright.
A few days after the murder, Palmer showed up at his neighbor’s
apartment in the morning before she left for work, repeatedly banging on the
door until she answered. Palmer appeared frantic and asked to use the phone.
He did so, and then looked up a news article about the murder online. He
confessed to the neighbor that he was running from the police, that he had
been walking with Wainwright (whom he referred to as his cousin) on the
day of the murder, and that the two of them were involved in the murder.
Phone records confirmed that Palmer and Wainwright’s cell phones
were in the area of the murder at the time that it occurred, and that there was
4 At trial, this witness recanted, testifying that Palmer’s uncle threatened her to make these statements to police in order to inculpate Wainwright as the gunman because the police “only care[d] about who was shooting.”
4 a phone call between the two shortly after the murder. Palmer, however,
terminated his phone line the next day.
Although Palmer has not challenged the sufficiency of the evidence
supporting his convictions, we have independently examined the record
according to our usual practice in murder cases, and we conclude that the
evidence admitted at trial was sufficient to authorize a rational trier of fact to
find beyond a reasonable doubt that Palmer was guilty of the crimes of which
he was convicted. See Jackson v. Virginia, 443 U. S. 307, 318-319 (99 SCt
2781, 61 LE2d 560) (1979).
II.
Palmer contends that the trial court erred in going forward with his trial
because doubts existed regarding his competency to stand trial. We disagree.
On July 18, 2014, about ten months prior to trial, Palmer filed a plea of
mental incompetency to stand trial and a motion for psychiatric evaluation.
Palmer’s motion noted that he had been assaulted in jail and had become
increasingly withdrawn and unwilling to communicate with counsel, and that
he had made statements to counsel regarding his belief that somebody was
“switching his spirit.” The trial court ordered a mental evaluation, and
5 Palmer was evaluated by a psychologist with the Georgia Department of
Behavioral Health and Developmental Disabilities.
The evaluating psychologist was not convinced. She found that
Palmer’s “description of seeing things and hearing things during this
evaluation was not consistent with descriptions or symptoms of a true
psychotic disorder,” and that “Palmer exhibited no symptoms of mental
illness during this evaluation.” The psychologist identified “no symptoms of
a psychotic disorder or mental condition that negatively influenced his
cognition or ability to relate to me during this evaluation,” and concluded that
there was “no reason he should not be able to work with his attorney or
meaningfully participate in his defense.” The psychologist ultimately
advised that Palmer was competent to stand trial because he “was able to
demonstrate functional capacity with respect to the legal proceedings[,] . . .
understood the nature and object of the proceedings against him, [and] could
discuss his charge and demonstrate an understanding of general courtroom
procedure.”
The evaluation was performed and submitted during September of
2014, and the court found Palmer competent to stand trial based on the
psychologist’s findings. On appeal, however, Palmer argues that the court
6 should have ordered a new competency evaluation, sua sponte, based on his
subsequent behavior during trial. Palmer points to several instances when he
tried to communicate directly with the trial court or appeared confused about
the trial process. But in denying Palmer’s motion for new trial on this
ground, the court found that in addition to the pre-trial evaluation
determining that Palmer was competent to stand trial, “during the trial neither
Defendant’s behavior nor his demeanor was such to raise a bona fide doubt
regarding his competence. There was no evidence that Defendant did not
understand the proceedings, appreciate their significance, or rationally aid his
attorney in his defense.”
We see no error. “A trial court has the sua sponte duty to inquire into a
defendant’s competency only when information ‘becomes known to it, prior
to or at the time of the trial, sufficient to raise a bona fide doubt regarding the
defendant’s competence.’” Biggs v. State, 281 Ga. 627, 629-630 (642 SE2d
74) (2007) (quoting Traylor v. State, 280 Ga. 400, 404 (627 SE2d 594)
(2006)). The need for a competency evaluation depends on
whether the trial court received information which, objectively
considered, should reasonably have raised a doubt about the
defendant’s competency and alerted the trial court to the
7 possibility that the defendant could neither understand the
proceedings, appreciate their significance, nor rationally aid his
attorney in his defense.
Traylor, 280 Ga. at 404. In analyzing this issue, “the appellate court must
focus on any evidence of the defendant’s irrational behavior, the defendant’s
demeanor at trial, and any prior medical opinion regarding the defendant’s
competence to stand trial.” Id.
In Traylor, we found that the defendant’s inconsistent responses to the
trial court regarding his decision to testify, as well as the court’s directions to
the defendant to consult with his attorney, failed to show the type of
irrational behavior or unusual demeanor that would require the trial court to
make further inquiry regarding competency. Id. at 404-405. Likewise,
neither Palmer’s (arguably confused) statements to the trial court, nor the fact
that the court had to instruct him to communicate through his attorney,
constituted irrational behavior or unusual demeanor sufficient to require the
court to make further inquiry regarding his competency. Indeed, the record
shows that although Palmer had some apparent confusion about his decision
to testify, both the trial court and his attorney provided him with further
8 explanation on the issue. The record also shows that Palmer himself affirmed
that he understood his rights. See id.
In Biggs, we found that trial counsel’s testimony that the defendant
showed no signs of incompetency during trial, understood the proceedings
against him, assisted with the development and presentation of his case, and
coherently articulated his defense supported the trial court’s denial of the
defendant’s claim of incompetency to stand trial. 281 Ga. at 631. So too
here. At the motion for new trial hearing, Palmer’s trial counsel testified that
Palmer communicated with him throughout the case, that they had
meaningful conversations about the case in which Palmer seemed to
understand what counsel told him, that Palmer understood the trial court’s
inquiries regarding his decision whether to testify, that Palmer was able to
assist counsel in his defense, and that counsel was satisfied that Palmer was
competent at the time of trial. This testimony is further indication that no
circumstances existed that would have raised a bona fide doubt with the trial
court regarding Palmer’s competence.
Also, as in Traylor, Palmer provided no “medical opinion regarding his
competence which would have caused the trial court to make further inquiry
about it.” Traylor, 280 Ga. at 405. Even at this stage, Palmer has provided
9 no additional evidence establishing his alleged incompetency to stand trial.
Because Palmer has failed to show the type of behavior or demeanor at trial
that would reasonably raise a bona fide question about his competence, and
because the only medical opinion in evidence indicates that Palmer was
competent to stand trial, Palmer’s competency argument fails.
III.
Palmer next contends that the trial court erred in denying his motion to
sever his trial from Wainwright’s. But we see no error.
When two or more defendants are jointly indicted for non-capital
offenses, “such defendants may be tried jointly or separately in the discretion
of the trial court.” OCGA § 17-8-4 (a). The trial court’s discretion to grant or
deny a motion for severance is “broad.” Herbert v. State, 288 Ga. 843, 845
(708 SE2d 260) (2011). “In ruling on a severance motion, the court should
consider: (1) the likelihood of confusion of the evidence and law; (2) the
possibility that evidence against one defendant may be considered against the
other defendant; and (3) the presence or absence of antagonistic defenses.”
Id. “‘[T]he burden is on the defendant requesting the severance to do more
than raise the possibility that a separate trial would give him a better chance
of acquittal. He must make a clear showing that a joint trial would lead to
10 prejudice and a consequent denial of due process.’” Marquez v. State, 298
Ga. 448, 449 (782 SE2d 648) (2016) (quoting Thomas v. State, 293 Ga. 829,
830-831 (750 SE2d 297) (2013)). And the mere presence of antagonistic
defenses is insufficient to require severance in a non-death penalty case;
instead, the defendant must show that “considering these antagonistic
defenses, a joint trial was so prejudicial as to amount to a denial of his right
to due process.” Id. at 450; Hendrix v. State, 284 Ga. 420, 422 (667 SE2d
597) (2008).
Palmer has made no such showing. In this case, the law applicable to
the two defendants was substantially the same, all of the evidence presented
at trial was admissible against both defendants, and there was minimal risk of
the jury being confused or of evidence being improperly considered against
either defendant. See Herbert, 288 Ga. at 845; Ballard v. State, 297 Ga. 248,
255 (773 SE2d 254) (2015). It is true that Palmer’s defense was that he
simply was not the person who committed the crimes with Wainwright, while
Wainwright’s counsel argued that Palmer pressured Wainwright into robbing
the victims and that Wainwright shot Arnold in defense of Palmer during the
ensuing physical altercation. But as we have already pointed out, the
presence of these antagonistic defenses alone did not require severance. In
11 case after case where co-defendants acted in concert, we have found that
severance was not required simply because the defendant argued about
identity or the co-defendant blamed—or even put forth evidence against—the
defendant. See, e.g., Barge v. State, 294 Ga. 567, 571 (755 SE2d 166) (2014)
(co-defendant’s introduction of video showing defendant refer to himself as
“Little Yo” after defendant denied that was his nickname did not require
severance where other evidence confirmed defendant’s identity); Metz v.
State, 284 Ga. 614, 616 (669 SE2d 121) (2008) (co-defendants blaming each
other for stabbing victim did not require severance), overruled on other
grounds by State v. Kelly, 290 Ga. 29 (718 SE2d 232) (2011); Loren v. State,
268 Ga. 792, 795 (493 SE2d 175) (1997) (co-defendants blaming each other
for fatally injuring victim, and co-defendant’s admission of evidence
implicating defendant did not require severance).
Palmer has not shown any denial of his due process rights, much less
one that could have been avoided by severance of the co-defendants’ trial,
and there was strong evidence at trial showing that Palmer and Wainwright
acted together in the robbery and in killing the victim. Palmer has not
shown, therefore, that the trial court abused its discretion in denying his
motion to sever or that he was prejudiced by that denial.
12 IV.
Palmer also contends that his trial counsel was ineffective, first for
failing to adequately investigate Palmer’s competency, and second for failing
to object to a witness’s testimony or to the State’s asserted bolstering of her
testimony. He is incorrect.
To prevail on an ineffective assistance of counsel claim, a defendant
must show that his counsel’s performance was professionally deficient and
that such deficient performance resulted in prejudice to the defendant.
Strickland v. Washington, 466 U. S. 668, 687-695 (104 SCt 2052, 80 LE2d
674) (1984); Wesley v. State, 286 Ga. 355, 356 (689 SE2d 280) (2010). To
show deficient performance, Palmer must demonstrate that his attorney
“performed at trial in an objectively unreasonable way considering all the
circumstances and in the light of prevailing professional norms.” Romer v.
State, 293 Ga. 339, 344 (745 SE2d 637) (2013); see also Strickland, 466 U.
S. at 687-688. To show prejudice, Palmer must establish a reasonable
probability that, in the absence of counsel’s deficient performance, the result
of the trial would have been different. Strickland, 466 U. S. at 694. If either
Strickland prong is not met, this Court need not examine the other prong.
See Hendrix v. State, 298 Ga. 60, 61-62 (779 SE2d 322) (2015).
13 First, regarding Palmer’s contention that his trial counsel was
ineffective for failing to adequately investigate Palmer’s competency, it was
Palmer’s own counsel who filed his plea of mental incompetency to stand
trial and motion for psychiatric evaluation. And although Palmer’s trial
counsel was “a little bit surprised” that the psychologist determined that
Palmer was competent, he also testified that Palmer’s condition actually
continued to improve, and that he “was satisfied, at least at the time when
[they] went to trial, that he was competent to stand trial.” Moreover, Palmer
has still presented no evidence of any medical opinion that he was
incompetent to stand trial. Under these circumstances Palmer cannot show
deficiency, so his claim fails.
Regarding Palmer’s second contention, that his trial counsel was
ineffective for failing to object to a witness’s testimony that she received
threats from Palmer’s family or to the State’s alleged improper bolstering of
that testimony, we also see no error. The testimony was plainly permitted
and was not improperly bolstered.
“[E]vidence of a defendant’s attempt to influence or intimidate a
witness can serve as circumstantial evidence of guilt.” Kell v. State, 280 Ga.
669, 671 (631 SE2d 679) (2006). Likewise, “an attempt by a third person to
14 influence a witness not to testify or to testify falsely” is also admissible as
circumstantial evidence of guilt “where it is established that the attempt was
made with the authorization of the accused.” Id. (citation and punctuation
omitted). Moreover, even when evidence of a threat to a witness is not
connected to the defendant, the trial court still has discretion to admit
evidence of the threat if it is “relevant to explain the witness’s reluctant
conduct on the witness stand.” Foster v. State, 294 Ga. 383, 385 (754 SE2d
33) (2014) (citation and punctuation omitted).
Here, the witness’s testimony included statements that Palmer’s uncle
had threatened her.5 Specifically, she testified that Palmer’s uncle pressured
her to tell police that she had overheard Wainwright telling Palmer that he
shot the victim at Palmer’s direction “because they only care about who was
shooting.” The uncle also encouraged her not to come to court to testify at
trial and said that if Palmer “go[es] down, me and my family will, too.” The
witness testified that to her “knowledge and understanding,” Palmer’s uncle
“was working on behalf of [Palmer],” likely because Palmer had told his
uncle that she was the only person who knew about his involvement in the
5 There was also equivocal testimony that the uncle’s son may have made a veiled threat. 15 killing. This testimony plainly connected the threats to Palmer as the person
who authorized them.
Moreover, when this witness was first called to testify, she said that she
did not want to testify, and the trial court found her in contempt for refusing
to do so. She was then brought back to testify the following day, at which
point she continued to refuse to answer the prosecutor’s questions until the
court permitted the State to cross-examine her as a hostile witness. At a
minimum, then, it was within the trial court’s discretion to admit the
testimony regarding the threats as relevant to explain the witness’s reluctance
to testify. Accordingly, Palmer’s counsel was not constitutionally deficient
for failing to object to the threat testimony. See Moss v. State, 298 Ga. 613,
617 (783 SE2d 652) (2016) (“[T]he failure to make a meritless motion or
objection does not provide a basis upon which to find ineffective assistance
of counsel.”) (citation and punctuation omitted).
Regarding Palmer’s “bolstering” contention, he complains that the
prosecutor asked the same witness on redirect examination whether the State
“advise[d] you that we were concerned for your safety and if we could help
you in some way,” to which she replied, “Yes.” Palmer argues that this was
16 improper bolstering and that his trial counsel was ineffective for failing to
object to it. We disagree.
To begin, the trial court had already permitted the State to question this
witness as a hostile witness based on her unwillingness to testify. And the
challenged testimony was elicited in response to the defense’s attack against
the witness’s truthfulness about the threats on cross-examination. The State
was permitted to rehabilitate a witness after her credibility had been attacked
with relevant testimony to explain her recantation. See Brown v. State, 302
Ga. 454, 459-461 (807 SE2d 369) (2017); Fox v. State, 289 Ga. 34, 38 (709
SE2d 202) (2011). An objection for improper bolstering, therefore, would
have been meritless, and Palmer’s trial counsel was not deficient in this
respect. See Moss, 298 Ga. at 617. In addition, Palmer has not shown how
this alleged deficiency prejudiced him given the strong evidence against him.
Accordingly, Palmer’s claims of ineffective assistance of trial counsel
fail.
Judgment affirmed. All the Justices concur.
17 Decided May 21, 2018 — Reconsideration denied June 18, 2018.
Murder. DeKalb Superior Court. Before Judge Hunter.
Rachel M. Kaufman, for appellant.
Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Arthur C.
Walton, Assistant District Attorneys; Christopher M. Carr, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith,
Senior Assistant Attorney General, Elizabeth H. Brock, Assistant Attorney
General, for appellee.