312 Ga. 268 FINAL COPY
S21A0877. VIVIAN v. THE STATE.
MCMILLIAN, Justice.
Nathaniel Vivian appeals his convictions for felony murder and
related crimes in connection with the shooting death of Daniel
Zeitz.1 Vivian contends on appeal that the trial court erred in failing
1 Zeitz was killed on September 12, 2014, and on September 22, 2014, a
Fulton County grand jury indicted Vivian and Kayla Dixon in connection with Zeitz’s death, charging them jointly with malice murder and possession of a firearm during the commission of a felony. Vivian and Dixon were re-indicted on December 5, 2014, and charged jointly with malice murder (Count 1), felony murder (Count 2, predicated on armed robbery, and Count 3, predicated on aggravated assault), armed robbery (Count 4), aggravated assault (Count 5), possession of a firearm during the commission of a felony (Count 6), and cruelty to children in the third degree (Count 7). Dixon entered a guilty plea to reduced charges prior to trial, and her convictions and sentences are not part of this appeal. Vivian was tried before a jury from August 15 to 17, 2016, and convicted of all counts except malice murder. The trial court sentenced Vivian to serve life in prison on each count of felony murder, ten years in prison for armed robbery, and twelve months in prison for cruelty to children, all to run concurrently with one another. The trial court also sentenced Vivian to five years on the firearm-possession charge, to run consecutively to Count 2, but suspended that sentence, and merged the aggravated assault conviction into the felony murder conviction under Count 2. As discussed further in Division 3, because the trial court erred in sentencing Vivian on both felony murder convictions, we are vacating his convictions and remanding the case to the trial court for resentencing. to advise him of his right to represent himself at trial and asserts
that he received ineffective assistance of counsel based on his trial
counsel’s failure to (1) object to the introduction of his and his co-
defendant’s cell phones as exhibits at trial; (2) object to an alleged
non-unanimous verdict on the charge of possession of a firearm
during the commission of a felony; (3) challenge the grand and petit
jury composition; and (4) request a jury instruction on mere
association. We conclude that there is no merit to these arguments,
but because the trial court erred in sentencing Vivian on two
separate counts of felony murder, we vacate those convictions and
remand the case to the trial court for resentencing.
The evidence at trial showed that on the afternoon of
September 12, 2014, Vivian texted Zeitz to inquire about a
PlayStation 4 gaming console that Zeitz had listed for sale on
Vivian filed a timely motion for new trial on August 18, 2016, and amended that motion through new counsel on January 4, 2019, and June 13, 2019. The trial court denied the motion for new trial as amended on September 3, 2019. Vivian filed a timely notice of appeal, and his appeal was docketed to the April 2021 term of this Court and submitted for a decision on the briefs.
2 Craigslist. The two men arranged to meet that night at Zeitz’s
apartment in Sandy Springs. At around the same time, Kayla Dixon,
who was Vivian’s girlfriend, texted Vivian, “U wanna rob him,” and
Vivian replied, “Yea.” Over the next two hours, Vivian and Dixon
texted each other to discuss how they would rob Zeitz, including who
would hold the gun they planned to bring with them, with Vivian
suggesting that Dixon hold the gun and Dixon suggesting that
Vivian point the gun at Zeitz.
Around 9:12 that night, Vivian texted Zeitz to say he was
outside Zeitz’s apartment, and Zeitz replied by text to say that he
was “[c]oming out now.” Vivian later told the police that when Zeitz
came to the car, Vivian took the gaming console from him. Zeitz then
grabbed Vivian’s steering wheel, and Dixon shot the gun, injuring
Vivian’s hand. Vivian and Dixon left the scene and drove to
Northside Hospital to get medical treatment for Vivian.
Around 9:30 p.m., Sandy Springs Police officers responded to a
“person-down” call and discovered Zeitz lying dead in the parking
lot of his apartment complex. Meanwhile, a Brookhaven Police
3 officer responded to a report of a patient with a gunshot wound to
the hand at Northside Hospital. The Brookhaven officer identified
the patient as Vivian and asked him what had happened. Vivian
said that he had been shot at an apartment complex in Brookhaven
(the “Brookhaven apartment”). Vivian told the officer that he was
not sure who had shot him, that Dixon had driven him to the
hospital, and that she was outside in the hospital parking lot.
The officer arranged to meet Dixon in the parking lot. Dixon
arrived for the meeting in Vivian’s car and appeared to be very
distressed as she exited the car with her child. The officer observed
a large amount of blood inside the car and asked Dixon what
happened. Dixon replied that Vivian had been shot in the hand in
the Brookhaven apartment’s parking lot. Dixon said that she had
taken a gun out of the glovebox, dropped it, and then put it back,
and that she might have shot the gun but was not sure. She told the
Brookhaven officer that the gun was in the car’s glovebox. The officer
then returned to the hospital and obtained Vivian’s written
permission to search the car. During that search, the police
4 recovered a gun from the glovebox and a PlayStation gaming console
from the trunk.
When a Brookhaven Police detective spoke with Vivian inside
the hospital about his injuries, Vivian first told the detective that he
and Dixon had gone to the Brookhaven apartment to pick up some
of Dixon’s friends, and that while speaking with some men there,
Vivian heard a gunshot, jumped back in his car, and only later
realized he had been shot. However, Vivian eventually admitted to
taking a gaming console and said that Dixon had shot him
accidentally as they were trying to leave the scene. After Vivian
revealed that the shooting occurred at Zeitz’s apartment in Sandy
Springs, the detective contacted the Sandy Springs police and
transferred the case to them.
Vivian and Dixon were subsequently taken into custody and
transported to the Sandy Springs Police Headquarters. During an
interview there with a Sandy Springs Police detective, Vivian
admitted that he and Dixon planned to steal the PlayStation. It was
during this interview that Vivian said that when he took the
5 PlayStation console, Zeitz grabbed the steering wheel of Vivian’s
car, and Dixon fired the gun. Police recovered Vivian’s cell phone
from his pocket and discovered messages between Vivian and Zeitz
relating to the sale of the PlayStation on Craigslist. In addition to
the text messages, an analysis of Vivian’s phone revealed a “fake
number texting app”2 and a September 5, 2014 Internet search for
“how to rob someone.”
The medical examiner testified that Zeitz suffered a gunshot
wound to the right side of his neck, resulting in his death, and the
gun found in Vivian’s car was later matched to a shell casing found
at the scene of Zeitz’s shooting.
1. Vivian first asserts that the trial court erred by failing to
conduct a hearing on his request for new counsel and advise him
that he had the right to represent himself at trial if he was
dissatisfied with his appointed counsel.
Prior to jury selection on the scheduled trial date, Vivian
2 The evidence showed that such an app generates a fake number that
appears on a text recipient’s screen in place of a phone’s assigned number, and Vivian’s texts appeared under a fake number on Zeitz’s phone. 6 requested a hearing for new counsel. When the trial judge asked
Vivian to state his complaint with his appointed trial counsel, Vivian
replied, “Well, for one I just found out about this trial on Wednesday
[the day before]. That’s not enough time to prepare for a trial.” The
judge responded it was trial counsel, not Vivian, who had to prepare
for trial. Vivian then said that he would have liked for his family to
have been there “and stuff like that.” After the trial judge explained
that the first day would primarily involve selecting a jury and that
Vivian’s family was welcome to come for the rest of the trial, Vivian
replied, “All right.” And when the trial judge asked Vivian if he had
any other complaints, Vivian stated, “That’s it for right now.”
The trial judge then told Vivian that he was always welcome to
hire a lawyer, but the trial had been specially set, the jury was
waiting, and they were prepared to go forward. In response, Vivian
asked, “What are my options?” The trial judge replied that Vivian
had the option to proceed to trial, where he was facing an overall life
sentence plus five years, or to seek to negotiate a guilty plea before
the trial began. However, the trial court indicated that the trial
7 would begin shortly because it had been specially set, jurors were
present, and the proceedings were already running late. Vivian
responded: “Okay. We can go ahead.”
Vivian argues, citing Nelson v. State, 274 S2d 256 (Fla. Dist.
Ct. App. 1973), that the trial court erred in failing to inform him that
he also had the option of representing himself at trial. According to
Vivian, following the reasoning set forth in Nelson, the State of
Florida now mandates that a defendant receive a hearing upon
request to determine whether he is being adequately represented.
He asserts that defendants in Georgia likewise are entitled to a
hearing to determine whether they can discharge appointed counsel,
even if that means a defendant must represent himself. Therefore,
he contends that after determining that Vivian was being
adequately represented, the trial judge should have informed Vivian
that he had a right to represent himself. We disagree.
The right of a criminal defendant to self-representation is
guaranteed by the Sixth Amendment to the United States
8 Constitution.3 See Faretta v. California, 422 U.S. 806, 819 (III) (A)
(95 SCt 2525, 45 LE2d 562) (1975); Burney v. State, 309 Ga. 273, 279
(2) (845 SE2d 625) (2020); Wiggins v. State, 298 Ga. 366, 368 (2) (782
SE2d 31) (2016).
To avail himself of this right, a defendant must clearly and unequivocally assert his desire to represent himself. If an unequivocal invocation is made, it must be followed by a hearing to ensure that the defendant knowingly and intelligently waives the traditional benefits associated with the right to counsel and understands the disadvantages of self-representation so that the record will establish that he knows what he is doing and his choice is made with eyes open.
Burney, 309 Ga. at 279-80 (2) (citation omitted). But in the absence
of a clear and unequivocal expression of a desire for self-
representation, the trial court is not required to hold a hearing. See
id.; Oliver v. State, 305 Ga. 678, 680 (2) (827 SE2d 639) (2019).
Here, Vivian made no assertion of a desire to represent himself
3 Vivian raises this claim solely under the Florida court’s interpretation
of the Sixth Amendment in Nelson, and we therefore consider Vivian’s argument in the context of the U.S. Constitution. However, we note that the Georgia Constitution also provides a defendant the right to self-representation. See Ga. Const. of 1983, Art. I, Sec. I, Par. XII (“No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.”). 9 at trial. To the contrary, Vivian asked for a hearing for “new
counsel.” Therefore, the trial court was not required to hold a
hearing to address the issue of self-representation in this case.
Vivian has not identified, nor could we locate, any binding authority
requiring trial courts in this State to inform a defendant sua sponte
of the option to represent himself when he or she merely asks for
new counsel, and we see no reason to adopt Nelson. Accordingly, we
discern no error.
2. Vivian further argues that the trial court erred in failing to
grant his motion for new trial based on his claims of ineffective
assistance of trial counsel. None of his claims has merit.
To prevail on such claims, a defendant must show that his trial
counsel’s performance was deficient and that, but for such deficient
performance, there is a reasonable probability that the result of the
trial would have been different. See Strickland v. Washington, 466
U.S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). To prove
deficient performance, Vivian must establish that his counsel
“performed at trial in an objectively unreasonable way considering
10 all the circumstances and in light of prevailing professional norms,”
Lofton v. State, 309 Ga. 349, 360 (6) (846 SE2d 57) (2020), and in
doing so, he “must overcome the strong presumption that trial
counsel’s conduct falls within the broad range of reasonable
professional conduct.” Kilpatrick v. State, 308 Ga. 194, 201 (7) (839
SE2d 551) (2020) (citation and punctuation omitted). To show a
reasonable probability of a different trial result, as required to
establish the requisite prejudice under Strickland, Vivian must
demonstrate “a probability sufficient to undermine confidence in the
outcome [of his trial].” Strickland, 466 U.S. at 694 (III) (B). If Vivian
fails to establish either prong of the Strickland test, we need not
examine the other. See id. at 687 (III); DeLoach v. State, 308 Ga.
283, 288 (2) (840 SE2d 396) (2020).
(a) Vivian first claims that his trial counsel rendered ineffective
assistance by failing to object to the admission of his and Dixon’s cell
phones at trial because the only authentication provided for the cell
phones was through hearsay evidence.
The State introduced the two cell phones into evidence through
11 the testimony of a Sandy Springs Police investigator. The prosecutor
asked the investigator how he recognized the two exhibits
containing the cell phones, and the investigator replied that he
recognized them through handwritten labels noting the case number
and descriptions reading “Dixon Cell Phone” and “Vivian Cell
Phone.” Vivian asserts that the handwritten labels were hearsay
and that the investigator testified that the lead investigator on the
case gave the investigator the phones while the investigator was
preparing warrant applications to search the devices. Therefore,
Vivian asserts that the investigator lacked any independent,
personal knowledge regarding the cell phones, and his trial counsel
should have objected to the investigator’s testimony about what the
lead investigator told him.
At the hearing on the motion for new trial, Vivian’s appellate
attorney asked trial counsel whether she objected to the
introduction of the cell phones, and she replied that she did not
believe she had. But trial counsel was never asked to explain why
she did not object, and Vivian offered no other evidence to show that
12 the lack of an objection was not a reasonable strategic decision. “In
the absence of evidence to the contrary, counsel’s decisions are
presumed to be strategic and thus insufficient to support an
ineffective assistance of counsel claim” if not patently unreasonable.
Lanier v. State, 310 Ga. 520, 526 (3) (b) (852 SE2d 509) (2020)
(citation and punctuation omitted). See also Mitchell v. State, 290
Ga. 490, 492 (4) (a) (722 SE2d 705) (2012) (where appellant fails to
make a showing to overcome this presumption, “he has failed to
show deficient performance” (citation omitted)).
Moreover, pretermitting whether the cell phones were properly
authenticated, Vivian’s claim of ineffective assistance fails because
he does not argue, must less demonstrate, that the State could not
have provided additional foundational support for the admission of
the cell phones if his counsel had objected. And as this Court
previously held, “refraining from objecting to foundational matters
that can be readily cured is not an unreasonable strategy.” Hayes v.
State, 298 Ga. 98, 105 (2) (c) (779 SE2d 609) (2015). See also Wallace
v. State, 296 Ga. 388, 393 (4) (d) (768 SE2d 480) (2015) (claim of
13 ineffective assistance of counsel based on failure to object for lack of
foundation fails where defendant “made no showing that a proper
foundation could not have been laid if any additional foundation was
necessary”). Therefore, Vivian has failed to establish ineffective
assistance of counsel on this ground.
(b) Vivian next asserts that his trial counsel was ineffective in
failing to file a demurrer to Count 6, charging possession of a firearm
during the commission of a crime, and to object to the trial court’s
instruction to the jury regarding that charge, which Vivian contends
allowed the jury to return a non-unanimous verdict.
However, Vivian failed to raise any claims of ineffective
assistance of counsel on these grounds in his motion for new trial,
as amended, or at the hearing on that motion, which presented his
first opportunity to do so, and the trial court did not rule on these
grounds; therefore, these issues are not preserved for appellate
review by this Court. See Lopez v. State, 310 Ga. 529, 535 (3) (e) (852
SE2d 547) (2020) (claim of ineffective assistance of counsel not
preserved for appeal where it was not raised at defendant’s first
14 opportunity); Elkins v. State, 306 Ga. 351, 361 (4) (a) (830 SE2d 217)
(2019) (failure to raise claim of ineffective assistance of trial counsel
“at the earliest practicable moment” waives the issue for appellate
review).
(c) Vivian further contends that his trial counsel was deficient
in failing to challenge the composition of his grand and petit juries,
because the juries were selected from a list that this Court
determined in Ricks v. State, 301 Ga. 171 (800 SE2d 307) (2017),
violated the Court’s Jury Composition Rule (the “Rule”).4 Vivian
notes that he was indicted by the grand jury on December 5, 2014,
and Ricks determined that Fulton County violated the Rule for a
period of time including that date. See 301 Ga. at 189 (5) (a), 191-92
(5) (c). Vivian also asserts that the trial jury was selected from a
defective list because he was tried in 2016 and the jury list was not
4 This Court adopted the Rule to effectuate the Jury Composition Reform
Act of 2011, Ga. L. 2011, p. 59. See Ricks, 301 Ga. at 173 (1). The full text of the current version of the Rule can be found on this Court’s website. See https://www.gasupreme.us/wp- content/uploads/2019/04/JURY_COMPOSITION_RULE_2019-04-11.pdf.
15 updated until after the Ricks decision in 2017.
But as Vivian notes, our decision in Ricks was issued in 2017,
over seventeen months after Vivian was indicted and approximately
nine months after he was tried and convicted.5 It is well settled that
“[t]he standard for effectiveness of counsel does not require a lawyer
to anticipate changes in the law or pursue novel theories of defense.”
Brooks v. State, 309 Ga. 630, 637 (2) (847 SE2d 555) (2020) (citation
and punctuation omitted). See also Esprit v. State, 305 Ga. 429, 438
(2) (c) (826 SE2d 7) (2019) (“A criminal defense attorney does not
perform deficiently when he fails to advance a legal theory that
would require an extension of existing precedents and the adoption
of an unproven theory of law.” (citation and punctuation omitted)).
Accordingly, this claim of ineffective assistance of counsel lacks
merit.
(d) Vivian also argues that his trial counsel was ineffective in
5 Although Vivian did not ask his trial counsel at the motion hearing why
she chose not to challenge the jury panels, trial counsel testified, in response to questioning by the State, that at the time of Vivian’s trial, which was before Ricks was issued, she had never heard of a successful challenge to jury composition under the Rule. 16 failing to request a jury instruction on “mere association.” Vivian
asserts that if his trial counsel had requested that instruction, the
jury would have been informed that it was not authorized to find a
person guilty by mere association with another person who
committed the crime unless the evidence shows beyond a reasonable
doubt that the associated person actually perpetrated or
participated in the crime. See Suggested Pattern Jury Instructions,
Vol. II: Criminal Cases, § 1.43.31. Pretermitting whether Vivian’s
counsel performed deficiently in failing to ask for such a charge,
however, Vivian’s claim of ineffective assistance fails because he
cannot show the requisite prejudice under Strickland.
The trial court charged the jury on the presumption of
innocence, the State’s burden to prove each element of the crimes
charged beyond a reasonable doubt, party to a crime, and the lack of
a presumption of criminal intent. Those instructions included that
“[a] person is a party to a crime only if that person directly commits
a crime or intentionally helps in the commission of the crime or
intentionally advises, encourages, counsels or procures another to
17 commit the crime” and that “[f]acts and circumstances that merely
place upon the defendant a grave suspicion of the crimes charged or
that merely raise a speculation or a conjecture of the defendant’s
guilt are not sufficient to authorize a conviction of the defendant.”
We conclude that the trial court’s charge, when viewed as a whole,
was an accurate statement of the applicable law, and the “mere
association” charge would have added little, if any, to these
instructions. Moreover, the evidence that Vivian was a knowing
participant in the armed robbery, including his texts with Dixon
planning the crimes, was strong. Under these circumstances, Vivian
has failed to show a reasonable probability that his trial would have
ended more favorably for him had trial counsel requested a charge
on “mere association.” See Hood v. State, 303 Ga. 420, 427 (2) (b)
(811 SE2d 392) (2018) (where the trial court’s charge adequately
instructed the jury on the legal principles involved in the omitted
charge, appellant failed to demonstrate a reasonable probability
that his trial would have ended more favorably had counsel
requested an additional charge); Robinson v. State, 278 Ga. 836, 838
18 (5) (607 SE2d 559) (2005) (trial court was not required to sua sponte
charge the jury on “mere association” where jury instructions were
applicable to issues and evidence at trial, and they substantially
covered the same principles involved in the omitted charge).
Therefore, Vivian cannot establish his claim of ineffective assistance
of counsel on this ground.
3. Finally, we conclude, and the State concedes, that the trial
court erred in sentencing Vivian to a life sentence on each of his two
felony murder convictions when there was only one victim in this
case. See Martin v. State, 308 Ga. 479, 484 (3) (841 SE2d 667) (2020);
Coe v. State, 274 Ga. 265, 266 (2) (553 SE2d 784) (2001). Instead,
one of the two felony murder verdicts was vacated by operation of
law. See McCoy v. State, 303 Ga. 141, 144 (3) (810 SE2d 487) (2018).
“And . . . the decision as to which of the felony murder verdicts
should be deemed vacated — a decision that may affect which other
verdicts merge and thus what other sentences may be imposed — is
left to the discretion of the trial court on remand[.]” Martin, 308 Ga.
at 484 (3) (citation and punctuation omitted). Therefore, we vacate
19 Vivian’s convictions for felony murder and remand the case to the
trial court for resentencing in accordance with this opinion. See id.;
Cowart v. State, 294 Ga. 333, 336 (2) (751 SE2d 399) (2013).
Judgment affirmed in part and vacated in part, and case remanded with direction. All the Justices concur, except Colvin, J., not participating.
Decided August 10, 2021.
Murder. Fulton Superior Court Before Judge Dunaway.
Benjamin A. Davis, Jr., for appellant.
Fani T. Willis, District Attorney, Lyndsey H. Rudder, Marc A.
Mallon, Assistant District Attorneys; Christopher M. Carr, Attorney
General, Patricia B. Attaway Burton, Deputy Attorney General,
Paula K. Smith, Senior Assistant Attorney General, Ashleigh D.
Headrick, Assistant Attorney General, for appellee.