307 Ga. 689 FINAL COPY
S19A1250. WILLIAMS v. THE STATE.
BETHEL, Justice.
Following his conviction for the murder of Barry Bullard, Allen
Deverna Williams appeals, pro se, from the denial of his motion for
a new trial.1 Williams argues numerous errors, including: (1) that
1 The crimes occurred on July 30, 2008. On September 8, 2008, a Tift County grand jury jointly indicted Williams and two other individuals, Jeremy Reynolds and Neddrick Green, as parties to the crime for malice murder. Green and Reynolds were tried together and found guilty. We affirmed Green’s conviction in Green v. State, 302 Ga. 816 (809 SE2d 738) (2018). Williams was tried separately by a jury in February 2011 and found guilty of malice murder. On February 18, 2011, Williams filed pro se motions for new trial, for production of transcripts, for appointment of appellate counsel, and for extension of time to amend or supplement his motion for new trial. Trial counsel also filed a timely motion for new trial on February 24, 2011. Williams was represented by new appellate counsel during the course of the post-trial proceedings, including hearings in November 2015, July 2017, and May 2018. The trial court denied the motion for new trial on May 25, 2018. Appellate counsel filed a timely notice of appeal on June 20, 2018. Williams then filed a pro se motion on July 2, 2018, asking to represent himself on appeal. Pursuant to a hearing on November 8, 2018, the trial court granted Williams’ motion. However, the trial court did not have jurisdiction to permit appellate counsel to withdraw because the case had already been docketed in this Court. See Williams v. State, Case No. S19A0667, dismissed March 4, 2019. We struck the case from our docket and remanded the case to the trial court with direction that the court promptly enter a ruling on the request for self-representation and address Williams’ access to the record. Following a hearing, the trial court entered an order granting Williams’ motion for self-representation on May 1, the evidence was insufficient to sustain his convictions; (2) that he
received ineffective assistance from post-trial counsel; (3) that the
trial court ruled on his motion for a new trial without being
prompted to do so; and (4) that several errors arose from an alleged
“conflict of interest” involving Williams’ former counsel. Finding no
error, we affirm.2
Viewed in the light most favorable to the verdict, the evidence
presented at trial shows the following. On July 30, 2008, Williams
was driving through a neighborhood in Tifton. Two friends of his,
Neddrick Green and Jeremy Reynolds, were also in the car. Ernest
Jackson was standing in a nearby yard when he saw Williams and
his friends drive through the area. Jackson recognized the men and
noticed Williams glaring, so Jackson went to alert Barry Bullard in
a nearby apartment. Williams, Bullard, and the others had been
2019. The trial court also ensured that Williams was provided with a complete copy of the record. This case was re-docketed in this Court to the August 2019 term and was submitted for a decision on the briefs. 2 Williams appears to raise additional claims of error in his reply brief,
but “[a]n appellant who raises an argument for the first time in a reply brief is not entitled to have that argument considered.” City of Atlanta v. Mays, 301 Ga. 367, 372 (3) (801 SE2d 1) (2017). 2 friends, but a dispute between Bullard and Williams had recently
arisen that soured the relationship.
Bullard made his way to the area where Jackson had seen
Williams driving by. Williams backed into a parking space across
the street from where Bullard and Jackson were standing. While
the car was parked, Green got out of the vehicle, retrieved a long
gun from the back seat, and got back into the car. Michael Taylor,
who had been standing with Bullard and Jackson, saw Green
retrieve the weapon and ran to hide behind the nearby apartments.
Williams’ vehicle then sped toward where Bullard and Jackson were
standing, stopped, and Williams and his friends exited the vehicle.
Bullard then repeatedly told Williams and Williams’ friends, “I
ain’t got no beef with y’all.” The men argued and Williams yelled,
“Yeah, n****r, I’m ready to die, I’ve been snorting all night.”
Williams and Green both had guns drawn when Green punched
Bullard in the face. As Williams and Green turned back toward the
car, Reynolds walked up to Bullard and shot him in the face.
Jackson ran away as Bullard fell to the ground.
3 Williams, Green, and Reynolds all tried to flee the scene in
Williams’ vehicle, but Williams crashed into a mailbox and trashcan.
Bullard then got to his feet and shot in the direction of Williams and
the incapacitated vehicle. Williams suffered a gunshot wound to the
leg, but ran from the scene with Reynolds, who said, “I think I got
him.” Bullard ultimately died as a result of his gunshot wound. A
note passed in jail from Williams to Reynolds instructing Reynolds
how to testify in Williams’ case was later intercepted.
1. Williams argues that the evidence was insufficient for a
rational jury to find him guilty beyond a reasonable doubt because
the evidence showed that Bullard was fatally shot by Reynolds, and
that the trial court therefore should have overturned the verdict on
the general grounds under a “thirteenth juror” standard. We hold
that the evidence was sufficient to support the verdict, and that
Williams’ argument with respect to the “thirteenth juror” standard
lacks merit.
(a) As an initial matter, we disagree with Williams’ contention
that the evidence was insufficient because Reynolds fatally shot
4 Bullard. OCGA § 16-2-20 (a) provides that anyone “concerned in the
commission of a crime is a party thereto and may be charged with
and convicted of commission of the crime.” A person is “concerned
in the commission of a crime” if that person, among other things,
“[i]ntentionally aids or abets” the commission of the crime or
“[i]ntentionally advises, encourages, hires, counsels, or procures”
another individual to commit the crime. OCGA § 16-2-20 (b) (3), (4).
To be convicted, a person need not necessarily be the one directly
committing the crime. See Cisneros v. State, 299 Ga. 841, 846-848
(2) (792 SE2d 326) (2016). And although mere presence at the crime
scene is insufficient to convict someone of being a party to a crime,
criminal intent may be inferred from conduct before, during, and
after the commission of a crime. See Williams v. State, 304 Ga. 658,
661 (1) (821 SE2d 351) (2018); Powell v. State, 291 Ga. 743, 744-745
(1) (733 SE2d 294) (2012).
Williams was charged as a party to the crime. He was driving
the vehicle with the other perpetrators and got out, armed, and
confronted Bullard, stating “Yeah, n****r, I’m ready to die, I’ve been
5 snorting all night.” Reynolds then walked up to Bullard and shot
him. Williams drove the car away from the scene with the others
and then ran away with Reynolds after crashing the car. This
evidence was sufficient to enable a rational trier of fact to find
Williams guilty beyond a reasonable doubt as a party to malice
murder. See Green v. State, 302 Ga. 816, 817 (1) (809 SE2d 738)
(2018) (evidence sufficient under similar facts to affirm conviction of
Williams’ co-defendant who also did not shoot Bullard). See also
Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560)
(1979); Vega v. State, 285 Ga. 32, 33 (1) (673 SE2d 223) (2009) (“It
was for the jury to determine the credibility of the witnesses and to
resolve any conflicts or inconsistencies in the evidence.” (citation
and punctuation omitted)).
(b) To the extent Williams argues that the trial court failed to
correctly apply the “thirteenth juror” standard, this argument also
lacks merit. When a defendant challenges his conviction on the
general grounds, OCGA §§ 5-5-20 and 5-5-21, and contends the
verdict was contrary to the evidence or lacked evidence to support
6 it, a trial court has broad discretion to sit as the “thirteenth juror”
and consider certain matters beyond the sufficiency of the evidence.
See Allen v. State, 296 Ga. 738, 740 (2) (770 SE2d 625) (2015). These
additional matters include conflicts in the evidence, the credibility
of witnesses, and the weight of the evidence. See id.
As relevant here, the court’s order denying the motion said that
it considered the credibility of the witnesses in addition to the
weight of the evidence presented at trial and concluded, in denying
the motion for new trial on the general grounds, that the evidence
was sufficient to find Williams guilty beyond a reasonable doubt.
The court therefore ruled on the motion based on its own
independent review of the trial record and found no discrepancy
between the jury’s conclusions regarding the weight of the evidence
and the credibility of the witnesses and the court’s own views of
those matters. “This is not a case where the trial court explicitly
declined to consider the credibility of the witnesses in denying the
defendant’s motion for new trial or made clear its belief that it had
no discretion to grant a new trial despite disagreeing with the jury’s
7 verdict.” (Citation and punctuation omitted.) Burney v. State, 299
Ga. 813, 816 (1) (c) (792 SE2d 354) (2016). Accordingly, this
enumeration of error lacks merit.
(c) To the extent Williams argues that the trial court erred in
its capacity as the “thirteenth juror” by denying him a new trial
under OCGA § 5-5-21, this argument also fails. Whether to grant a
new trial under OCGA § 5-5-21 is committed solely to the discretion
of the trial court, and when an appellant asks this Court to review a
trial court’s denial of a new trial on this ground, we review the case
under the standard set forth in Jackson v. Virginia, supra. See Dent
v. State, 303 Ga. 110, 114 (2) (810 SE2d 527) (2018). And as
explained above, the evidence presented at trial was sufficient to
authorize a rational jury to find Williams guilty beyond a reasonable
doubt of the crime of which he was convicted. Accordingly, this
2. Williams argues next that his post-trial counsel provided
ineffective assistance because she did not file an amended motion
for new trial explicitly adopting the grounds for appeal that were
8 raised in the motion for new trial filed by trial counsel or
independently raise any additional claims, thus resulting in
“abandonment” of unspecified claims. We disagree.
Generally, when a preserved[3] ineffective assistance of counsel claim is raised for the first time on appeal, we must remand for an evidentiary hearing on the issue. But remand is not mandated if we can determine from the record that the defendant cannot establish ineffective assistance of counsel under the two-prong test set forth in Strickland [v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984)].
(Citation and punctuation omitted.) Anthony v. State, 302 Ga. 546,
554 (V) (807 SE2d 891) (2017). To prevail on a claim of ineffective
assistance under Strickland, Williams must demonstrate that: (1)
counsel’s performance was professionally deficient; and (2) counsel’s
deficient performance prejudiced him. See Strickland, 466 U. S. at
687 (III).
Williams has failed to meet this high burden because he does
3 “To preserve the issue of ineffective assistance of post-trial counsel,
[Williams] had to raise the issue at the earliest practicable opportunity of post- conviction review or the issue is waived.” (Citation and punctuation omitted.) Anthony v. State, 302 Ga. 546, 554 (V) (807 SE2d 891) (2017). Williams has met that standard because this appeal is his first opportunity to raise the issue, given the procedural posture of the case. 9 not specifically identify what additional claims his post-trial counsel
should have argued and how those claims would have been
meritorious. Further, the claims raised in the motion for a new trial
were still before the trial court despite not being raised for a second
time in an amended motion, and the trial court ruled on each of those
claims. Because Williams has failed to show any way in which his
post-trial counsel was deficient, this claim of ineffective assistance
fails.
3. Williams next argues that the trial court ruled on his motion
for a new trial without being prompted to do so by either party,
which denied him his “Sixth Amendment right to appeal” because
he was prevented from filing further pleadings in support of his
motion. This argument lacks merit.
The trial court entered a ruling on Williams’ motion for new
trial after conducting three hearings and after post-trial counsel for
Williams announced that she had no further arguments. Here, the
trial court retained the power to review Williams’ motion for new
trial, and Williams could amend that motion up until it was ruled
10 upon. See OCGA §§ 5-5-1 (a), 5-5-40 (b). Williams has pointed us to
no authority providing that a trial court cannot rule on a pending
motion until requested by a party, and the cases he cites do not stand
for that proposition. His argument therefore fails.
4. Lastly, Williams makes several arguments pertaining to an
alleged conflict of interest involving his former defense counsel, Tim
Hoffman. Each of these arguments fail.
Prior to Williams’ trial, Williams’ trial counsel argued that a
conflict existed with respect to one of the State’s witnesses, Robert
Brown. Brown had been represented in a prior, unrelated case by
Hoffman, who also worked in the office of Williams’ public defender.
Hoffman had briefly represented Williams in the beginning of
Williams’ murder case and had reviewed discovery, interviewed the
medical examiner, and spoken with Williams and his family.
However, the case was reassigned to another attorney in the public
defender’s office, who continued representing Williams through his
trial.
Brown was called to testify in the case against Williams
11 regarding an incident in the Tift County jail in which Williams gave
Brown a note to pass to Reynolds, which instructed Reynolds how to
testify in Williams’ murder case.
Williams’ trial counsel was addressing the issue with the court
immediately prior to trial, and with Williams present, when
Hoffman suggested a confidential meeting between himself and the
trial judge to explain his position and to address any confidential
information that would be protected by attorney-client privilege.
The court agreed and met with Hoffman and a court reporter in
chambers. The trial court ultimately decided there was no conflict
because Brown’s prior case was closed and Brown’s testimony in
Williams’ case was limited to his passing of the note. The trial court
instructed Hoffman to make himself “scarce” during Williams’ trial.
Williams’ trial counsel objected that there was a conflict, but did not
object to the in-chambers discussion held with Hoffman by the court.
(a) Williams argues that the trial court erred in declining to
find a conflict of interest with respect to Hoffman, that the trial court
erred when it instructed Hoffman to make himself scarce, and that
12 this violated his right to counsel and denied him an effective cross-
examination of Brown. We disagree with Williams and hold that an
impermissible conflict did not exist under the facts of this case.
In order for Williams to prevail on his claim that his attorney
was operating under a conflict of interest that violated his right to
counsel, he must show more than a mere possibility of conflict. That
is, Williams must show “an actual conflict of interest that adversely
affected his attorney’s performance.” Turner v. State, 273 Ga. 340,
342 (2) (a) (541 SE2d 641) (2001).
“Where, as here, the alleged conflict of interest is based upon
defense counsel’s prior representation of a prosecution witness, we
must examine the particular circumstances of the representations
to determine whether counsel’s undivided loyalties remain with the
current client, as they must.” (Citation and punctuation omitted.)
Turner, 273 Ga. at 342 (2) (a).
In this regard, we believe that the factors that arguably may interfere with effective cross-examination . . . include: (1) concern that the lawyer’s pecuniary interest in possible future business may cause him or her to avoid vigorous cross-examination which might be embarrassing
13 or offensive to the witness; and (2) the possibility that privileged information obtained from the witness in the earlier representation might be relevant to cross- examination. Another factor that should be considered . . . is whether the subject matter of the first representation is substantially related to that of the second.
(Citations and punctuation omitted.) Hill v. State, 269 Ga. 23, 24 (2)
(494 SE2d 661) (1998).
Here, there is no evidence that the first factor applies because
Williams’ lawyers were public defenders, and there is no suggestion
of any pecuniary interest being at stake. As to the second and third
factors, Hoffman previously represented Brown on charges
unrelated4 to Bullard’s murder and the later jailhouse note, and
those charges against Brown had already been resolved, so there
was no simultaneous representation of Williams and Brown. Nor
does the record indicate that trial counsel’s performance was
affected in any way. Compare Wheeler v. State, 290 Ga. 817, 820-
821 (6) (b) (725 SE2d 580) (2012) (record belied assertion of conflict
4 Hoffman represented Brown on two cases — one charging him with
theft by taking, and another charging him with possession of cocaine, driving on a suspended license, and failure to maintain his lane. 14 of interest where defense counsel previously represented a state’s
witness in a prior, unrelated criminal case), with Mitchell v. State,
261 Ga. 347, 348-349 (2) (405 SE2d 38) (1991) (conflict of interest
arising from defense counsel’s simultaneous representation of
defendant and state’s witness continued even after defense counsel
was relieved of his representation of the state’s witness). We find no
error here.
(b) Finally, Williams argues that the trial court erred when it
excluded him from “extensive, critical discussions outside the jury’s
presence.” More specifically, Williams complains that he had a right
to be present in chambers when Hoffman was discussing potentially
privileged information pertaining to his prior representation of
Brown. We disagree that Williams was entitled to be present in
chambers for these discussions, and further hold that Williams
waived his objection.
Embodied within the constitutional right to the courts, see Art. I, Sec. I, Par. XII of the Georgia Constitution of 1983, is a criminal defendant’s right to be present and see and hear, all the proceedings . . . against him on the trial before the Court. This is a fundamental
15 right and a foundational aspect of due process law.
(Citations and punctuation omitted.) Ward v. State, 288 Ga. 641,
645 (4) (706 SE2d 430) (2011). This right has been interpreted to
attach “at any stage of a criminal proceeding that is critical to its
outcome if the defendant’s presence would contribute to the fairness
of the procedure.” (Citation and punctuation omitted.) Huff v. State,
274 Ga. 110, 111 (2) (549 SE2d 370) (2001). “This Court has
determined that a critical stage in a criminal prosecution is one in
which a defendant’s rights may be lost, defenses waived, privileges
claimed or waived, or one in which the outcome of the case is
substantially affected in some other way.” (Citation and
punctuation omitted.) Id.
Even assuming, dubiously, that Williams had a right to be
present at these discussions of a witness’s attorney-client privileged
information, “in failing to voice any objection during the trial
proceedings to [his] absence” at the conference in chambers,
Williams “clearly acquiesced in [his] trial counsel’s waiver of [his]
right to be present” at that conference. See Williams v. State, 300
16 Ga. 161, 166 (3) (794 SE2d 127) (2016) (concluding that defendant
acquiesced to trial counsel’s waiver of her right to be present at a
bench conference where defendant remained silent after being
informed that conference had occurred in her absence and of the
nature of the discussions); Murphy v. State, 299 Ga. 238, 241 (2) (787
SE2d 721) (2016) (“Acquiescence may occur when counsel makes no
objection and a defendant remains silent after he or she is made
aware of the proceedings occurring in his or her absence.”). Thus,
this contention is without merit.
Judgment affirmed. All the Justices concur.
DECIDED JANUARY 27, 2020. Murder. Tift Superior Court. Before Judge Cross. Allen D. Williams, pro se.
17 C. Paul Bowden, District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Vanessa T. Sassano, Assistant Attorney General, Mark S. Lindemann, Assistant Attorney General, for appellee.