Wofford v. State

305 Ga. 694

• Court: Supreme Court of Georgia
• Decided: April 29, 2019
• Docket: S19A0129
• Status: Published

Opinion

305 Ga. 694 FINAL COPY S19A0129. WOFFORD v. THE STATE.

BLACKWELL, Justice.

Briones Ladon Wofford was tried by a Floyd County jury and

convicted of murder and other crimes in connection with the fatal

shooting of Jimmie Sellers and the wounding of Mardell Blackburn.

Wofford appeals, contending that he was denied the effective

assistance of counsel. Upon our review of the record and briefs, we

find no merit in this claim. We do note, however, that the trial court

erred when it failed to merge an aggravated assault and an

aggravated battery, both of which are based on the infliction of a

single gunshot wound upon Blackburn. We vacate the conviction

and sentence for aggravated assault, and we otherwise affirm. 1

1 Sellers and Blackburn were shot on February 28, 2016. A grand jury

indicted Wofford and co-defendant Tennah Gueh in May 2016, charging each with murder with malice aforethought, murder in the commission of a felony, two counts of aggravated battery, four counts of aggravated assault, the unlawful possession of a firearm during the commission of a felony, and the unlawful possession of a firearm by a convicted felon. It appears that the charges against Gueh were later dropped. Wofford was tried alone in May 2017, and the jury found him guilty on all counts. The trial court sentenced 1. Viewed in the light most favorable to the verdict, the record

shows that Wofford and his girlfriend, Tennah Gueh, went to a

nightclub in Rome on the evening of February 27, 2016. Early the

next morning, Sellers came to the club with his brother, Denier

Floyd. Around 1:45 a.m., Wofford approached Floyd outside the club,

where Floyd was talking to some women. Wofford pulled out a pistol,

and when he refused to put it away, Floyd and Sellers decided to

leave. Floyd and Sellers then drove to a house in south Rome, where

Blackburn was living.

When Floyd and Sellers arrived at the home, they found not

only Blackburn, but also Wofford in the front yard. 2 Sellers

Wofford to imprisonment for life without the possibility of parole for malice murder, a consecutive term of imprisonment for twenty years for an aggravated assault upon Blackburn, a concurrent term of imprisonment for twenty years for an aggravated battery upon Blackburn, a consecutive term of imprisonment for five years for possession of a firearm during the commission of a felony, and a concurrent term of imprisonment for five years for possession of a firearm by a convicted felon. The verdict as to felony murder was vacated as a matter of law, and the trial court merged the other counts for sentencing. Wofford timely filed a motion for new trial, which he amended in November 2017. The trial court denied the motion in April 2018, and Wofford then timely filed a notice of appeal. The case was docketed in this Court for the term beginning in December 2018 and submitted for decision on the briefs. 2 It appears that Gueh remained in her car, which was parked on the

street. confronted Wofford about the incident at the club. The confrontation

escalated, and Sellers punched Wofford in the face, knocking him to

the ground. Blackburn intervened, and as he began to walk with

Sellers across the street, Wofford picked up his pistol (which had

fallen out of his pants when he fell) and fired at them. The gunshot

struck Blackburn in the head, and he fell to the ground. Wofford

then pursued Sellers around a parked car, continuing to shoot at

him. When Sellers stopped and asked Wofford if he was “really going

to kill [him] like this,” Wofford shot Sellers in the head and fled the

scene with Gueh. Blackburn survived the shooting, but Sellers did

not.

(a) Wofford does not dispute that the evidence is sufficient to

sustain his convictions. But consistent with our usual practice in

murder cases, we have reviewed the record to assess for ourselves

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

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

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

beyond a reasonable doubt that Wofford 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).

(b) Although the jury was authorized by the evidence to find

Wofford guilty of both an aggravated assault and an aggravated

battery upon Blackburn, the trial court was authorized to enter a

judgment of conviction and impose sentence for only one of those

offenses. As charged in the indictment, the aggravated assault and

the aggravated battery both were based on the single gunshot that

struck Blackburn in the head. The trial court should have merged

those crimes. See Regent v. State, 299 Ga. 172, 176 (787 SE2d 217)

(2016) (aggravated assault merged with aggravated battery where

both crimes were based on the same conduct toward the same

victim). Because it did not, we vacate the conviction and sentence

for aggravated assault.

2. Wofford claims that he was denied the effective assistance of

counsel at trial. To prevail on this claim of ineffective assistance,

Wofford must prove that his lawyer performed deficiently at trial

and that he was prejudiced by this deficient performance. See Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80

LE2d 674) (1984). To prove deficient performance, Wofford must

show that defense counsel performed his duties at trial in an

objectively unreasonable way, considering all the circumstances and

in the light of prevailing professional norms. Id. at 687-688 (III) (A).

See also Kimmelman v. Morrison, 477 U. S. 365, 381 (II) (C) (106

SCt 2574, 91 LE2d 305) (1986). And to prove that he was prejudiced

by this deficient performance, Wofford must show “a reasonable

probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U. S. at 694 (III) (B). This burden is a

heavy one, see Kimmelman, 477 U. S. at 382 (II) (C), and we

conclude that Wofford has failed to carry it.

(a) Wofford first complains that his lawyer failed to ask a

testifying police officer about certain photographs that were taken

at the crime scene. The record shows that the lawyer asked the

officer on cross-examination whether he had taken photographs of jewelry at the crime scene. The officer responded that he did not

recall having observed any jewelry at the crime scene. After a few

more (unrelated) questions, the lawyer concluded his cross-

examination and agreed that the officer could be excused. The

lawyer never asked the officer if he could identify two photographs

that purportedly depict a ring on the ground at the crime scene.

According to Wofford, the ring depicted in those photographs was

his and would have supported the justification defense that he

asserted at trial. 3

But we do not know what testimony the police officer would

have given if the lawyer had asked him to identify the photographs.

At the hearing on the motion for new trial, Wofford failed to call the

officer as a witness, and Wofford failed to otherwise authenticate the

photographs at issue. The only witness at the hearing was his trial

lawyer, and the lawyer could only speculate about what the officer

3 Wofford presented no evidence at trial, the opening and closing statements of counsel were not transcribed, and his appellate brief does not offer much detail about the particulars of this justification defense. It seems, however, that the defense was based on a claim that Sellers and Floyd tried to rob Wofford. might have said in response to the line of cross-examination that

Wofford says the lawyer should have pursued. But “a defendant

cannot use defense counsel’s testimony about what an uncalled

witness had been expected to say in order to establish the truth of

that uncalled witness’s testimony.” Dickens v. State, 280 Ga. 320,

322 (2) (627 SE2d 587) (2006). In the absence of any evidence that

the officer could have offered favorable testimony at trial, Wofford

cannot show that his lawyer rendered ineffective assistance when

he failed to elicit such testimony. See Goodwin v. Cruz-Padillo, 265

Ga. 614, 616 (458 SE2d 623) (1995).

(b) Wofford also complains that his lawyer failed to impeach

four witnesses for the prosecution — Floyd, Blackburn, a man who

saw Wofford fleeing the scene and called 911, and a woman who saw

the shootings — with prior convictions under OCGA § 24-6-609.

These complaints, however, lack merit. As to Floyd, the lawyer, in

fact, impeached him with two prior felony convictions. And although

Floyd had other prior convictions, Wofford has failed to show that

any of these other convictions would have been admissible to further impeach Floyd. 4 As to Blackburn and the man who saw Wofford flee

and called 911, Wofford has failed to show that they had any prior

convictions, much less convictions that would have been admissible

to impeach them.

As to the woman who saw the shootings, the only prior

conviction with which she properly could have been impeached is a

misdemeanor conviction for giving a false name to a police officer.5

See OCGA § 24-6-609 (a) (2) (impeachment by conviction for crime

involving “an act of dishonesty or making a false statement”).

Wofford has failed to show that his lawyer was ineffective when he

failed to use that prior conviction to impeach the woman. At the

hearing on his motion for new trial, Wofford never asked his lawyer

why he did not impeach the woman with her prior conviction for

4 Some of Floyd’s other convictions would have been presumptively inadmissible because they were too old, see OCGA § 24-6-609 (b), and his remaining convictions would have been absolutely inadmissible because they are not for felonies or crimes involving dishonesty or a false statement. See OCGA § 24-6-609 (a).

5 The record shows that the woman also had a prior misdemeanor conviction for possession of marijuana, but that conviction would not be admissible under OCGA § 24-6-609 (a) (1) or (2). giving a false name, and we assume that the lawyer declined to do

so as a matter of strategy. See Heard v. State, 296 Ga. 681, 685 (3)

(c) (769 SE2d 917) (2015). The record fails to show that such a

strategy would have been unreasonable. The lawyer described the

woman as “soft-spoken,” she was a friend of Wofford, and she

admitted on cross-examination at trial that she had been drinking

for several hours prior to the shootings and that, until the shootings,

she had not been paying much attention to Wofford or the other men

involved in the shootings. As such, a competent lawyer could have

concluded reasonably that it was better to portray the woman as

well-meaning but mistaken, rather than attempting to portray her

as dishonest by impeaching her with a prior conviction. Wofford has

failed to show that his lawyer rendered ineffective assistance with

respect to impeaching witnesses with prior convictions.

(c) Finally, Wofford complains that his lawyer failed to present

evidence at trial that Sellers had a criminal history and was a gang

member. But at the hearing on his motion for new trial, Wofford did

not come forward with any evidence that Sellers, in fact, was ever in a gang, so it is not clear what evidence of gang membership would

have been available to his lawyer at the time of trial (or if such

evidence would have been admissible). Wofford did produce evidence

at the hearing that Sellers had numerous misdemeanor convictions,

a 2007 conviction for felony marijuana possession, and a 2013

conviction for felony possession of drugs or weapons by an inmate.6

But Wofford has not shown that any of these prior convictions would

have been admissible at trial. Character evidence about a victim

generally “is limited to reputation or opinion, not specific bad acts.”

(Emphasis omitted.) Mohamud v. State, 297 Ga. 532, 536 (3) (773

SE2d 755) (2015). See also OCGA § 24-4-405. And there is no

evidence that Wofford was aware at the time of the shootings that

Sellers had these prior convictions, so the convictions would not

have been admissible to show Wofford’s state of mind or the

reasonableness of his conduct. See OCGA § 24-4-404 (b). See also

Mohamud, 297 Ga. at 536 (3) n.2 (noting that whether such evidence

6 Wofford did not present any evidence to show whether this conviction

was based on possession of a weapon or possession of drugs. is admissible for this purpose is not established). Absent a showing

that these prior convictions would have been admissible at trial,

Wofford cannot prove that his lawyer rendered ineffective assistance

when he failed to present evidence of the prior convictions.

Judgment affirmed in part and vacated in part. All the Justices

concur.

Decided April 29, 2019.

Murder. Floyd Superior Court. Before Judge Sparks.

Karen H. Brouse, for appellant.

Leigh E. Patterson, District Attorney, Kevin Salmon, Jason M.

Rea, Assistant District Attorneys; Christopher M. Carr, Attorney

General, Patricia B. Attaway Burton, Deputy Attorney General,

Paula K. Smith, Senior Assistant Attorney General, for appellee.