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Rainwater v. State

Supreme Court of Georgia

March 6, 2017


          Boggs, Justice.

         Appellant Kevaughn Rainwater was acquitted of malice murder, but found guilty of felony murder, aggravated assault, and possession of a firearm during the commission of a felony, in the shooting death of Antavious Maddox.[1]He now appeals, challenging the sufficiency of the evidence, claiming violations of the continuing witness rule, and contending he received ineffective assistance of counsel. For the following reasons, we affirm.

         1. Rainwater first argues that the evidence was insufficient to sustain his convictions either as a principal or a party to the crimes. Viewed in the light most favorable to the verdict, the evidence at trial established as follows: Rainwater went to the victim's apartment in DeKalb County to purchase marijuana twice on June 24, 2012, the day the victim was shot multiple times and died from his wounds. Three eyewitnesses - Evander Spears, Travon Parham, and Damon Holmes - placed Rainwater at the scene of the shooting.[2]Spears, who lived in an apartment building across from the victim's apartment, testified that he heard a gunshot and, walking out of his apartment, saw Rainwater running with a gun into the apartment complex parking lot. Spears stated he also saw a second man standing near a dumpster in the parking lot and a third man arguing with the victim upstairs on the balcony outside the victim's apartment. According to Spears, as the victim and the third man began to tussle, the victim attempted to get away by jumping over the balcony railing onto the stairs below. Spears then heard four more gunshots and, as the third man ran into the victim's apartment and the second man yelled for the others to "come on, " Spears also yelled "everybody come on, " and walked over to where the victim was lying on the stairs screaming and begging for his life. The third man exited the victim's apartment with a bag which he tossed to Rainwater, and all three men ran into the woods.

         Parham and Holmes lived in the apartment next door to the victim and also testified at the trial. According to Parham, on the day of the shooting he saw the victim talking with Rainwater and two other individuals on the balcony outside the apartment. Parham left his apartment soon thereafter but, upon his return, saw the same three individuals walking from the area. Ten to fifteen minutes later while he was in his apartment, Parham heard gunshots. Holmes, who was in the apartment with Parham, testified that he had been asleep, but was awakened by the gunshots. Holmes stated that, after hearing the shots, he looked out his window and saw the victim sitting in the stairwell screaming for help and begging "don't shoot me any more." Holmes also stated he saw Rainwater come down the stairs and look at the victim "dead in his face" with a "cold look" before walking away.

         In his statement to police, Rainwater claimed that he was in Atlanta with his girlfriend on the day of the shooting. However, his girlfriend lived in Atlanta outside of DeKalb County, and cell phone records placed Rainwater's cell phone in DeKalb County shortly before and after the shooting. At trial, Rainwater testified he later determined that he was not with his girlfriend when police showed him the phone records, and responded affirmatively when asked if he had his "weekends mixed up[.]" He then explained that he was at a friend's house during the shooting.

         Rainwater argues that there was no evidence that he shot the victim and that he was merely present at the scene."While mere presence at the scene of a crime is not sufficient evidence to convict one of being a party to a crime, criminal intent may be inferred from presence, companionship, and conduct before, during and after the offense." (Citation omitted.) Belsar v. State, 276 Ga. 261, 262 (1) (577 S.E.2d 569) (2003). The evidence outlined above was sufficient to authorize a rational jury to find beyond a reasonable doubt that Rainwater was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979); see also Belsar, supra (evidence established more than defendant's mere presence at the scene of the crimes); OCGA § 16-2-20.

         2. Rainwater asserts that the trial court erred in allowing State's Exhibits 20, 28, and 29 to go out with the jury in violation of the continuing witness rule. These exhibits, photographic lineup admonition forms, contained handwritten statements by Parham, Spears, and Holmes, explaining the actions of Rainwater they witnessed on the day of the murder, and were allowed to go back with the jury with no objection from counsel. Rainwater asserts that the trial court erred in its motion for new trial order in finding no plain error.[3]

[P]lain error requires a clear or obvious legal error or defect not affirmatively waived by the appellant that must have affected the appellant's substantial rights, i.e., it affected the outcome of the trial-court proceedings. Stated more succinctly, the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings. If the failure to give an instruction is shown to constitute such an error, the appellate court may remedy the error by exercising its discretion if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

(Citation and punctuation omitted.) Bradford v. State, 299 Ga. 880, 885-886 (6) (b) (792 S.E.2d 684) (2016). "Satisfying all four prongs of this standard is difficult, as it should be." (Citations and punctuation omitted.) State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 S.E.2d 232) (2011).

In Georgia, the continuing witness objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once. The types of documents that have been held subject to the rule include affidavits, depositions, written confessions, statements, and dying declarations.

(Citations and punctuation omitted.) Davis v. State, 285 Ga. 343, 348 (8) (676 S.E.2d 215) (2009). To the extent the photographic lineup admonition forms contained statements beyond the identification of Rainwater, allowing them to go back with the jury violated the continuing witness rule. See Roberts v. State, 282 Ga. 548, 552 (10) (651 S.E.2d 689) (2007) (error to allow written report of questioned-documents examiner to go out with jury); compare Dockery v. State, 287 Ga. 275, 277 (4) (695 S.E.2d 599) (2010) (no continuing witness rule violation where lineup forms went out with jury containing only witness's name and signature, number of photograph selected, date and time, and name of detective who conducted lineup). But Rainwater has not made an affirmative showing that the "error probably did affect the outcome below." (Citation and punctuation omitted.) Shaw v. State, 292 Ga. 871, 873 (2) (742 S.E.2d 707) (2013). During trial, defense counsel cross-examined Holmes about his statements on the admonition form explaining his identification of Rainwater in the lineup. Therefore, any undue emphasis potentially placed upon the statement during deliberations was overshadowed by the greater emphasis placed on the statement at trial by defense counsel. The statement on Parham's form stated only that the person he chose in the lineup was "standing outside my door talking to my neighbor." And although the brief statements on Spears's form gave more detail of Rainwater's actions than the statements on Holmes's and Parham's forms, those statements were still much less detailed than Spears's oral testimony. See Roberts v. State, supra, 282 Ga. at 552-553 (10) (decided prior to enactment of new Evidence Code; considering weight of direct evidence against defendant and fact that report was brief and conclusory and less detailed than witness's oral testimony, highly probable that error in permitting report to go out with jury did not contribute to verdict). Moreover, three eyewitnesses placed Rainwater at the scene. One witness testified that after he heard a gunshot, Rainwater ran past him holding a gun, and that Rainwater took a bag from another man, who had been in the victim's apartment, before running into the woods. And two witnesses testified that Rainwater stood over the victim as the victim screamed for help.

          In light of the strong evidence that Rainwater was a party to the crimes, and trial counsel's cross-examination of one of the witnesses regarding the statements made on the lineup admonition form, there is no plain error here. See Gates v. State, 298 Ga. 324, 327-328 (3) (781 S.E.2d 772) (2016).

         3. Rainwater contends that trial counsel was ineffective in failing to object to the photographic lineup admonition forms going out with the jury in violation of the continuing witness rule. Under the standard of Strickland v. Washington, 466 U.S. 668 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984), "[i]n order to prevail on a claim of ineffective assistance of counsel, [Rainwater] must show both that counsel's performance was deficient, and that the deficient performance was prejudicial to his defense." (Citations omitted.) Simmons v. State, 299 Ga. 370, 375 (3) (788 S.E.2d 494) (2016).

         We have concluded in Division 2 above that there was no plain error in allowing the forms to go out with the jury. We likewise conclude that Rainwater has failed to show that counsel's failure to object, even if deficient, affected the outcome of the proceedings. See Johnson v. State, 295 Ga. 615, 619 (3) (a) (759 S.E.2d 837) (2014). As explained in Division 1, there was strong evidence that Rainwater was a party to the crimes. See Hernandez v. State, 299 Ga. 796, 801 (4) (792 S.E.2d 373) (2016) (given collective weight of evidence, ...

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