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Sullivan v. State

Supreme Court of Georgia

April 17, 2017

SULLIVAN
v.
THE STATE.

          HUNSTEIN, Justice.

         Appellant Jamarrcus Rhashad Sullivan was tried and convicted of murder and related offenses in connection with the shooting death of Kevin Daniel and aggravated assault of Kamenika Whatley.[1] Sullivan appeals, claiming that he received ineffective assistance of counsel. Though we find no merit in Sullivan's claims of ineffective assistance, we do find error with regard to his sentences, and, therefore, we must vacate and remand for re-sentencing.

         Viewed in the light most favorable to the jury's verdicts, the evidence adduced at trial established as follows. Sullivan, Antonio Jones, and Christopher Smith, [2] a drug dealer, devised a plan to rob Kevin Daniel, who was a competing dealer. On June 1, 2013, Smith dropped Jones and Sullivan off near Daniel's home in Rome, Georgia. As the men approached the house with Smith's shotgun in tow, Jones recognized an SUV parked in the driveway as belonging to Kamenika Whatley. Scared that she would be able to identify Jones, the men decided that Jones would open the front door, and Sullivan would handle the rest.

         When Jones opened the door, Sullivan went inside, aimed the shotgun at Daniel and Whatley, and demanded drugs and money. Whatley complied but Daniel ignored the command and charged toward the intruders. Jones then fled the house and hid behind Whatley's car in the driveway as Daniel and Sullivan fought over the shotgun. Shortly thereafter, witnesses heard gun shots and the sound of glass breaking. Daniel stumbled outside holding the shotgun, fell off of his front porch, and landed in the yard; Sullivan followed Daniel out of the house, stood over him and shot him with a handgun. Sullivan then grabbed the shotgun, as well as Whatley's and Daniel's cell phones, and fled the scene with Jones. Smith picked up Sullivan and Jones in his red Chevy Malibu, at which time Sullivan explained that he had to shoot Daniel because Jones "had messed it up."

         Law enforcement arrived on the scene and found Daniel face down in the front yard somewhat responsive. He was taken to the hospital and later died from multiple gunshot wounds. A .40 caliber shell casing, approximately $3, 500 and some drugs were located at the scene. Cell phone records introduced at trial showed numerous phone calls made between Sullivan and Smith on the night of the murder. Daniel's blood was found inside Smith's red Chevy Malibu. Finally, officers learned that one of Sullivan's friends burned the clothes he wore on the night of the murder.

         While they were incarcerated, Sullivan sent Jones numerous letters regarding the case. Specifically, Sullivan requested that Jones deny Sullivan's involvement in the crimes and allege that he was coerced into making statements to law enforcement. Sullivan also described plans for fellow inmate and Bloods gang member Kevin Clinckscales to take responsibility for the crimes. Letters written by Sullivan to co-indictee Smith were also found in Sullivan's cell during a routine sweep wherein he discussed the case and Jones's statements to law enforcement. The State also introduced evidence that Sullivan was a member of the 9 Trey Billy Badass gang, which is affiliated with the Bloods.

         1. Though not enumerated by Sullivan, we find that the evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that he was guilty of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Sullivan alleges three claims of ineffective assistance of counsel, averring that his attorney failed to: a) object to hearsay statements introduced in violation of his Sixth Amendment right of confrontation; b) object to the introduction of two photographs; and, c) thoroughly cross-examine Antonio Jones regarding his potential plea deal. Further, Sullivan claims that the cumulative effect of trial counsel's errors substantially prejudiced his trial.

         To establish ineffective assistance of counsel, a defendant must show that his counsel's performance was professionally 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 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984).[3] "If the defendant fails to satisfy either prong of the Strickland test, this Court is not required to examine the other." (Citation omitted.) Propst v. State, 299 Ga. 557, 565 (788 S.E.2d 484) (2016). "In reviewing the trial court's decision, '[w]e accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.'" (Citation omitted.) Wright v. State, 291 Ga. 869, 870 (734 S.E.2d 876) (2012). With these principles in mind, we review Sullivan's alleged errors.

         (a) Failure to Object to Hearsay Statements

         Sullivan first argues that trial counsel was ineffective for failing to object to alleged hearsay testimony at trial. Specifically, an officer testified on direct examination that, two days after the murder, he spoke with a few of Sullivan's New York relatives who stated that Sullivan had called and "wanted to come there for a visit." Sullivan argues now, as he did below, that this qualified as testimonial hearsay in violation of his Sixth Amendment right to confrontation under Crawford v. Washington[4] and that trial counsel's failure to object constituted ineffective assistance. We disagree.

         Trial counsel testified at the motion for new trial hearing that he made a strategic decision not to object to this testimony. Counsel explained that he spoke with Sullivan's relatives in New York, and "they knew nothing about a murder, robbery, or anything else, " only "that he had just asked to come visit them." Counsel did not object to the statement because he believed it to be innocent in nature and did not believe the testimony was harmful.

         "A defendant who contends a strategic decision constitutes deficient performance, must show 'that no competent attorney, under similar circumstances, would have made it.'" (Citation omitted.) Davis v. State, 290 Ga. 584, 585-586 (723 S.E.2d 431) (2012). In fact, "[t]rial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them." McNair v. State, 296 Ga. 181, 184 (766 S.E.2d 45) (2014) (trial counsel's decision not to object to hearsay testimony did not constitute deficient performance when decision made as part of trial strategy). Here, Sullivan has failed to meet this very high burden.

         Sullivan has also failed to establish prejudice. Though he argues that this testimony provided the State with an argument that he attempted to flee after the murder, the record does not show that the State actually made this argument. Moreover, given the overwhelming evidence presented, Sullivan cannot show that the outcome of his trial would have been different had this testimony been excluded. ...


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