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Menefee v. State

Supreme Court of Georgia

June 19, 2017

MENEFEE
v.
THE STATE. WILLIAMS
v.
THE STATE.

          BENHAM, Justice.

         Appellants Travon Menefee and Christian Williams appeal their convictions for malice murder and related crimes stemming from a "drug deal gone bad" which resulted in the death of Antonias Williams (no relation to Christian).[1] For reasons set forth below, we affirm in part, vacate in part and remand the cases to the trial court to address errors in sentencing.

         In a light most favorable to upholding the verdicts, the evidence shows on the early afternoon in question, Daniel Alexander, his brother Jamol Alexander and three of their friends-Cimieon Riley, Andre Morris and Antonias Williams-drove together to the Hickory Park Apartments in order to purchase marijuana from Christian. Daniel had previously purchased drugs from Christian without incident. Inside the vehicle, Jamol had an AK-47 rifle[2]perched against the front seat, and there was also a 9mm Ruger[3] that was eventually recovered by police from inside Antonias's pants. The group of men brought the guns because Hickory Park had a reputation for being unsafe. A police officer familiar with the area testified that Hickory Park was a known place for drug transactions and gun violence. When the group arrived, Daniel exited the car to speak with Christian, and Riley exited the car to speak with Menefee, whom Riley knew personally.

         Christian told Daniel he did not have the drugs with him and instructed the group to drive to the back of the complex. When the men arrived at the back of the complex, Riley, Morris and Daniel exited the vehicle, while Jamol and Antonias remained inside the vehicle with Antonias sitting behind Jamol. During Daniel's encounter with Christian, Christian walked away and came back several times, purporting to get the drugs. When Christian last approached the car on the passenger side, Daniel testified he was retrieving the cash for the drugs from the glove compartment. At that point, Christian pulled out a gun, held it to Daniel's head and told him to "give it up, " meaning Christian wanted the money, and the two men then began "tussling" for the gun.[4] Daniel testified that Christian attempted to pull the trigger on the gun, but it jammed. Daniel said he started to reach for the AK-47 to ward off Christian and said that, upon Christian's seeing the rifle inside the vehicle, Christian yelled something to the effect of, "They have a gun, shoot, shoot, shoot!" At these words, Menefee and a man with dreadlocks, [5] who were both standing near the car by that time, [6] opened fire as Christian fled. Once the shooting stopped, Daniel managed to retrieve the rifle and load it, but he did not shoot because all three perpetrators had fled by that time.

         In the melee, Jamol was shot in the arm and Antonias was fatally shot in the head. Jamol testified Menefee was standing on the side of the vehicle where Antonias was sitting with the window rolled down. Jamol said he saw Menefee shoot Antonias in the head. Jamol also said that it was the dreadlocked man who shot him.

         At some point, Daniel reentered the car and Jamol began driving away. They picked up Morris on their way out of the apartment complex.[7] About four minutes later, Jamol pulled the car over onto the side of a highway because its tires had been deflated by bullets. Once pulled over, Daniel exited the car and flagged down a passing driver who called 911.

         The State presented several witnesses to testify about the physical evidence. A ballistics expert testified that none of the shell casings and projectiles that were recovered from the scene of the shooting were fired by the weapons recovered from Jamol's car. In addition, the police did not recover any shell casings or projectiles from inside the vehicle. Antonias's hands were tested for gunshot residue, but the results were negative. A police investigator testified that the other occupants' hands were not tested for gunshot residue because their investigation led them to believe no gunshots had been fired from the car. The medical examiner testified Antonias died from a gunshot wound to the back of his head and that the bullet was still lodged there at the time of the autopsy. He also said he found gun powder in the wound, explaining this meant the muzzle of the gun was within a few feet of Antonias at the time of the shooting.

         S17A0542

         1. Menefee contends the evidence was insufficient to convict him of the crimes of the attempted armed robbery of Daniel Alexander and the aggravated assault of Jamol Alexander because there is no evidence he committed any crime against either of the brothers. We disagree. Pursuant to OCGA § 16- 2-20(a), "[e]very person concerned in the commission of a crime is a party thereto and may be ... convicted of commission of the crime." This includes aiding and abetting another. See OCGA § 16-2-20 (b) (3). This Court has explained:

Evidence of a defendant's conduct prior to, during, and after the commission of a criminal act will authorize the defendant's conviction for commission of the criminal act if a jury could infer from the conduct that the defendant intentionally encouraged the commission of the criminal act.

Jordan v. State, 272 Ga. 395 (1) (530 S.E.2d 192) (2000). Here, Christian lured the men to a more isolated part of the complex and leveled a gun to Daniel's head in an effort to rob him of the money he had brought to purchase drugs. As Christian was attempting to rob Daniel, Menefee and the dreadlocked man armed themselves and surrounded the vehicle. When Christian directed them to shoot their weapons, Menefee and his compatriot opened fire, injuring Jamol and fatally injuring Antonias. Although the evidence showed Menefee was the person who shot and killed Antonias, a jury could reasonably infer Menefee was part of the overall scheme, led by Christian, to rob Daniel of the money he brought to buy drugs. The evidence was sufficient to authorize a rational trier of fact to find Menefee guilty of being a party to the crime of the attempted armed robbery of Daniel Alexander and the aggravated assault of Jamol Alexander, as well as the other crimes for which the jury returned verdicts of guilty. See Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979); Sims v. State, 281 Ga. 541 (1) (640 S.E.2d 260) (2007).

         2. a. Menefee contends the trial court erred when it did not give charges on mutual combat and voluntary manslaughter. The record shows Menefee asked for these two jury charges, but then affirmatively withdrew his request for charges on lesser included offenses and then affirmatively waived his objections to the trial court's declining to charge on mutual combat or voluntary manslaughter. Because the record shows Menefee invited the error of which he now complains, the matter is not subject to direct appellate review or review for plain error. See Woodard v. State, 296 Ga. 803 (3) (a) (771 S.E.2d 362) (2015).

         b. To the extent Menefee claims his trial counsel was ineffective for his actions in withdrawing and waiving his objections concerning the charges on mutual combat and voluntary manslaughter, such claim must also fail. "To prevail on a claim of ineffective assistance of counsel, an appellant must prove both deficient performance of counsel and prejudice from the deficient performance." (Citation and punctuation omitted.) Gill v. State, 295 Ga. 705 (2) (763 S.E.2d 719) (2014). Menefee cannot meet this burden of proof.

         This Court has held that "[m]utual combat requires that both parties are at fault and are willing to fight because of a sudden quarrel." Jenkins v. State, 270 Ga. 607 (2) (f) (512 S.E.2d 269) (1999). Here, there was no such evidence. Daniel and his friends came to Hickory Park to purchase drugs from Christian. While Daniel and his friends had two weapons at their disposal, there was no evidence anyone in the group fired the guns at defendants or threatened to use the guns against the defendants. Rather, the evidence shows Christian began the deadly sequence of events by pulling a gun on Daniel and then escalated the encounter when he told his compatriots to shoot. Given the one-sided nature of the encounter, a charge on mutual combat was not warranted.

         Likewise, there was no evidence of a sudden provocation warranting a charge on voluntary manslaughter. This Court has explained:

To support a charge of voluntary manslaughter, there must be evidence that the accused acted solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. Whether such evidence exists is a question of law, but even slight evidence showing that the victim seriously provoked the defendant requires the trial court to give a requested charge on voluntary manslaughter. This Court has held, however, that neither fear that someone is going to pull a gun nor fighting are the types of provocation which demand a voluntary manslaughter charge.

(Citations and punctuation omitted.) Smith v. State, 296 Ga. 731 (3) (770 S.E.2d 610) (2015). Here, the evidence showed Antonias was sitting in the car when Menefee shot him in the back of the head. There was no evidence Menefee and Antonias knew each other or had even exchanged words that day. There was some evidence presented at trial that Antonias may have had the 9mm Ruger in his hand at some point, but there was no evidence that he threatened anyone with the gun. The only "provocation" was Christian's directive to shoot. There was no evidence that Antonias did anything to Menefee to provoke an irresistible passion within Menefee inducing him to shoot. Menefee cannot prevail on an ineffective assistance claim based on trial counsel's decision to forgo pursuing jury charges that were unsupported by the evidence. See Ruffin v. State, 296 Ga. 262 (4) (a) (765 S.E.2d 913) (2014).

         S17A0543

         3. As to Christian, the evidence adduced at trial and summarized above was sufficient to authorize a rational trier of fact to find him guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, supra, 443 U.S. at 319.

         4. Having forfeited the right to ordinary appellate review of the prosecutor's opening and closing arguments by failing to make contemporaneous objections, [8] Christian now seeks to attack those arguments by asserting an ineffective assistance of counsel claim. Christian contends trial counsel was constitutionally ineffective for failing to object to various statements the prosecutor made in his opening and closing arguments to the jury because he argues some of the statements constituted prosecutorial misconduct, violated the "golden rule, " improperly vouched for the credibility of the victims, improperly inflamed the passions of the jury, and/or misrepresented the evidence. In order to prevail on a claim of ineffective assistance of counsel, Christian

must show counsel's performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel's errors, the outcome of the trial would have been different. A strong presumption exists that counsel's conduct falls within the broad range of professional conduct.

(Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34 (4) (644 S.E.2d 837) (2007). For the reasons set forth below, we agree with the trial court that Christian did not meet the burden of proof necessary to show ineffective assistance.

         a. Attorneys are generally afforded wide latitude in making closing arguments. See Scott v. State, 290 Ga. 883 (2) (725 S.E.2d 305) (2012). Indeed, we have held:

A closing argument is to be judged in the context in which it is made. [Cit.] What is more, a prosecutor is granted wide latitude in the conduct of closing argument, the bounds of which are in the trial court's discretion; within the scope of such latitude is the prosecutor's ability to argue reasonable inferences from the evidence, including any that address the credibility of witnesses. [Cit.]

Id. at 885. Similarly, when making opening statements, the prosecutor is allowed to state what the evidence is expected to show and the content of such statements is within the broad discretion of the trial court. See Massey v. State, 263 Ga. 379 (2) (434 S.E.2d 467) (1993). We have reviewed the record in its entirety, including the State's opening and closing ...


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