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Atkinson v. State

Supreme Court of Georgia

June 19, 2017


          MELTON, Presiding Justice.

         Following a jury trial, Jerrick Atkinson was found guilty of malice murder, aggravated assault, attempted armed robbery, possession of a firearm by a convicted felon, and various other offenses in connection with the shooting death of Wayne Edwards.[1] In his pro se appeal, Atkinson asserts thirty separate enumerations of error relating to the sufficiency of the evidence, his sentence, and other matters that transpired before and at trial and during his sentencing, [2]and he asserts twenty-three separate grounds of alleged ineffective assistance of his trial counsel.[3] For the reasons set forth below, we affirm Atkinson's convictions, but we must also vacate a portion of his sentence in order to rectify an issue relating to the merger of certain counts against him for sentencing purposes. Accordingly, we affirm in part and vacate in part.

         1. Viewed in the light most favorable to the jury's verdict, the record shows that, at around midnight on Saturday, December 13, 2008, Atkinson stood just outside of the open driver's side door of Edwards' car and killed Edwards by shooting him three times in the face and four times in the chest at nearly point blank range with a Masterpiece Arms "Mac 10" submachine gun after attempting to steal Edwards' wallet. Six shell casings from the Mac 10 were found at the scene, along with a seventh shell casing that had jammed inside of the Mac 10 due to its failure to eject completely from the gun when it was fired. The shooting took place outside of an El Ranchero restaurant, and a man and a woman heard a "pop" and "three or four" firecracker sounds that they believed to be gunfire as they left El Ranchero around the time of the shooting. When they got to the woman's car, they saw Atkinson and Edwards lying on the ground under two tightly adjacent trucks. One of the trucks belonged to Edwards, who lay unresponsive while he still clenched his wallet in his right hand. Atkinson asked the couple for help, as his leg had been shot, and the couple went back to the El Ranchero to summon a security officer. The Mac 10 submachine gun and another gun, a Bersa 9 millimeter, were inches away from Atkinson's hand under one of the trucks, and Atkinson's palm print was on the Bersa 9 millimeter. Blood spatter on the driver's side seat and floor board of Edwards' car indicated that the vehicle door was open at the time of the shooting.

         At the hospital two days after the incident, Atkinson's cousin, Angela Harris, spoke with Atkinson about what had happened at the El Ranchero. Atkinson told her that he walked up to a guy and asked, "Where's the package?" The man indicated that "the package" was under one of the car seats, and, while Atkinson looked for it, the man pulled out a gun and the two men struggled. Atkinson said that he was taking the Bersa 9 millimeter away from the man when he accidentally shot himself in the leg with it during the struggle, and then he "unloaded in [the man's] face with a gun." He then pushed the two guns under one of the trucks. Atkinson also told Angela to instruct her brother, Marquaze, to tell the police that Atkinson was never at the El Ranchero on the night of the shooting.

         After giving conflicting stories to police, Atkinson testified at trial that his cousin Marquaze had the Mac 10 and that Marquaze was the one who got into a confrontation with Edwards. Atkinson claimed that Edwards shot him in the leg when he tried to break up the argument between Marquaze and Edwards and that Marquaze shot Edwards. Atkinson explained that he made up the previous stories (that someone had shot him in the leg after trying to rob him, or, alternatively, that he was shot in the leg after accidentally running into gunfire that he heard from a distance) to avoid implicating his cousin. He also testified that Angela lied about the conversation in the hospital about him shooting Edwards in the face.

         In addition to the other evidence presented against Atkinson at trial, similar transaction evidence was introduced (following a hearing on its admissibility) in the form of Atkinson's 1998 conviction for armed robbery and other offenses relating to his carjacking of a victim at gunpoint and stealing the victim's wallet, and a different 1998 guilty plea to armed robbery where he pointed a gun at a woman and stole her purse.

         The evidence was sufficient to enable a rational trier of fact to find Atkinson guilty beyond a reasonable doubt of all the crimes of which he was convicted. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Although the evidence was sufficient to support the jury's guilty verdicts, we have noted an error with respect to the merger of certain counts for sentencing purposes. Specifically, the trial court purported to merge the possession of a firearm by a convicted felon count against Atkinson into one of the felony murder counts against him, and then merge that count into the malice murder count for sentencing purposes. However, the possession of a firearm by a convicted felon count could not merge into the felony murder count, as both felony murder counts against Atkinson were vacated by operation of law in light of Atkinson's conviction for malice murder. See Malcolm v. State, 263 Ga. 369 (4) (434 S.E.2d 479) (1993). Furthermore, "possession of a firearm by a convicted felon does not merge into a conviction for malice murder." Chester v. State, 284 Ga. 162, 162 (1) (664 S.E.2d 220) (2008), overruled on other grounds by Williams v. State, 287 Ga. 192, 194 (695 S.E.2d 244) (2010), and Harper v. State, 286 Ga. 216, 218 (1) (686 S.E.2d 786) (2009). In this regard, rather than purporting to merge the possession of a firearm by a convicted felon count into the felony murder and malice murder counts, the trial court should have instead merged the felon-in-possession count into the count relating to the use of a firearm by a convicted felon during the commission of another felony. See Jones v. State, 318 Ga.App. 105 (6) (733 S.E.2d 407) (2012). Likewise, the trial court also should have merged the possession of a firearm during the commission of a crime count into the use of a firearm by a convicted felon during the commission of another felony count. Id. Accordingly, we must vacate that portion of Atkinson's sentence purporting to merge the possession of a firearm by a convicted felon count into the felony murder and malice murder counts, as the felon-in-possession count should have instead merged with the use-of-a-firearm-by-a-convicted-felon count. We must also vacate his conviction for possession of a firearm during the commission of a felony, as this count also should have been merged into the use-of-a-firearm-by-a-convicted-felon count. However, because (1) Atkinson was never sentenced on the possession of a firearm by a convicted felon count and would not receive any sentence on that count even if this case were remanded (due to the necessary merger of that count with the use-of-a-firearm-by-a-convicted-felon count), (2) we are vacating the one improper conviction, and (3) Atkinson's sentence was otherwise proper in all other respects, [4] we need not remand this case to the trial court for resentencing. See, e.g., Schutt v. State, 292 Ga. 625 (2) (740 S.E.2d 163) (2013) (no remand for resentencing was necessary where this Court vacated count upon which defendant never should have been sentenced in light of necessary merger of that count with another).

         3. With respect to Atkinson's six enumerations relating to alleged prosecutorial misconduct, and fourteen additional alleged errors relating to the admission into evidence of similar transactions, problems with jury voir dire, the exclusion of an overhead slide from defense counsel's closing argument presentation, a witness testifying that the victim's wife died of a heart problem, the trial court reassigning Atkinson's original appointed counsel to another case, the jury seeing the indictment during deliberations, and Atkinson's due process rights allegedly being violated throughout the pretrial and trial proceedings, these arguments have been waived for purposes of this appeal, as a proper objection was not raised below with respect to these matters.[5] See Benton v. State, 300 Ga. 202, 205 (2) (794 S.E.2d 97) (2016) ("Generally, to preserve appellate review of a claimed error, there must be a contemporaneous objection made on the record at the earliest possible time. Otherwise, the issue is deemed waived on appeal") (citation and punctuation omitted); Ford v. State, 298 Ga. 560, 562 (2) (783 S.E.2d 906) (2016) ("The contemporaneous objection rule cannot be avoided by characterizing trial occurrences as examples of prosecutorial misconduct") (citation and punctuation omitted); Smith v. State, 268 Ga. 42 (3) (485 S.E.2d 189) (1997) (prior to passage of new Evidence Code, failure to object at trial to introduction of similar transaction evidence resulted in waiver of issue on appeal).

         In any event, with respect to the issues raised relating to the similar transaction evidence, even if Atkinson had raised a proper objection, the record reveals that the State gave proper notice of its intent to use these prior convictions at trial for the proper purpose of showing lack of mistake, course of conduct, and motive, and the trial court conducted a proper hearing on the admissibility of the prior convictions. See, e.g., Simmons v. State, 291 Ga. 705 (8) (a) (733 S.E.2d 280) (2012). We find no abuse of discretion in the trial court's decision to allow these prior convictions into evidence. Id.

         4. Atkinson has also raised three enumerations relating to alleged improprieties in the trial court's charge to the jury. Specifically, he contends that the trial court erred by giving a "sequential charge" on armed robbery, failing to inform the jury that the State had to prove every material allegation in the indictment, and instructing the jury with respect to its duty to believe the most believable witness. Although Atkinson did not object to these jury charges at trial, these issues are subject to review for plain error on appeal pursuant to OCGA § 17-8-58 (b). To satisfy plain error review:

First, there must be an error or defect - some sort of deviation from a legal rule - that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error - discretion which ought to be exercised only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

(Citations, punctuation and emphasis omitted.) State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 S.E.2d 232) (2011).

         Atkinson has failed to show any error, let alone plain error, in the trial court's jury charge. Indeed, the trial court specifically charged the jury on the State's burden to prove every material allegation in the indictment, and, considering the jury charge as a whole, the charge given on the jury's duty to believe the most believable witnesses would not have been confusing or otherwise improper. Santana v. State, 283 Ga.App. 696 (3) (642 S.E.2d 390) (2007). Furthermore, the trial court did not give an improper "sequential charge" by instructing the jury on the elements of armed robbery. See McNeal v. State, 263 Ga. 397, 397 n.4 (2) (435 S.E.2d 47) (1993) ("The essence of a sequential charge is judicial direction to consider possible verdicts in a particular sequence") (citations omitted). The charge here did not direct that the jury consider possible verdicts in any particular sequence. Instead, because Atkinson "was charged with criminal attempt to commit [armed ...

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