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Faust v. State

Supreme Court of Georgia

October 2, 2017



         Following the denial of his motion for new trial, as amended, Andray Faust appeals his convictions for felony murder while in the commission of an aggravated assault and possession of a firearm during the commission of a felony in connection with the fatal shooting of Marcellous Brown. He challenges the sufficiency of the evidence, an evidentiary ruling, aspects of the trial court's instructions to the jury, and the effectiveness of his trial counsel. Finding the challenges to be unavailing, we affirm.[1]

         1. Construed to support the verdicts, the evidence showed the following. Brown, Drema Chamblee, and Derek Mitchell would buy shoes at wholesale and sell them out of a car. After being robbed a couple of times, Brown and Mitchell began carrying .38 caliber revolvers for protection. About three days before Brown's death, they were selling shoes at a gas station when they met Faust, discussed shoes, and exchanged phone numbers. On June 6, 2006, Faust called Brown and requested shoes in a certain size. Brown and Chamblee arrived at an apartment complex to attempt to close the sale with Faust. Brown and Faust began to discuss the shoes and their prices. Faust called over a friend, Kevin Milton, who began to haggle with Brown over pricing, and then Faust walked away.

         According to both Chamblee and Milton, Faust came running back toward the car, aiming a rifle at Brown. Brown immediately pulled his pistol out, grabbed Milton in a headlock, and put the pistol to Milton's head. Faust then fatally shot Brown in the chest. Milton jumped into the back of the car and ran out the other side, and Faust also fled, [2] leaving for Florida just two days later and being apprehended in Tampa on July 26, 2006. Although Faust explained that he went to Florida as part of his employment with a stone mason, that employer denied that he was doing any work out of state at the time. At trial, Faust admitted that he killed Brown, but testified that during negotiations for a purchase by Brown of crack cocaine, Brown drew his weapon first, held Milton at gunpoint, and demanded the drugs. According to Faust, he retrieved his rifle, Brown fired at him first, and Faust then shot Brown.

         Faust argues that the evidence presents a classic example of "he said, she said" and that the State failed to corroborate its theory that Faust's motive was robbery, while he presented evidence of self-defense and defense of another. When we review the sufficiency of the evidence, however, we do not re-weigh the evidence or resolve conflicts in witness testimony, but instead we defer to the jury's assessment of the weight and credibility of the evidence. Mosley v. State, 300 Ga. 521, 523 (1) (796 S.E.2d 684) (2017). "As we have explained many times before, conflicts in the evidence, questions about the credibility of witnesses, and questions about the existence of justification are for the jury to resolve." Anthony v. State, 298 Ga. 827, 829 (1) (785 S.E.2d 277) (2016) (citation and punctuation omitted). "And, any lack of evidence of motive . . . is not fatal to a finding of sufficiency. Indeed, it is not necessary for the State to prove motive to establish the crime of felony murder." Grant v. State, 298 Ga. 835, 836 (1) (785 S.E.2d 285) (2016). See also Romer v. State, 293 Ga. 339, 341 (1) (b) (745 S.E.2d 637) (2013) ("while evidence of motive for the homicide is always relevant in a murder trial . . ., the State is not required to prove the defendant's motive for killing the victim to sustain a murder conviction, since motive is not an essential element of the crime" (emphasis in original)). Chamblee and Milton provided eyewitness accounts that were sufficient to authorize any rational trier of fact to find Faust guilty beyond a reasonable doubt of the crimes for which he was convicted.[3] See Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979); Cain v. State, 300 Ga. 614');">300 Ga. 614, 614-615 (1) (797 S.E.2d 466) (2017). The jury was not required to credit Faust's testimony that he fired his rifle in self-defense or in defense of Milton. See Cain, 300 Ga. at 615 (1). The question of Faust's justification was for the jury to determine, and it was free to reject his version of the events. See Mosley, 300 Ga. at 524 (1).

         2. Faust urges that the trial court erred in excluding evidence that Brown had methamphetamine on his person when he was killed. According to Faust, that evidence was relevant to support his theory of the case that Brown had been negotiating a drug deal with Milton when Faust had to defend himself and Milton, and to disprove the State's theory that Brown was an innocent shoe salesman being robbed of his hard-earned money. Under our precedent in cases like this one that were tried under the former Evidence Code, a murder victim's character generally was "irrelevant and, thus, inadmissible. Evidence that impugns a victim's character cannot be admitted unless it has some factual nexus with the conclusion for which it is being offered."[4] Walker v. State, 294 Ga. 851, 853 (3) (757 S.E.2d 64) (2014) ("Sheer speculation is insufficient. Otherwise, character evidence would be admitted routinely, disguised as relevant to whatever speculative theory the proponent managed to put forth." (citation omitted)). And we review the trial court's evidentiary ruling for an abuse of discretion. Moore v. State, 295 Ga. 709, 712 (2) (763 S.E.2d 670) (2014).

         In this case, the trial court admitted evidence that the drug ecstasy was found in Brown's system, but excluded evidence that 50 methamphetamine tablets were discovered in Brown's underwear. Faust did not present any evidence that Brown had taken methamphetamine, nor has Faust shown how Brown's possession of methamphetamine would make it more likely that he would attempt to purchase cocaine or to rob Faust and Milton. The only other apparent purpose of showing that Brown possessed methamphetamine and thus was not merely an innocent shoe salesman would be to impugn his character. We have found no connection between Brown's possession of methamphetamine and Faust's theory that he did not attempt to rob Brown but instead that Faust justifiably shot Brown when Brown attempted a robbery during a purchase of cocaine after taking ecstasy. Because Faust offers only speculation of any such factual nexus, the trial court did not abuse its discretion in excluding evidence of the methamphetamine found on Brown's person. See Moore, 295 Ga. at 712 (2). Moreover, the trial court admitted not only evidence that Brown had taken an illegal drug, but also testimony indicating that Brown had previously been involved in drug deals. Consequently, even assuming that Brown's possession of methamphetamine should have been admitted, the error was harmless, especially in light of the strong eyewitness testimony of Faust's guilt. See Bell v. State, 280 Ga. 562, 566 (4) (629 S.E.2d 213) (2006).

         3. Faust contends that the trial court committed plain error by failing to charge the jury on the definition of simple assault as part of its charge on aggravated assault with a deadly weapon. His contention is one of plain error because he concedes that this issue was not preserved for ordinary appellate review. In order for this Court to review the jury charge for plain error, the accused must not have affirmatively waived the alleged error or defect. Cheddersingh v. State, 290 Ga. 680, 683 (2) (724 S.E.2d 366) (2012). To constitute an affirmative waiver, the alleged deviation from a legal rule must have been intentionally relinquished or abandoned. Id. at 684 (2). In this case, the record shows that the trial court gave the charge requested by the State on OCGA § 16-5-20 (a) (1) (simple assault by "attempt[ing] to commit a violent injury to the person of another"). At the charge conference, the prosecutor asked the court to include the language of OCGA § 16-5-20 (a) (2) (simple assault by "commit[ting] an act which places another in reasonable apprehension of immediately receiving a violent injury"). Defense counsel opposed inclusion of this second method of simple assault and, after extensive discussion of the charge, never changed her position.[5] Based on this record, even if the failure to give a full charge on simple assault were plain error, Faust invited that error, and any contention of plain error has been waived for review.[6] See Brown v. State, 298 Ga. 880, 882 (3) (785 S.E.2d 512) (2016); Ashley v. State, 340 Ga.App. 539, 543 (4) (798 S.E.2d 235) (2017). See also Walker v. State, 301 Ga. 482, 485 (2) (a) (801 S.E.2d 804) (2017).

         For the same reason, Faust has also affirmatively waived his further contention that the trial court erroneously gave a jury instruction on robbery. That instruction was given as part of the charge on justification that defined "forcible felony." See OCGA § 16-3-21 (a). After considerable discussion of the issue with the prosecutor and the court at the charge conference, defense counsel specifically agreed to the inclusion of robbery, in addition to aggravated assault, in the charge on forcible felonies. Consistent with this agreement, after the trial court charged the jury, defense counsel objected only that the definition of robbery was too broad and was not limited to the defense theory of what Brown had done. Because Faust actually agreed to the giving of a robbery charge and objected to that charge only on a different ground from that which he now raises on appeal, appellate review is precluded unless the robbery instruction amounted to plain error which affected his substantial rights and was not affirmatively waived. See Simpson v. State, 298 Ga. 314, 316 (3) (781 S.E.2d 762) (2016); Woodard v. State, 296 Ga. 803, 806 (2) (771 S.E.2d 362) (2015); Carruth v. State, 290 Ga. 342, 347 (6) (721 S.E.2d 80) (2012) ("Georgia law requires that a criminal defendant inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. OCGA § 17-8-58 (a)."). In this case, the record shows that Faust intentionally relinquished any claim that no robbery instruction should have been given. Consequently, even if the instruction defining robbery was plain error, the error was invited, and any contention of plain error has been waived for review.[7] See Brown, 298 Ga. at 882 (3); Woodard, 296 Ga. at 810 (3) (a); Ashley, 340 Ga.App. at 543 (4).

         4. Faust asserts that his trial counsel provided constitutionally ineffective assistance in several respects. Under Strickland v. Washington, 466 U.S. 668, 687 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984), to prevail on this claim, Faust must show both that his "counsel performed deficiently and that, but for the deficiency, there is a reasonable probability that the outcome of his trial would have been more favorable. While the test imposed by Strickland is not impossible to meet, the burden is a heavy one." Speziali v. State, 301 Ga. 290, 293 (2) (800 S.E.2d 525) (2017) (citation and punctuation omitted).

To prove deficient performance, one must show that his attorney performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms. Courts reviewing ineffectiveness claims must apply a strong presumption that counsel's conduct fell within the wide range of reasonable professional performance. Thus, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course. If the defendant fails to satisfy either the "deficient performance" or the "prejudice" prong of the Strickland test, this Court is not required to examine the other.

Capps v. State, 300 Ga. 6, 8 (2) (792 S.E.2d 665) (2016) (citation omitted).

         (a) Faust first claims that trial counsel was ineffective for not objecting to the prosecutor's use of a .38 caliber revolver and an AK-47 as demonstrative exhibits that were intended to represent Brown's revolver and Faust's rifle, which were never recovered. See footnote 2, supra. Faust argues that the exhibits were not shown to be sufficiently similar to the guns actually used, that Milton testified the AK-47 did not look like Faust's rifle, and that the prosecutor used the exhibits to prejudice Faust by causing the jury to focus on the much larger size of Faust's weapon. Where, as here, there is no question that real guns were used during the crimes but were not recovered, the introduction of guns of the type believed to have been used was generally permissible in cases, like this one, to which the old Evidence Code applied. McCoy v. State, 273 Ga. 568, 570 (3) (544 S.E.2d 709) (2001). In this case, it was made clear to the jury that the exhibits were not the actual guns, and several witnesses testified to the similarities and differences between the exhibits and the weapons actually involved. See Mize v. State, 269 Ga. 646, 654 (10) (501 S.E.2d 219) (1998). Under these circumstances, an objection to the demonstrative exhibits would have been wholly without merit, and counsel was not ineffective for failing to make a meritless objection to the State's introduction of those exhibits. See Wesley v. State, 286 Ga. 355, 356 (3) (b) (689 S.E.2d 280) (2010).

         (b) Faust next claims that his trial counsel was ineffective when she failed to object to a detective's testimony that contained hearsay, an improper conclusion, and bolstering. After Chamblee and Milton had testified, the detective recounted the statement that Milton had given him. Although Faust first insists that all of that testimony amounted to hearsay that did not come within an exception, he admitted at the hearing on his motion for new trial that Milton's statement to the detective "was a little bit contradictory to what Mr. Milton testified to." Trial counsel testified to her opinion that Milton's statement was not inadmissible hearsay because he had testified and was subject to cross-examination. And Faust has never argued that Milton's statement lacked sufficient inconsistency or otherwise failed to fulfill the requirements to be admissible as a prior inconsistent statement. On motion for new trial, Faust failed to make any showing that, if his trial counsel had objected to Milton's statement, it would not have been admitted as a prior inconsistent statement.[8]See Welch v. State, 298 Ga. 320, 322 (4) (781 S.E.2d 768) (2016) (even if an out-of-court statement was hearsay under former OCGA § 24-3-1 (a), cf. current OCGA § 24-8-801 (d) (1) (A), it may have been admissible as a prior inconsistent statement under former OCGA § 24-9-83, cf. current OCGA § 24-6-613). Moreover, upon review of Milton's testimony and prior statement, we conclude that, if trial counsel had objected to the detective's testimony about Milton's statement, the trial court likely would have exercised its discretion to admit the evidence as a prior inconsistent statement. See Burney v. State, 299 Ga. 813, 824 (5) ...

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