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Wimberly v. State

Supreme Court of Georgia

October 16, 2017

WIMBERLY
v.
THE STATE

          BOGGS, JUSTICE.

         Following a bench trial, appellant William Leroy Wimberly was found guilty of felony murder, aggravated assault, and possession of a firearm during the commission of a felony, in the death of Christopher Strickland.[1] He now appeals, asserting that the evidence was insufficient, that he received ineffective assistance of counsel, and that he was entitled to a new trial based on newly discovered evidence. For the reasons set forth below, we conclude these assertions are without merit and affirm.

         Viewed in the light most favorable to the verdict, the evidence showed that Josh Strickland lived with and dated Wimberly's daughter Brittney. A few days before July 29, 2014, Wimberly, while somewhat intoxicated, said in the presence of others that he would kill Josh if he "whipped" his minor granddaughter again. On July 29, Wimberly went to Josh and Brittney's home appearing intoxicated from alcohol and drugs. He sat and spoke with Josh, Brittney, and the victim, Josh's brother Christopher Strickland. At one point the four began arguing, and Brittney ordered Wimberly out of her home before she left for work.

         A few minutes after Brittney left, the victim went to Wimberly's residence, and after a while, the two returned to Josh and Brittney's home where Wimberly apologized to Josh for his earlier behavior. Not long after Wimberly, Josh, and the victim sat down to talk, Wimberly and Josh began arguing again. Wimberly pulled out a pocket knife, but Josh and the victim were able to disarm him and eject him from the home.

         About 15 minutes later, Wimberly returned to Josh and Brittney's home in his step-brother's truck.[2] The victim went outside to talk with Wimberly while Josh stayed inside. About two minutes later, the victim asked Josh to come outside, saying Wimberly wanted to talk. After Josh came out and stood in the doorway, he apologized to Wimberly for the fighting. The victim stood in between Josh and Wimberly throughout the conversation. Josh noticed that Wimberly had his hands behind his back. Wimberly stared at Josh the entire time and, after the conversation escalated, said, "well, I reckon I'm going to have to take both of you out." The victim rushed off the porch and tackled Wimberly. Josh rushed to help, but when he approached Wimberly and the victim, they had already separated. When Josh noticed Wimberly was holding a handgun, he began to wrestle with him and noticed blood on the ground. Josh was able to gain control of the gun, and after warning Wimberly "to stop several times, " shot Wimberly. Josh got up, looked at the victim who was on the ground and mumbling, and asked him "if he was shot and he told me, yes. He said, [Wimberly] shot me."

         Wimberly's father, who lived nearby with Wimberly, heard the commotion and came running. Josh made him get on his knees and held Wimberly and his father at gunpoint. Seconds later, a passerby pulled his vehicle up to the house. Josh ordered the driver out and instructed the passenger to call 911. The victim died at the scene of a gunshot wound to the center of his chest that pierced his heart and liver. The medical examiner testified that the entrance wound indicated that the range of fire was "intermediate, " meaning in general that the gun was fired at arm's length from the victim.

         1. Wimberly argues that the evidence is insufficient that he committed aggravated assault because there was no evidence that he is the one who shot the victim. He points to Josh's statement to police that Josh did not see him shoot the victim, and that Josh, the victim, and Wimberly were all struggling over the gun when he saw blood.

On appeal from a bench trial resulting in a criminal conviction, we view all evidence in the light most favorable to the trial court's verdict, and the defendant no longer enjoys the presumption of innocence. We do not re-weigh testimony, determine witness credibility, or address assertions of conflicting evidence; our role is to determine whether the evidence presented is sufficient for a rational trier of fact to find guilt beyond a reasonable doubt.

(Citations and punctuation omitted.) Dougherty v. State, 341 Ga.App. 120, 123 (799 S.E.2d 257) (2017).

         Josh testified that when he jumped off the front porch, the victim and Wimberly "had already started to separate. And I went to jump on [Wimberly] and that's when I saw the gun in his hand." Josh testified that he did not hear a shot, but as he began to tussle with Wimberly, the victim was already lying on the ground, not moving, "just kind of rolling a little bit, " and that is when he noticed blood on the ground. Josh stated further that his finger was not on the trigger because Wimberly's hand was on the gun and that he had to twist the gun out of Wimberly's hand. The evidence also showed that the gun was fired at the victim's chest at arm's length. The evidence therefore was sufficient for the trier of fact to find that it was Wimberly who fired the shot that killed the victim. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Wimberly asserts that his trial counsel was ineffective.

To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (104 S.C. 2052, 80 L.Ed.2d 674) (1984), an appellant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense.

(Citations and punctuation omitted.) Dunn v. State, 291 Ga. 551, 553 (4) (732 S.E.2d 524) (2012).

         (a) Wimberly argues that counsel should have called four witnesses who testified at the hearing on the motion for new trial. "Decisions about which witnesses to call at trial are matters of trial strategy and tactics, and such strategic and tactical decisions do not amount to deficient performance unless they are so unreasonable that no competent attorney would have made them under similar ...


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