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Manner v. State

Supreme Court of Georgia

December 11, 2017

MANNER
v.
THE STATE.

          Grant, Justice.

         Appellant Paul Manner was convicted of malice murder and related offenses in connection with the shooting death of Tracey Kingcannon.[1] On appeal, Manner contends that his trial counsel rendered ineffective assistance by withdrawing a request for a jury charge on the requirement for evidence corroborating accomplice testimony, and by failing to introduce evidence of the confessions of two of the State's witnesses to an earlier aggravated assault on the victim. Manner also contends that the trial court's failure to instruct the jury on impeachment by prior conviction related to a first offender guilty plea by State's witness Jermaine Davis was plain error; or, in the alternative, that his trial counsel was ineffective for failing to preserve her objection to the court's denial of her request for that instruction. For the reasons set forth below, we find that counsel's strategic decision to withdraw her request for an accomplice corroboration instruction was not objectively unreasonable under the circumstances of this case. Similarly, counsel's decision to rely on testimony about the State's witnesses' involvement in and confessions to an earlier aggravated assault on the victim, rather than seeking to admit the witnesses' written statements, fell within the broad range of reasonable trial strategy. And we find no error in the trial court's refusal to give the instruction on impeachment by prior conviction, and thus, no deficiency in counsel's failure to make a specific objection on this issue after the jury instructions were given.

         Last, Manner contends-and we agree-that the trial court erred in merging the two felony murder verdicts into the malice murder verdict, when the felony murder convictions should have been vacated by operation of law. We affirm.

         I.

         Viewed in the light most favorable to the jury's verdicts, the evidence shows the following. Kingcannon lived with his mother in the same neighborhood as Manner and several of the trial witnesses. On August 23, 2013, at about 1:00 a.m., Kingcannon's mother heard gunshots outside her home. When she ran to see what was happening, she saw Kingcannon come out of his bedroom into the hallway. He said he had been shot and asked her to call 911, and then fell to the floor. Kingcannon's mother called 911 and Kingcannon was transported to the hospital, but he could not be saved. He died of a gunshot wound from a 9 millimeter bullet that entered his right arm, penetrated his right lung, and damaged his diaphragm and liver.

         Investigating police officers observed bullet holes in the victim's bedroom wall and recovered 17 shell casings from the street outside the victim's home. Sixteen of those shell casings were from 9 millimeter rounds, while one was from a .380 caliber round. Police also found a High-Point 9 millimeter handgun in Kingcannon's bedroom. About two weeks before he was killed, Kingcannon had admitted to a friend that he had stolen a High-Point 9 millimeter firearm from Manner.

         Earlier that night, Manner pulled up to the home of two brothers, Brandon and Quintavius Hishida, who lived less than a mile from Kingcannon. Manner was driving an SUV with three passengers. According to Brandon, one of Manner's passengers was a man known to him as "YG, " later identified by police as DeMarcus Abrams. Both Brandon and Quintavius saw a firearm in the front area of the SUV; Quintavius identified the firearm as a black 9 millimeter handgun. Manner told the brothers that he was "fixing to go back there and get" Kingcannon because Kingcannon had stolen a pistol from him.

         A few hours later, minutes after the shooting, Brandon Hishida called Manner and asked where he was. Manner "said he was on his deck and he said he killed Tracey." When asked if Manner had used those very words, Brandon responded, "Said he killed that ni-a, 'I got the ni-a.'"

         The Hishida brothers had their own recent history of violent exchanges with the victim. In May 2013, the Hishida brothers and one of their cousins got into an altercation with Kingcannon. Immediately after the fight, a shot was fired-by whom it was not clear. Kingcannon's friend Darian Ross was present for the altercation and saw Brandon holding a gun. Reginald Vinson, who lived nearby, also witnessed the fight and heard the shot. Sergeant S.J. Rainey from the DeKalb County Police Department responded to the scene of the altercation, and collected 9 millimeter bullet fragments from the garage wall of Vinson's house. Brandon and Quintavius were later arrested and charged with aggravated assault for their involvement in the altercation. Those charges were still pending against both brothers at the time of Manner's trial.

         In early June 2013, the Hishidas reported to police that shots were fired outside their house and that they believed that Kingcannon was responsible. And on the evening Kingcannon was killed, not long before Manner drove by and spoke with the Hishidas, Kingcannon and two others fired guns at the Hishida brothers and their mother, Kyna Hishida, as the Hishidas were standing outside their home.[2] Both Brandon and Quintavius testified at trial and denied shooting into Kingcannon's house on the night he was killed.

         At trial, the State's sole eyewitness was Jermaine Davis. Davis testified that, near midnight on the night of the fatal shooting, Manner contacted him and asked if his .380 caliber pistol was still for sale. When Davis confirmed that the gun was still available, Manner asked Davis to come by to sell him the pistol and give him a ride around the corner. Davis drove to Manner's house to pick him up. When Davis arrived, Manner was standing outside with Abrams. Davis gave Manner the .380 pistol and Manner paid him for it, and then they all got into Davis's white Mercury Grand Marquis and Davis drove through the neighborhood.

         When Davis passed the victim's house, Manner and Abrams told Davis to stop the car. Manner and Abrams then got out of the car and ran back toward the victim's home. Davis heard gunshots, and when he looked in the rearview mirror, he saw both Manner and Abrams firing toward the victim's house. Manner had the .380 pistol he had purchased from Davis, and Abrams had a larger silver and black handgun. Davis observed Manner hitting the .380 as though it had jammed. After firing at the victim's house, Manner and Abrams returned to Davis's car and got in, telling him to "drive, drive, drive." As he was returning to Davis's car, Manner "cocked" the .380 pistol and a bullet came out, confirming Davis's suspicion that the pistol had jammed. Vinson, who lived two houses away from Kingcannon, heard shots fired and looked out his window. He saw a white car, which he described as a Crown Victoria, [3]drive slowly away from the victim's home.

         Manner, Davis, and Abrams returned to Davis's house. Davis testified that he repeatedly asked Manner and Abrams why they had shot into the victim's house, but Manner did not say anything except that it "had to be done." Abrams said that the victim had stolen something, and that they had to "teach him a lesson." Davis told Manner that he did not feel safe around him while Manner had a gun; he asked Manner for the .380 pistol back and Manner complied.

         Cellular telephone records line up with this chain of events. The records show that Manner received calls placing his cell phone in the area of the shooting-also, to be fair, the area of Manner's home-about 15 minutes before the shooting, and again at 1:09 a.m., a few minutes after the 911 call from Kingcannon's mother was dispatched. The 1:09 a.m. call was from Brandon Hishida's cell phone. A call placed from Manner's phone at 1:14 a.m. was routed through a cellular tower located outside Manner and Kingcannon's neighborhood and close to Davis's home; this evidence is consistent with Davis's testimony that he drove Manner and Abrams back to his house after the shooting.

         The day after the shooting, Abrams filed a police report stating that his 9 millimeter pistol had been stolen from his vehicle the night before. After Manner was taken into custody and charged with murder in connection with Kingcannon's death, Abrams visited Manner several times at the jail.[4]

         Although Manner does not challenge the sufficiency of the evidence supporting his convictions, it is our practice to review the record and assess the legal sufficiency of the evidence under the standard set out in Jackson v. Virginia.[5] We find that the evidence presented at trial was sufficient for a rational trier of fact to find Manner guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson, 443 U.S. at 319.

         II.

         Manner contends that his trial counsel was constitutionally ineffective in withdrawing her request for a jury instruction on the requirement for corroboration of accomplice testimony, while permitting without objection the court's instruction that generally, the testimony of a single witness is sufficient to establish a fact; and in failing to introduce evidence that the Hishida brothers confessed to aggravated assault charges stemming from the May 2013 altercation with the victim. To succeed on his claim that counsel was constitutionally ineffective, Manner must show both that his attorney's performance was deficient, and that he was prejudiced as a result. See Strickland v. Washington, 466 U.S. 668, 687 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984).

         Under the first prong of this test, counsel's performance will be found deficient only if it was objectively unreasonable under the circumstances and in light of prevailing professional norms. Id. at 687-690. And to meet the second prong, prejudice is demonstrated only where there is a reasonable probability that, absent counsel's errors, the result of the trial would have been different. A "reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Id. at 694.

         A. Accomplice Corroboration.

         Section 24-14-8 of the Georgia Evidence Code provides that although "[t]he testimony of a single witness is generally sufficient to establish a fact, " in felony cases where the only witness is an accomplice, the testimony of the accomplice alone is insufficient. In such cases, evidence corroborating the accomplice's testimony is required to support a guilty verdict. See Edwards v. State, 299 Ga. 20, 22 (785 S.E.2d 869) (2016). The corroborating evidence may be "slight, " and may be entirely circumstantial, as long as it is independent of the ...


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