Kevon Brown was found guilty of murder, felony murder,
aggravated assault with a deadly weapon, possession of a
firearm by a convicted felon, and possession of a firearm
during the commission of a felony, in the shooting death of
the victim, Rodricus Morgan. He asserts on appeal that he was
denied the right to the effective assistance of trial
counsel. We disagree and affirm.
in the light most favorable to the verdict, the evidence
showed that in the early morning hours of April 22, 2008, an
officer was informed that the victim had been shot and was
lying on a sidewalk face down. The victim died from a gunshot
wound to the back that went through his heart. A bullet
recovered from his body was consistent with being fired from
a .357 Magnum. Three days later, Benjamin Miller told police
that he was related to Brown by marriage, and regularly
bought drugs from him. Earlier on the day of the shooting,
Miller had approached Brown about buying drugs. When Brown
asked him why the victim was on the corner and whether the
victim was selling drugs, Miller, who also knew the victim,
assured Brown that the victim was only on the corner because
he "just got off work." Miller stopped and talked
to the victim briefly, and although he contemplated telling
the victim to "get off that corner, " he started
walking away. Moments later, Miller heard Brown and the
victim arguing, and witnessed Brown shoot the victim as he
turned to run. Miller explained that he did not immediately
report what he had witnessed because he "was kind of
fearful for [his] life."
second witness, Gary Lamb, was awakened by Brown and the
victim. Lamb knew Brown as a drug dealer who carried a .357
Magnum, and knew the victim from the neighborhood. Lamb heard
Brown say, "all right, man, go ahead, go ahead, "
and then witnessed Brown fire two shots at the victim as the
victim turned to run away. Lamb explained that he did not
come forward with what he witnessed for a couple of weeks
"because of the safety of [his] family" and because
he "had to do a lot of praying about it."
Although Brown does not challenge the sufficiency of the
evidence to sustain his convictions, it is this Court's
practice to examine the record to determine the legal
sufficiency of the evidence in murder cases. Having done so,
we conclude the evidence adduced at trial and summarized
above was sufficient to authorize a rational trier of fact to
find beyond a reasonable doubt that Brown was guilty of the
crimes of which he was convicted. See Jackson v.
Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61
L.Ed.2d 560) (1979).
State argues that the trial court improperly merged the
aggravated assault and possession of a firearm by a convicted
felon verdicts into the felony murder counts and failed to
recognize that the felony murder counts were vacated by
operation of law. This argument may have merit. See
Culpepper v. State, 289 Ga. 736, 737-738 (2) (715
S.E.2d 155) (2011) (felony murder convictions vacated by
operation of law where defendant convicted of and sentenced
for malice murder); Brown v. State, 302 Ga. 454, 456
(1) (c) (807 S.E.2d 369) (2017) (merger of aggravated assault
into malice murder conviction); Smith v. State, 300
Ga. 532, 537 (4) (796 S.E.2d 671) (2017) (possession of a
firearm by a convicted felon does not merge into malice
murder). However, as we recently decided, "when a merger
error benefits a defendant and the State fails to raise it by
cross-appeal, we henceforth will exercise our discretion to
correct the error upon our own initiative only in exceptional
circumstances." (Footnote omitted.) Dixon v.
State, 302 Ga. 691, 698 (4) (808 S.E.2d 696) (2017). The
State failed to raise merger error by cross-appeal (and the
record reveals that it also did not raise it at the
sentencing hearing). See Hood v. State, ___ Ga.___
(1) (d) (Case No. S17A1753; decided March 5, 2018). As there
are no exceptional circumstances here, we will not exercise
our discretion to correct any error in sentencing.
Brown asserts that he was denied his right to effective
assistance of trial counsel. In order to succeed on his claim
on ineffectiveness of trial counsel, Brown must prove both
that his counsel's performance was professionally
deficient and that the deficiency resulted in prejudice to
his case. See Strickland v. Washington, 466 U.S.
668, 687 (III) (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). To
establish deficient performance, he must show that his
counsel's acts or omissions were objectively
unreasonable, considering all the circumstances at the time
and in the light of prevailing professional norms. See id. at
687-690 (III) (A). In particular, a strategic and tactical
decision, like that about the extent of cross-examination,
"will not form the basis for an ineffective assistance
of counsel claim unless it was so patently unreasonable that
no competent attorney would have chosen it." (Citation
and punctuation omitted.) Romer v. State, 293 Ga.
339, 344 (3) (745 S.E.2d 637) (2013). And to establish
prejudice, Brown must show "a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different."
Id. at 694 (III) (B). "This burden, though not
impossible to carry, is a heavy one." (Citation
omitted.) Arnold v. State, 292 Ga. 268, 270 (2) (737
S.E.2d 98) (2013).
Brown argues that trial counsel was deficient for failing to
cross-examine Miller with his multiple prior arrests and
felony convictions. Brown asserts that although the jury
heard testimony of Miller's drug use, it should have been
presented with evidence showing that Miller had been
convicted of felony drug offenses in 1986 and 1990, burglary
in 1992, criminal trespass (reduced from theft by taking) in
1999, and deposit account fraud in 2001. At the hearing on
the motion for new trial, trial counsel did not recall that
Miller had prior convictions and did not explain why he did
not impeach Miller with these convictions, stating only that
it would be his normal practice to do so and if the
convictions were in the file, he would have been aware.
Counsel explained further that his trial strategy was to
challenge Miller's and Lamb's identification of Brown
as the shooter.
OCGA § 24-9-84.1 (b), applicable at the time of
Brown's trial, provided in part:
Evidence of a conviction under subsection (a) of this Code
section is not admissible if a period of more than ten years
has elapsed since the date of the conviction or of the
release of the witness or the defendant from the confinement
imposed for that conviction, whichever is the later date,
unless the court determines, in the interest of justice, that
the probative value of the conviction supported by specific
facts and circumstances substantially outweighs its
the convictions Brown points to in his brief were entered
more than 10 years prior to his trial here, with the
exception of the conviction for deposit account fraud which
was more than 9 years old, and he points to no evidence of
his release date for any time served.
has not shown that the convictions more than 10 years old
would have been admitted under the stringent limitations of
former OCGA § 24-9-84.1 (b). See Chance v.
State, 291 Ga. 241, 246-247 (7) (728 S.E.2d 635) (2012).
And the 9-year-old conviction still could have been excluded
under former OCGA § 24-9-84.1 (a) (1) had the trial
court determined that its probative value was outweighed by
its prejudicial effect to the witness.
had one or more of Miller's convictions been admissible
under former OCGA § 24-9-84.1, we cannot say that trial
counsel acted objectively unreasonably in not trying to admit
them. Instead, trial counsel effectively cross-examined
Miller about his recent criminal drug use, eliciting
Miller's admission that he bought drugs four or five
times a day for about the past 10 years, regularly bought
drugs from Brown, and that he had used drugs 45 minutes
before witnessing the shooting. Counsel used this evidence
and the fact that the shooting took place in the early
morning hours to argue that the witnesses identified the
wrong person as the shooter, and asked why Miller waited days
to contact the police. See Romer, supra, 293 Ga. at
344-345 (3) (a).
Brown has failed to show a reasonable probability that the
outcome of the trial would have been different had this
evidence been admitted. Miller was not the only witness to
the shooting. Lamb, who knew Brown, also identified him as
the shooter and had previously observed Brown with the same
type of gun used in the murder. Under these circumstances, in
light of counsel's cross-examination of Miller, Brown has
failed to show a ...