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Bentley v. State

Supreme Court of Georgia

October 7, 2018

BENTLEY
v.
THE STATE.

          NAHMIAS, PRESIDING JUSTICE.

         Appellant Maurice Bentley was convicted of malice murder and other crimes in connection with a shooting that killed Michael Polite and injured Angela Johnson. Appellant contends on appeal that his trial counsel provided ineffective assistance by failing to object to an autopsy photograph, failing to stipulate to Appellant's prior convictions for rape and incest, and mentioning in front of the jury an earlier trial in this case. None of these claims has merit, so we affirm.[1]

         1. Viewed in the light most favorable to the verdicts, the evidence presented at Appellant's trial showed the following. On Christmas Eve 2013, Appellant spent the day with Crystal Frazier, whom he had known for about a week. That evening, Appellant dropped off Frazier at the house she shared with her four children and her mother Angela Johnson. Michael Polite, Frazier's ex-boyfriend and the father of her children, was at the house when Frazier arrived. Frazier planned to leave the house again to go to a Christmas party with Appellant, and she and Polite argued because he wanted her to spend the evening with him and their children.

         Later that evening, Appellant returned to the house to pick up Frazier for the party. He parked his SUV on the street in front of the house, sat in the passenger seat with the door open, and waited for her. Polite then went out to the front yard and told Appellant to leave because Frazier was going to stay with Polite and the children. Appellant and Polite argued, and Johnson, Frazier, and Frazier's sister Kimberly also went out to the front yard. Frazier stood near Appellant, who was still sitting in the passenger seat, while Polite, Johnson, and Kimberly stood in front of Appellant in the yard. Johnson tried to persuade Polite to return to the house by pulling on his arm. She then heard Polite say, "[O]h, you got a gun," and "[W]e ain't gotta do that." Polite stepped back toward the house and said that he and Appellant "could fight and get it over with." Appellant then stood up outside the SUV, pulled out a gun, and shot toward Polite as Polite began to run away. Polite was shot four times and collapsed near the side of the front yard; Johnson was shot once in the leg. Appellant, who was a convicted felon, then fled in his SUV.

         Moments later, paramedics arrived, and Polite and Johnson were taken to a hospital, where Polite died later that night from his gunshot wounds. Investigators interviewed Johnson, Frazier, and Kimberly that night; each of the women was shown a photo lineup and identified Appellant as the shooter. Investigators found two .380 shell casings near the area where Polite had collapsed and one .380 shell casing in the street in front of the house.

         Phone records showed that Appellant called his cousin moments after the shooting. The cousin testified that Appellant arrived at her house in his SUV later that night, parked it on the side of the house, and told her at some point that he was leaving to change his clothes, but did not return. Investigators found Appellant's SUV parked next to the cousin's house. Almost two weeks later, Appellant was found at another family member's house; he was arrested after he attempted to escape by climbing out a window.

         At trial, Johnson, Frazier, and Kimberly each identified Appellant as the shooter and testified that no one else had a gun that night. In addition, Frazier told investigators that Appellant carried a .380 pistol, and she testified that she had seen a gun in Appellant's glove compartment earlier on the day of the shooting. She also testified that shortly after the shooting, she called Appellant and told him that he had killed Polite, and Appellant responded that "he wasn't trying to kill him." During a call Appellant made from jail, which was recorded and later played for the jury, Johnson accused Appellant of shooting her and Polite and said that he needed to tell the truth; Appellant replied, "Yeah."

         The medical examiner who performed Polite's autopsy testified that Polite was shot once in the back of his shoulder, once near his pelvis, and twice in his lower back. The medical examiner removed four .380 bullets from Polite's body and testified that the location of the bullet wounds was consistent with Polite's having run away from the shooter. A firearms examiner testified that the three shell casings found at the crime scene were fired from the same .380 pistol and that all of the bullets recovered from Polite's body were fired from the same .380 pistol, although he could not determine whether the same pistol fired the shell casings and the bullets.

         Appellant did not testify at trial. His primary defense theory was that Frazier was the shooter and he was merely present at the scene. To support this theory, Appellant pointed to evidence that Frazier and Polite had a violent relationship and that Frazier had purchased a Davis .380 pistol in 2009. Frazier testified, however, that at the time of the shooting she no longer owned that pistol, and the firearms examiner testified that the bullets from Polite's body were not consistent with having been fired from a Davis pistol. Moreover, the prosecutor asked Frazier if she had shot Polite and Johnson, and she squarely denied it.

         Appellant does not challenge the legal sufficiency of the evidence supporting his convictions. Nevertheless, in accordance with this Court's practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Appellant guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). See also Vega v. State, 285 Ga. 32, 33 (673 S.E.2d 223) (2009) ("'It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.'" (citation omitted)).

         2. Appellant contends that his trial counsel provided ineffective assistance in three ways. To succeed on his claims, Appellant must show that his counsel's performance was professionally deficient and that he suffered prejudice as a result. See Strickland v. Washington, 466 U.S. 668, 687 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). To establish deficient performance, Appellant must show that his lawyer performed his duties in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. See id. at 687-690. To prove prejudice, Appellant must demonstrate that there is a reasonable probability that, but for counsel's deficiency, the result of his trial would have been different. See id. at 694. "It is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.'" Harrington v. Richter, 562 U.S. 86, 104 (131 S.Ct. 770, 178 L.Ed.2d 624) (2011) (quoting Strickland, 466 U.S. at 693). Rather, Appellant must establish a "reasonable probability" of a different result, which means "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. Finally, we need not address both parts of the Strickland test if Appellant makes an insufficient showing on one. See id. at 697.

         (a) Appellant asserts that his trial counsel provided ineffective assistance by failing to object to the admission of an autopsy photo. Because the objection to the photo that Appellant says his counsel should have made would have been meritless, this claim fails.

         The photo, which was admitted into evidence during the State's direct examination of the medical examiner who performed Polite's autopsy, showed Polite's back with rods inserted into his four gunshot wounds to approximate the trajectories of the bullets that struck him. Appellant argues that his trial counsel should have objected to the photo on the ground that its admission was precluded by the evidence rule announced in Brown v. State, 250 Ga. 862 (302 S.E.2d 347) (1983). In Brown, this Court declared that "[a] photograph which depicts the victim after autopsy incisions are made or after the state of the body is changed by authorities or the pathologist will not be admissible unless necessary to show some material fact which becomes apparent only because of the autopsy." Id. at 866.

         We recently held, however, that Brown's judge-made, categorical exclusionary rule was abrogated by Georgia's new Evidence Code. See Venturino v. State, __Ga.__, __ (830 S.E.2d 110, 116) (2019). See also State v. Orr, 305 Ga. 729, 739 n.8 (827 S.E.2d 892) (2019). Because the trial of this case occurred years after the new Code took effect, any objection to the autopsy photo based on Brown would have been meritless. See Jackson v. State, __Ga.__, __ (830 S.E.2d 99, 108) (2019) (explaining that an appellant "cannot prevail on a claim of ineffectiveness on the basis that his trial counsel failed to rely on a case that was not applicable to his trial"). See also Lockhart v. Fretwell, 506 U.S. 364, 366 (113 S.Ct. 838, 122 L.Ed.2d 180) (1993) (concluding that the defendant could not establish Strickland ...


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