Wainwright and his co-defendant Qutravius Palmer were
convicted of murder and other crimes in connection with the
December 2013 shooting death of Xavier Arnold. On appeal,
Wainwright contends that the trial court erred in denying a
requested continuance for his lead counsel to be present for
the beginning of the State's direct examination of a key
witness, and that his lead trial counsel was ineffective in
cross-examining that witness. Wainwright also asserts that
the trial court erred by refusing to allow voir dire of the
jurors in panels of twelve and by refusing requests to
instruct the jury on accident, justification, and voluntary
manslaughter. Upon our review of the record, we conclude that
the aggravated assault that Wainwright was sentenced for
should have been merged, and so we vacate that conviction and
sentence. Finding no other reversible error, we otherwise
affirm the judgment of the trial court.
Viewed in the light most favorable to the jury's verdict,
the evidence presented at trial showed that on December 26,
2013, Xavier Arnold and his girlfriend Xenia Aimes-art
students who had been dating for about two years-decided to
drive to the Kirkwood neighborhood of Atlanta to take
pictures of graffiti near a bike path. On their way to
Kirkwood, they picked up Arnold's close friend, Ibrahim
Sanusi, and arrived at Kirkwood around 4:45 p.m. Upon their
arrival, Aimes saw two young men down the street. At trial,
Aimes testified that she did not initially think much of the
men's presence. But as the group of friends walked
towards the bike path, Aimes noticed that the two men were
following them and getting closer.
group kept walking straight; the bike path had a fence on one
side and MARTA tracks on the other. Near the end of the path,
the group stepped to the side to let the men pass, at which
point Arnold lit a cigarette. The men did indeed pass the
group and disappeared down a "little trail" into
the woods. The three friends then decided to turn around and
walk back towards their car.
turned around, the younger of the two men, Zion Wainwright,
who was 14 years old at the time, ran up to them and yelled
"[w]hat's up? Why are you acting so hard?" in
Arnold's face. The other man, Qutravius Palmer, stood
behind Wainwright. Arnold replied that the group of friends
was leaving and that Wainwright needed to "chill
out," but Wainwright and Palmer escalated the
confrontation. Wainwright pulled out a gun and pointed it at
Arnold's head while Palmer grabbed Arnold under the arms,
immobilizing him. Aimes testified that it seemed as though
the two men were working together as a "unit," and
it was "clear that when the younger guy pulls out that
gun, it is part of the plan for [the older guy] to go behind
[Arnold] and restrain him." Arnold fought back; he and
Palmer fell to the ground and wrestled as Arnold tried to
escape. As the two wrestled, Wainwright turned the gun on
Aimes and Sanusi and told Sanusi to empty his pockets, which
he did. Sanusi then heard Palmer tell Wainwright, "shoot
him," referring to Arnold. As Wainwright began to turn
back toward the two men fighting, Sanusi tried to stop
Wainwright, either by talking him down, stepping in front of
him, or grabbing him. Wainwright then shot Sanusi in the leg and
pointed the gun at Arnold. Aimes ran in front of the gun,
screaming, while Wainwright screamed at her repeatedly to
move. Aimes screamed "I'm not moving!" to which
Wainwright replied "move, hoe [sic]" before pushing
Aimes out of the way. Sanusi again heard Palmer tell
Wainwright to "shoot him." As Arnold began to stand
up, Wainwright shot him in the back of the head. According to
a neighbor who saw the shooting from her back deck,
Wainwright "bowed up" his chest and did a
"dance" like he was proud of what he had just done.
Palmer then snatched Aimes's phone away from her, and
Palmer and Wainwright took off together in the same
direction. Arnold was taken to Grady Hospital but died of his
injury shortly after arrival.
picked Wainwright out of a photographic lineup and identified
him at trial. The evidence also showed that phone numbers
registered to Palmer and to Wainwright's mother (which
was the phone number Wainwright used) were in contact with
each other around the time of the shooting, and showed pings
off cell towers near the location of the shooting. A woman
familiar with both defendants also informed law enforcement
that shortly after the shooting, she saw Palmer and
Wainwright near the bike trail and heard them discussing the
incident-including Wainwright stating that he shot a male
because Palmer told him to.
Wainwright has not challenged the sufficiency of the
evidence, it is our customary practice to review the
sufficiency of the evidence in murder cases, and we have done
so here. After reviewing the record of Wainwright's
trial, we conclude that the evidence presented against him
was sufficient to authorize a rational jury to find beyond a
reasonable doubt that Wainwright was guilty of the crimes for
which he was convicted. See Jackson v. Virginia, 443
U.S. 307, 318-319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
Wainwright contends that the trial court erred by denying a
request for continuance that his second-chair counsel, Scott
Fortas, made at trial. Specifically, Wainwright's lead
counsel, Ricky Morris, had not yet arrived to court on the
first morning that evidence was presented at trial. The judge
asked if anyone knew when Morris would arrive, and then asked
Fortas if he had heard from Morris. The following exchange
Mr. Fortas: No, your honor. I can just -- 20 seconds.
The Court: No, we need to get started. You know, Mr. Morris
is -- knows that we're supposed to start at 8:30. It is
8:50. All the jurors are here and I need to get started.
You know, I had this problem at calendar calls just trying to
get Mr. Morris in court on time. I think Mr. Johnson and Mr.
Clegg have been here numerous times for nine o'clock
calendar calls. Mr. Morris doesn't appear until 11:00 or
11:30 or after lunch. So we need to get started.
. . .
Mr. Fortas: Well, I understand that. But I mean, it really --
it just has to do with the fact that, you know, with the
witnesses the way that we (inaudible) . . . . These are Mr.
Morris's witnesses and -
The Court: I don't know that. Mr. Morris has chosen not
to tell me anything about his trial strategy and that's
his prerogative. But he has you here as co-counsel and we
need to get started.
. . .
Mr. Fortas: If I can just have -- if I can have ...