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Wainwright v. State

Supreme Court of Georgia

February 4, 2019

WAINWRIGHT
v.
THE STATE.

          WARREN, JUSTICE.

         Zion 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.[1] 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.[2]

         1. 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.

         The 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.

         As they 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.[3] Wainwright then shot Sanusi in the leg and pointed the gun at Arnold.[4] 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.

         Aimes 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.

         Although 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).

          2. 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 then occurred:

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 ...

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