NAHMIAS, Presiding Justice.
DeJuan Spratlin was convicted of malice murder and a firearm
offense in connection with the shooting death of Edward Cobb.
The trial court granted Spratlin a new trial, however, on the
ground that his trial counsel provided ineffective assistance
by failing to seek the exclusion of testimony and comments
about his post-arrest silence. The State appeals that ruling.
As explained below, we reverse the trial court's order.
In March 2012, a DeKalb County grand jury indicted Spratlin
and Isaiah Blackmon on charges of malice murder, felony
murder, aggravated assault on Cobb, aggravated assault on
Stanton Gilliam, and possession of a firearm during the
commission of a felony. Spratlin and Blackmon were tried
together beginning on October 28, 2013.
evidence presented at trial showed the
following. According to Briana Abner, she called
Blackmon on December 6, 2011, seeking to buy some marijuana.
Blackmon told her to pick up Spratlin, who had no car,
because Spratlin knew where to acquire the drugs. Spratlin
called his former high school classmate Gilliam and arranged
to purchase a pound of marijuana at Gilliam's house.
Abner picked up Spratlin and drove to the house; on the way,
Spratlin counted the $800 in cash that he was going to use to
buy the drugs. When they arrived, Spratlin and Abner entered
Gilliam's house and went with him to the kitchen. Abner
saw the candy and snacks that Gilliam and his housemates kept
there to sell to neighborhood children, and Spratlin bought
Abner some candy. Spratlin then called Blackmon to give him
directions to the house because Spratlin and Gilliam could
not agree on a price for the marijuana. At this point, Abner
left the house to go wait in her car.
to Gilliam, he called his friend and neighbor Cobb to come
over when Blackmon arrived because Gilliam felt uncomfortable
about having to deal with two people when he had been
expecting to be dealing with Spratlin alone. The men
continued to negotiate, and after Cobb arrived, Blackmon
agreed to pay Gilliam $1, 025 and handed over the money.
Blackmon then put the pound of marijuana in his coat, and the
four men left the kitchen and headed toward the front door.
They passed through a front room with a pool table in the
middle; Gilliam was behind Cobb on one side of the pool
table, and Spratlin was behind Blackmon on the other side.
Blackmon and Cobb reached the front door at the same time,
but as Cobb started to open the door, Blackmon turned, took a
gun out of his pocket, and said, "F**k this s**t, you
know what it is, go ahead and give me everything."
Gilliam threw the money onto the pool table near Spratlin,
and Cobb began to struggle with Blackmon over the gun.
Gilliam rushed over to help Cobb, but he heard a gunshot and
backed away. Blackmon then shot Gilliam in the upper leg;
Gilliam fell against a wall, and Blackmon shot him again in
the back of the leg. Gilliam ran to a bedroom and hid in a
closet, where he heard several more gunshots followed by the
alarm system's tone signaling that the front door had
been opened. Gilliam did not see Spratlin get involved in the
fight between Blackmon and Cobb, did not see Spratlin with a
gun, and did not see Spratlin take any money off the table.
who had been waiting in her car, testified that after she
heard the gunshots, she started to drive away when she saw
Spratlin run out of the house in a panic saying,
"They're trying to rob me." Spratlin got into
Abner's car and they drove away. Abner did not see
Blackmon leave the house, and she never saw Spratlin with a
two housemates, Karalo Jackson and Rikeshia Andrews, had been
asleep but woke at the sound of gunfire. Jackson found Cobb
lying on the floor in the living room and called 911. Jackson
and Andrews attempted to resuscitate Cobb, but he died from
his gunshot wounds. Gilliam was taken to the hospital and
recovered from his wounds. When the police searched the crime
scene, they found a number of small bags of marijuana in a
pair of Jackson's pants in his room. Gilliam later
testified that Jackson took 22 bags of marijuana out of
Cobb's pockets before the police arrived. Gilliam told
the police that Spratlin and his associate had come over to
purchase candy and then attempted to rob him. When shown a
photographic lineup that included both Spratlin's photo
and Blackmon's photo, Gilliam identified Spratlin (his
former classmate) but was unable to identify Blackmon.
Gilliam, Jackson, and Andrews did not tell the police that
Spratlin and Blackmon had actually come over to buy
marijuana, although they admitted it at trial.
Experts testified that Cobb had a grazing gunshot wound to
the back of the head. He was shot through his arm and into
his side by a .40-caliber bullet fired from close range. The
fatal wounds were caused by two .38-caliber bullets fired
into his back; there was no evidence about the range from
which those shots were fired. A bullet recovered from
Gilliam's leg was .40-caliber. Five more bullets and
eight cartridge cases - a mixture of .40-caliber and
.38-caliber - were found at the house. A firearms expert
determined that at least two guns had been fired during the
incident, including a .40-caliber pistol and a .38 Special or
.357 Magnum revolver; because some of the bullets and casings
were fragments, it was possible that a 10mm pistol was also
used. Gilliam, Jackson, and Andrews each testified that they
had no guns in the house, and Gilliam testified that he and
Cobb did not have any weapons and did not attempt to rob
Spratlin and Blackmon. A few days after the shooting,
Blackmon received text messages about two guns he was trying
to sell - a .40-caliber and a .357.
was tracked to Alabama, where - 16 days after the shooting -
detectives found him with Blackmon and an unidentified woman.
Both suspects fled when the plainclothes detectives
approached. Spratlin ran across the street but was quickly
apprehended; Blackmon was later found hiding a mile away.
days after the men were arrested, Gilliam saw Blackmon's
photo on a mugshot website for DeKalb County, where Blackmon
was listed as being charged with housing a fugitive. Gilliam
called one of the detectives investigating the shooting and
told him that "they had the shooter under the wrong
charge." While in jail, Blackmon told his mother over
the phone that he "gave the gun to someone to get rid
defendant testified. Spratlin's primary theory of defense
was mere presence. Spratlin's counsel acknowledged that
Spratlin set up the drug deal, but argued that he was
surprised by Blackmon's spontaneous decision to rob and
shoot Gilliam and Cobb.
During its case-in-chief, the State elicited testimony from
three witnesses regarding Spratlin's pretrial silence.
First, as mentioned above, Abner testified that after she
heard the gunshots, Spratlin ran toward her car and said,
"They're trying to rob me." The prosecutor then
asked the following questions:
Q. Ms. Abner, when DeJuan Spratlin jumped back in the car,
did he ever tell you to call 911?
Q. Did he ever tell you to drive to a police station so he
could tell them what happened to him?
Second, a detective from the Birmingham Police Department
("the Alabama detective") testified that he located
and arrested Spratlin in Alabama. The prosecutor then asked
the following questions:
Q. Did you ask [Spratlin] if he wanted to make a statement?