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Johnson v. State

Supreme Court of Georgia

March 11, 2019


          BENHAM, JUSTICE.

         Appellant Akeem Johnson appeals his convictions stemming from the shooting death of Jamon Middleton and the aggravated assault of Emory Graham.[1] On appeal, appellant alleges his trial counsel rendered constitutionally ineffective assistance. Finding no reversible error, we affirm.

         In a light most favorable to upholding the jury's verdicts of guilty, the evidence shows as follows. On the night of October 7, 2011, and into the early morning hours of October 8, appellant, Middleton, and Graham were at a local nightclub. When the nightclub closed, Graham and Middleton, who were riding in a greenish-grey sedan, went to a nearby gas station. Appellant, who was driving a black SUV, also showed up there. Graham testified that as he was sitting in his car waiting on Middleton, who had gone into the gas station store, appellant entered the backseat of the car. Graham testified that appellant expressed anger at Middleton over a $20 debt for "weed." In an effort to defuse the situation, Graham paid appellant the money. Appellant exited Graham's car, returning to his own vehicle. When Middleton returned to the gas station parking lot, he and appellant exchanged some heated words. Eventually, Middleton re-entered Graham's car, and the two men drove away. Appellant followed Graham's car, pulling up alongside it at an intersection a few minutes later. Appellant shot into the passenger side of Graham's vehicle several times, killing Middleton.

         Once appellant opened fire, Graham testified he sped away from appellant's vehicle and was en route to a hospital to seek help for Middleton when the police stopped him for speeding. Graham informed the police of what had just transpired, leading police to commence an investigation. Upon being taken in for questioning, Graham identified appellant as the shooter. Meanwhile, Middleton was transported by ambulance to the hospital. The medical examiner testified Middleton died from a bullet wound to the chest. Police recovered a video recording from the gas station's surveillance system corroborating Graham's description of the activities that took place there minutes before the shooting, as well as recovered video recordings from the City of Savannah's street surveillance system depicting the shooting. These recordings were played for the jury.

         1. Appellant does not dispute that the evidence was legally sufficient to sustain his convictions. Nevertheless, we have independently reviewed the record and conclude that the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that appellant was guilty of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

         2. Appellant contends trial counsel was constitutionally ineffective on the grounds that counsel: had a conflict of interest, gave improper advice regarding a plea offer from the State, and failed to object to the trial court's charge on possession of a firearm during the commission of a crime. We now examine each allegation of ineffective assistance in turn.

         (a) Appellant alleges trial counsel had a conflict of interest that rendered him unable to provide effective assistance.

Included within the constitutional right to counsel is the right to representation that is free from conflicts of interest. In order for appellant to prevail on his claim that his attorney was operating under a conflict of interest that violated his right to counsel, he must show an actual conflict of interest that adversely affected his attorney's performance.

(Citations omitted.) Turner v. State, 273 Ga. 340 (2) (a) (541 S.E.2d 641) (2001). An actual conflict may exist if counsel's duty of loyalty to his client is in conflict with his duty of loyalty to a third party. See White v. State, 287 Ga. 713 (4) (a) (699 S.E.2d 291) (2010) (counsel's loyalties were divided between her client and her employer). See also Handley v. State, 289 Ga. 786 (2) (c) (716 S.E.2d 176) (2011) (a conflict of interest may involve a "specific concern" that divides counsel's loyalties). "Whether a conflict of interest denied a defendant his right to effective assistance is a mixed question of law and fact, and we review the questions of law involved de novo." (Punctuation omitted.) Barrett v. State, 292 Ga. 160 (2) (733 S.E.2d 304) (2012).

         At the motion for new trial hearing, trial counsel testified that, prior to trial, he and the prosecutor had discussed trial counsel's representing the prosecutor in the prosecutor's divorce. Trial counsel stated that he disclosed this issue to appellant before trial. Trial counsel testified appellant asked him if the potential divorce representation could be used to disqualify the prosecutor from his case, to which trial counsel responded that, since appellant's criminal representation had come up first, he would forgo taking on the divorce case rather than seeking the disqualification of the prosecutor. Trial counsel testified that, upon discussing the matter, appellant stated he was fine with counsel's keeping the divorce case. Trial counsel testified that he was formally retained in the divorce action, and that it was filed after appellant's trial concluded. Trial counsel admitted the trial court was never informed of the matter before or during trial. Appellant, who also testified at the motion for new trial proceedings, denied he was aware of the issue until after his conviction.

         Even assuming that a conflict existed, appellant has failed to present any evidence of how counsel's performance was adversely affected by counsel's agreement to represent the prosecutor in a divorce action. See Tolbert v. State, 298 Ga. 147 (2) (d) (780 S.E.2d 298) (2015) ("The trial court was authorized to conclude that [appellant] failed to demonstrate that his lawyer's theoretical division of loyalties ripened into an actual conflict of interest that significantly and adversely affected the adequacy of the lawyer's representation of him at trial."). Having failed to carry his burden of proof, appellant's claim of ineffective assistance cannot be sustained.

         (b) On appeal, appellant alleges trial counsel advised him that the judge would likely sentence him to the maximum sentence of 20 years to serve[2] if he agreed to plead guilty to voluntary manslaughter.[3] He also alleged that trial counsel advised him that the jury would be instructed on voluntary manslaughter should he elect to go to trial; however, at trial, the trial court refused to give such an instruction. Appellant contends that but for the advice about the voluntary manslaughter instruction, he would have taken the plea.

          In order to prevail on this ordinary claim of ineffective assistance of counsel, appellant must

prove both that his counsel's performance was professionally deficient and that, but for the unprofessional performance, there is a reasonable probability that the outcome of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 694 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). We need not review both elements of this test if the appellant ...

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