Akeem Johnson appeals his convictions stemming from the
shooting death of Jamon Middleton and the aggravated assault
of Emory Graham. On appeal, appellant alleges his trial
counsel rendered constitutionally ineffective assistance.
Finding no reversible error, we affirm.
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,
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.
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)
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.
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
(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).
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
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
appeal, appellant alleges trial counsel advised him that the
judge would likely sentence him to the maximum sentence of 20
years to serve if he agreed to plead guilty to voluntary
manslaughter. 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
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 ...