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Williams v. State

Supreme Court of Georgia

May 6, 2019

WILLIAMS
v.
THE STATE.

          Ellington, Justice.

         Demarcio Williams appeals his convictions for murder and attempted armed robbery in connection with the shooting death of James Akridge.[1] Williams contends that he received ineffective assistance of counsel, that the trial court erred in having improper communication with a juror and in denying his motion for a directed verdict, and that the prosecutor improperly commented on his silence. Finding no error, we affirm.

         Viewed in the light most favorable to the prosecution, the evidence presented at trial shows the following. On June 28, 2010, the victim, James Akridge, was shot in his home in Wrightsville. He called 911. A patrolman with the Johnson County sheriff's office and an officer with the Wrightsville police department responded and heard Akridge inside, calling for help. When the responding officers gained entry, they found Akridge kneeling in front of a couch and slumped across the seat cushions. Akridge, who was white, told the patrolman that he had been shot; he identified his assailant only as "a black guy." Within an hour of calling 911, Akridge died as a result of a gunshot wound to his lower back. At that point, the Georgia Bureau of Investigation took over the investigation.

         During the investigation, the GBI agent interviewed John Harris, who was a long-time friend of Williams. Harris disclosed that he had asked Williams, who is black, about rumors he was hearing that Williams had shot and killed "a white guy in Wrightsville." Williams told Harris that he and Jarvis Miller, who was known as "Jughead," met with a man in Wrightsville, supposedly for a drug deal but with the intention of robbing him. Williams told Harris that the man "was reaching around," Williams got scared, and he shot the man in the back, although he did not mean to shoot him. The GBI agent asked Harris if he would try to record a conversation with Williams on the same subject, and he agreed. Several days later, Harris spoke with Williams and secretly recorded the conversation. During that conversation, Williams confirmed several details consistent with their earlier conversation. Harris testified at Williams's trial, and the recorded conversation was also played for the jury.

         Antonio Surrey, an acquaintance of Williams and Harris, testified that, sometime after the murder, he gave Williams a ride. During that ride, Williams told him that he and "Jughead" had gone to a man's house to rob him and, when the victim started fighting back, Williams panicked and shot him. Surrey also had a conversation with Williams and Harris together, when Williams said that he robbed and shot the man. Another witness, Robert Jackson, testified that, while he was confined in the same jail as Williams, Williams told him that he and "Miller" went to rob the victim; Miller told Williams that the victim got a good look at their faces; Williams told the victim to put his hands behind his back and get on his knees; the victim said, "please, don't kill me"; and Williams put the gun to his back and shot and killed him.

         At trial, the State showed that, in the hour before Akridge called 911, he exchanged text messages with, and placed a telephone call to, numbers being used by Williams. Williams did not testify at trial.

         1.Williams does not challenge the sufficiency of the evidence. Nevertheless, as is our customary practice in murder cases, we have independently reviewed the record and conclude that the evidence was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Williams was guilty of the crimes for which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).[2]

         2. Williams contends he received ineffective assistance of counsel in several respects. To obtain relief based on ineffective assistance of counsel, an appellant must show both that his counsel's performance was constitutionally deficient and that this deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (III) (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). "To prove deficient performance, [an appellant] must show that his attorney performed at trial in an objectively unreasonable way considering all the circumstances and in the light of prevailing professional norms." Anthony v. State, 303 Ga. 399, 410 (9) (811 S.E.2d 399) (2018) (citation and punctuation omitted). To show prejudice, an appellant must prove that his lawyer's error was "so serious as to deprive [him] of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687 (III). To that end, an appellant "must show a reasonable probability sufficient to undermine confidence in the outcome that, but for counsel's alleged unprofessional errors, the result of the proceeding would have been different." Anthony, 303 Ga. at 410 (9) (citation and punctuation omitted). "An appellant must prove both prongs of the Strickland test, and if he fails to prove one prong, it is not incumbent upon this Court to examine the other prong. In reviewing either component of the inquiry, all factual findings by the trial court will be affirmed unless clearly erroneous." Winters v. State, 305 Ga. 226, 230 (4) (824 S.E.2d 306) (2019) (citations and punctuation omitted).

         (a) Williams contends that his counsel was ineffective for failing to ask that a certain juror be removed for cause. The record shows that, during voir dire, defense counsel asked the venire whether anyone had "a close relative or a friend or a son that's a policeman or a GBI agent or an FBI agent or a marshal." One prospective juror responded that her husband and the Sheriff were second cousins and that the families were near neighbors. Asked whether that would affect her ability to listen to the evidence, she responded with uncertainty.[3] Defense counsel did not move to strike the prospective juror for cause.

         Williams contends that his counsel should have moved to strike the juror for cause pursuant to OCGA § 15-12-163 (b) (4), which provides, in pertinent part, that the State or the accused may object to a juror on the basis that "the juror is so near of kin to the prosecutor . . . as to disqualify the juror by law from serving on the jury[.]"[4] The record does not support a finding, however, that the Sheriff had anything to do with obtaining any warrant or indictment in Williams's case[5] or could otherwise be deemed "the prosecutor" in the case. Stokes v. State, 281 Ga. 825, 828-829 (2) (c) (642 S.E.2d 82) (2007) (a juror's mother who was employed as a victim/witness coordinator for the district attorney's office was not a prosecutor under OCGA § 15-12-163 (b) (4), and a juror's girlfriend who was employed as an assistant district attorney was not herself the prosecutor in the defendant's case and was not related by marriage to the juror under OCGA § 15-12-163 (b) (4)); Bryant v. State, 270 Ga. 266, 271 (4) (507 S.E.2d 451) (1998) (a juror's son-in-law, a GBI agent who investigated the victim's murder, was not a prosecutor under OCGA § 15-12-163 (b) (4), "but rather merely an officer of the State assigned to investigate the crime for which the appellant was being tried" and "a potential witness at trial"). Therefore, a motion to strike the juror on the only basis Williams asserts would have been meritless, and the failure to make a meritless motion to strike does not constitute ineffective assistance of counsel. Veal v. State, 301 Ga. 161, 166 (2) (800 S.E.2d 325) (2017).

         (b) Williams contends his counsel was ineffective for failing to object to the State's motion to strike a juror for cause. The record shows that, at the end of voir dire, a prospective juror, R. M., approached the prosecutor and defense counsel and told them that she knew the girlfriend of Williams's accomplice, Jarvis Miller, and that she knew something about the case just from knowing the girlfriend. The State moved that she be struck. Defense counsel responded, "I don't care."

         Williams contends that there was no evidence that R. M. had an opinion about the case that was so definite that it could not be changed by the evidence, and, therefore, counsel should have objected to the State's motion to strike R. M. for cause. It is well settled that a defendant has no vested interest in any particular juror, but rather is entitled only to a legal and impartial jury. Willis v. State, 304 Ga. 686, 701 (820 S.E.2d 640) (2018); Coleman v. State, 286 Ga. 291, 296 (5) (687 S.E.2d 427) (2009); Bell v. State, 276 Ga. 206, 207 (2) (576 S.E.2d 876) (2003). Nothing in the record shows that any juror sworn to hear Williams's case was not a legal and impartial juror. Therefore, pretermitting any deficiency in counsel's performance, Williams has not shown that any prejudice resulted from his counsel's failure to object to the State's motion to strike the prospective juror, R. M., for cause.

         (c) Williams contends his counsel was ineffective for failing to object to a private communication between the trial judge and a juror. The record shows that, after the jury was selected, the judge informed the prosecutor and defense counsel that he intended to tell a juror who was pregnant that she should just raise her hand if she needed a restroom break and that he would very briefly stop the proceedings until she returned to the courtroom. Neither counsel objected. Williams contends that, because there is no record of what the judge and the juror spoke about, this Court must assume that the communication was prejudicial to him. As we have explained, a criminal defendant's constitutional right to be present at and to see and hear all the critical proceedings which are had against him "is a fundamental right and a foundational aspect of due process of law." Ward v. State, 288 Ga. 641, 645 (4) (706 S.E.2d 430) (2011) (citation and punctuation omitted). "'Thus, where the accused is involuntarily absent from the proceedings, the trial judge should have no communications with a juror about the case, except as to matters relating to the comfort and convenience of the jury.'" Id., quoting Pennie v. State, 271 Ga. 419, 421 (2) (520 S.E.2d 448) (1999). Nothing in the record in this case shows that the judge made any comment to the juror outside the presence of Williams and his counsel other than telling the juror to raise her hand if she needed a restroom break, a communication relating to the comfort and convenience of the jury. Thus, pretermitting any deficiency in counsel's performance, Williams failed to carry his burden of showing that defense counsel's failure to object prejudiced him. Waldrip v. State, 266 Ga. 874, 879 (2) (471 S.E.2d 857) (1996).

         (d) Williams contends that his counsel was ineffective for failing to object or move for mistrial due to the prosecutor's comment on the defendant's pre-arrest silence during the State's closing argument. Specifically, he cites to the statement, "the response that you get is a combination of silence, which under the law is attached agreement sic[6]." Williams contends that a bright-line rule then in effect prohibited the State from commenting on a defendant's pre-arrest silence or failure to come forward, citing Mallory v. State, 261 Ga. 625, 629-630 (5) (409 S.E.2d 839) (1991), overruled on other grounds as recognized in Clark v. State, 271 Ga. 6, 10 (5) (515 S.E.2d 155) (1999), [7] and that, therefore, his counsel's failure to object to the comment constituted deficient performance. As to the prejudice prong of the Strickland analysis, he argues that leading a jury to draw a negative inference ...


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