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Shelton v. State

Court of Appeals of Georgia, Third Division

June 24, 2019

SHELTON
v.
THE STATE.

          DILLARD, C. J., GOBEIL and HODGES, JJ.

          Dillard, Chief Judge.

         Following a trial by jury, Kirk Connells Shelton was convicted on one count of armed robbery and three counts of aggravated assault. Shelton appeals from these convictions, arguing that (1) the admission of his co-defendant's statement to law enforcement violated his right to confrontation; (2) his right to appeal has been denied by the omission of the co-defendant's recorded statement from the appellate record; (3) the trial judge erred by refusing to recuse himself in light of his history with Shelton's family; and (4) he received ineffective assistance of trial and appellate counsel. For the reasons set forth infra, we affirm in part, vacate in part, and remand to the trial court for proceedings consistent with this opinion.

         Viewed in the light most favorable to the jury's guilty verdict, [1] the record shows that on July 6, 2009, the victim walked to a store to purchase cigarettes and liquor when he encountered Shelton, Michael Jefferson, and A. E. (a juvenile). While the victim was en route home in a secluded area along a railroad track, the trio physically attacked him with Shelton landing the first blow and Jefferson repeatedly punching him as he struggled with Shelton. A. E. struck the victim with a large stick, hit him, kicked him, and pulled on his backpack. The three perpetrators then made off with the victim's backpack, which contained cash, credit cards, military identification, cellular phone, wallet, a bottle of liquor, and three packs of cigarettes.

         The victim returned home badly injured with multiple contusions and abrasions, and extensive damage to his eye and ear due to blunt-force trauma. Based upon his description of the perpetrators, law enforcement tracked down Shelton, Jefferson, and A. E. in the general area, finding Jefferson concealing the bottle of liquor in his shirt, and Shelton and A. E. each in possession of at least one of the stolen cigarette packs. A witness who had seen the trio and pointed law enforcement in their direction also saw them in possession of liquor, cash, and cigarettes not long after the robbery occurred, and he retrieved the victim's credit and identification cards, which A. E. discarded in the woods.

         Once apprehended, Shelton and Jefferson both gave recorded statements to law enforcement. Shelton and Jefferson were thereafter indicted and tried together, and A. E. testified against them. Shelton was convicted by the jury on all counts.

         On January 6, 2010, Shelton's trial counsel-a public defender with the Lookout Mountain Office of the Public Defender-filed a motion for new trial. Thereafter, from late 2010 through 2012, Shelton filed a number of pro se motions in the trial court and sent letters to the court indicating that he wished to have counsel appointed and that, if he was still represented by counsel who was pursuing the motion for new trial, he was unaware of who his counsel was because he was not being provided with information or receiving any communications. Then, in February 2013, the same attorney who initially filed the 2010 motion for new trial requested that the trial court hold a hearing on the motion.

         Although an order for production was issued on February 26, 2013, indicating that a motion-for-new-trial hearing would be conducted on March 19, 2013, no order on the motion was thereafter filed.[2] Instead, the next filing in the record is a second order for production issued on May 17, 2016, indicating that a motion-for-new-trial hearing would be conducted on May 31, 2016. This second order was prepared by a new attorney from the Lookout Mountain Office of the Public Defender. Then, on June 29, 2016, this second public defender filed an amended motion for new trial, adopting and restating the arguments from the 2010 motion and adding a claim that Shelton received ineffective assistance of trial counsel.

         On July 1, 2016, the trial court issued an order on the motion for new trial, indicating that on June 29, 2016, the same day the amended motion was filed, a hearing had been conducted. The trial court summarily denied Shelton's motion and concluded that he received effective assistance of trial counsel. On July 13, 2016, Shelton's second Lookout Mountain public defender filed a notice of appeal, requesting that "[n]othing should be omitted from the record on appeal," though not requesting a transcript.[3] But nothing was thereafter transmitted to this Court, and on June 11, 2018, a notice of substitution of counsel was filed in the trial court, noting that a new attorney was replacing yet a third attorney from the Lookout Mountain Public Defender's Office.

         Also included in the appellate record is a copy of a letter to the court reporter from Shelton's new counsel, who had been appointed by the Georgia Public Defender Counsel to represent Shelton on appeal. This letter, dated June 7, 2018, indicated that the trial court clerk's office had not yet transmitted the record to the Court of Appeals because the clerk's office was waiting for the filing of the June 29, 2016 motion-for-new-trial-hearing transcript. Thus, counsel requested an update on the status of preparing this transcript. The record was later certified by the trial court clerk on August 6, 2018, and the appeal was then docketed in this Court on September 10, 2018.

         On appeal from a criminal conviction, we view the evidence in "the light most favorable to the jury's verdict, and the defendant is no longer presumed innocent."[4]Thus, in evaluating the sufficiency of the evidence, we do not assess witness credibility or weigh the evidence, but only determine "if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offenses beyond a reasonable doubt."[5] And the verdict will be upheld so long as there is "some competent evidence, even though contradicted, to support each fact necessary to make out the State's case."[6] With these guiding principles in mind, we turn now to Shelton's enumerations of error.

         1. First, Shelton argues that his convictions should be reversed because the admission of Jefferson's recorded statement to law enforcement violated his Sixth Amendment right to confrontation when the statement implicated him and Jefferson did not testify at trial, and the trial court committed plain error in its admission of same. We disagree.

         The Supreme Court of the United States held in Bruton v. United States[7] that the admission of a powerfully incriminating extrajudicial statement of a co-defendant who does not testify can pose a substantial threat to a defendant's rights under the Confrontation Clause of the United States Constitution, [8] and such a threat cannot be cured by a limiting instruction.[9] But Bruton only excludes statements by "a non-testifying co-defendant that directly inculpate the defendant, and . . . is not violated if a co-defendant's statement does not incriminate the defendant on its face and only becomes incriminating when linked with other evidence introduced at trial."[10]

         Here, the record shows that on October 27, 2009, the State provided notice that it sought to try Shelton and Jefferson together. Shelton filed a motion to sever the next day, but this motion was never ruled upon by the trial court.[11] The trial court then conducted a pre-trial hearing concerning the voluntariness of Shelton and Jefferson's statements to law enforcement, and at the conclusion of the hearing, the court asked if there were any Bruton issues that needed to be addressed. In response, Jefferson's attorney said, "[O]n the face of this there is a Bruton problem, but quite frankly, Your Honor, we plan on Mr. Jefferson taking the stand, [and] that would cure the Bruton problem." The State then reacted with surprise to this statement:

I certainly didn't anticipate a Bruton objection on Jefferson's testimony, because he indicated that the stolen property he ended up with he got from a couple of Homies, who were not the two he was charged with [(i.e., Shelton and A. E.)], that he never laid a hand on the victim and he doesn't identify . . . the co-defendants, so I don't understand what the Bruton issue is.

         Although Jefferson's counsel once again expressed concern that there was a Bruton issue with his client's statement, when specifically asked by the trial court, Shelton's counsel responded that there was nothing the court "need[ed] to deal with[.]" Indeed, Shelton's counsel never interjected to make his own Bruton objection, or any other objection, at that time. Then, prior to the introduction of the recorded statement from Jefferson, Shelton again made no objection on Bruton grounds. And when Jefferson decided that he would not testify, Shelton still made no Bruton objection.

         Shelton argues that we should apply plain error to review of this enumeration of error. The State contends that, because defense counsel failed to lodge a timely objection at trial, Shelton waived this argument. But while the Supreme Court of Georgia has previously held that the failure to make a timely Bruton objection waives the issue for appellate review, [12] those cases predate the enactment of our "new" Evidence Code.[13] Shelton, too, fails to cite or discuss the new Evidence Code or cases decided since its enactment in making his assertion of plain error. We take this opportunity, once again, to remind lawyers of "the importance of relying upon the new Evidence Code, as well as its accompanying case law, in addressing evidentiary issues arising after the new code's effective date."[14] And under OCGA § 24-1-103 (d), courts may "tak[e] notice of plain errors affecting substantial rights although such errors were not brought to the attention of the court."[15] With this standard in mind, we will now consider Shelton's contention that the admission of Jefferson's statement violated his rights under the Confrontation Clause.

         In the approximately 20 minutes that encompassed Jefferson's recorded statement, not once did he refer to A. E. or Shelton by name. Instead, he repeatedly denied having anything to do with the attack on the victim and told the officer that he obtained the whiskey he possessed from a "couple of homies" who were not A. E. or Shelton. And each time the officer asked Jefferson who perpetrated the attack and robbery, he refused to answer other than to deny having any involvement in attacking the victim. Moreover, when the officer directly asked Jefferson "what happened," Jefferson responded that he had nothing to tell because he was not there during the attack. Rather than implicate Shelton, Jefferson instead refused to acknowledge having any information about who attacked and robbed the victim. Accordingly, his statement did not violate Bruton because it did not incriminate Shelton, and thus the trial court did not err, much less plainly err, in admitting this statement.[16]

         2. Next, Shelton argues that he was "denied his right to an appeal due to the failure of the trial court and the [S]tate to take steps to insure there was an accurate and complete transcript of the trial proceedings because the record does not include the statements given to the police by [Shelton] and his co-defendant[, ] which were admitted into evidence."[17]

         Within this enumeration of error, Shelton's appellate counsel explains that when the record was transmitted to him, it did not include a copy of the CD exhibit that contained the co-defendants' recorded statements. He then details making inquiries with the trial court clerk, district attorney's office, public defender's office, and other entities to inquire as to whether any of them had a copy of this exhibit. Finally, he explains that he has been in contact with the court reporter and that she was "looking for the CD." In his reply brief, filed on October 30, 2018, Shelton's counsel indicates in a footnote that since submitting the initial brief on September 21, 2018, he received a CD from the court reporter, but notes that it "still has not been added to the record of this case on appeal."

         The tortured post-trial procedural history and extreme delay in this case are, to put it mildly, frustrating and disappointing, and Shelton's current appellate counsel only joined the fray recently. Nevertheless, although Shelton blames the absence of the CD from the appellate record on the trial court and the State, the State met its burden by admitting the relevant exhibit into evidence, and on appeal it is the appellant who bears the burden of compiling a complete record.[18]

         While a prior attorney filed Shelton's notice of appeal in 2016, his current counsel never filed a motion to supplement the record and has never sought to remand the case for completion of the record. Nevertheless, out of an abundance of caution, this Court contacted the trial court clerk's office ...


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