Marquis Graves was tried by a Cobb County jury and convicted
of murder, aggravated assault, and the unlawful possession of
a firearm during the commission of a felony, all in
connection with the robbery and fatal shooting of Michael
Bemus. Graves appeals, contending that the State failed to
present evidence legally sufficient to sustain his
convictions. Graves also claims that he was denied the
effective assistance of counsel at trial. Upon our review of
the record and briefs, we find no merit in these claims of
error, and we affirm.
Viewed in the light most favorable to the verdict, the record
shows that Graves was living at the Masters Inn motel,
located near SunTrust Park in Cobb County. On August 5, 2015,
Graves told the motel manager that he did not have enough
money to pay for his room but would come back to pay soon.
1:25 a.m. on August 6, Graves called for a taxi to pick him
up from the Sky Suites motel, which is near the Masters Inn.
Surveillance video recorded Graves walking from the Masters
Inn to the gas station next door and then to the Sky Suites,
where he was picked up by Bemus in his taxi around 1:45 a.m.
About 25 minutes later, Bemus was fatally shot in the back of
his head as he pulled into the parking lot of the Allround
Suites motel in Marietta. Surveillance video recorded
Bemus's taxi crashing into a parked car after Bemus was
shot and Graves (wearing a black sweatshirt over a long white
t-shirt) exiting the taxi alone. Graves walked from the crime
scene to the front desk of the Masters Inn, arriving just
after 3 a.m. At the front desk, he paid $41 in cash and
received a key card for entry into his motel room.
three hours later, police investigators executed a search
warrant for Graves's room. They discovered a black
sweatshirt that tested positive for gunshot primer residue.
In addition, DNA testing of a blood stain on Graves's
white t-shirt revealed the presence of both Bemus's and
trial, Graves admitted that Bemus gave him a ride from the
Sky Suites to the Marquis Place apartments in Marietta, and
he said that Bemus waited for him at Marquis Place while
Graves unsuccessfully attempted to call a woman who he
believed lived there. According to Graves, a stranger
approached him at the apartment complex, said that he needed
a ride to the Allround Suites, and asked if he could share
the taxi. According to Graves, Bemus agreed to drop off the
unidentified man at the Allround Suites on the return trip to
the Masters Inn, but the man got into "a heavy
argument" with Bemus "on some racial stuff"
and shot Bemus as his taxi pulled into the Allround Suites.
Graves acknowledged that he was the man depicted in the
surveillance recordings who can be seen exiting the taxi
after it crashed. Graves also admitted that he walked from
the Allround Suites to the front desk of the Masters Inn to
pay his rent. Graves's testimony was not consistent with
the oral or written statements that he had provided to police
investigators, which included evolving claims about his
activities between 1:00 and 3:00 a.m. on August 6 that never
mentioned being a witness to a murder or meeting the stranger
at the Marquis Place apartments.
contends that the evidence presented at his trial is
insufficient to sustain his convictions and failed to
disprove his claim that Bemus was killed by an unidentified
stranger. See OCGA § 24-14-6 ("To warrant
a conviction on circumstantial evidence, the proved facts
shall not only be consistent with the hypothesis of guilt,
but shall exclude every other reasonable hypothesis save that
of the guilt of the accused."). But not every hypothesis
is a reasonable one, and the evidence "need not exclude
every conceivable inference or hypothesis-only those
that are reasonable." Merritt v. State, 285 Ga.
778, 779 (1) (683 S.E.2d 855) (2009) (emphasis in original).
Whether an alternative hypothesis raised by the defendant is
"reasonable" is a question committed principally to
the jury, "and where the jury is authorized to find that
the evidence, though circumstantial, was sufficient to
exclude every reasonable hypothesis save that of the guilt of
the accused, we will not disturb that finding unless it is
insupportable as a matter of law." Carter v.
State, 276 Ga. 322, 323 (577 S.E.2d 787) (2003).
Graves claimed at trial that he agreed to share his taxi with
a stranger he met at the Marquis Place apartments, that this
stranger killed Bemus (based on an unexplained racial
argument) while somehow avoiding being recorded (as Graves
was) on surveillance video, and that Graves chose not to
mention this person in his statements to the police after he
was arrested. The jury was authorized to reject this
hypothesis, and the evidence was sufficient to authorize the
jury to find Graves guilty of the crimes for which he was
convicted. See Jackson v. Virginia, 443 U.S. 307,
319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979); see
also Outler v. State, ___Ga.___(1) (a) (Case No.
S19A0158, decided April 29, 2019).
Graves claims that he was denied the effective assistance of
counsel when his lawyer failed to procure expert witnesses to
testify about two different matters and when his lawyer
failed to ensure that voir dire was recorded. To prevail on a
claim of ineffective assistance, Graves must prove both that
the performance of his lawyer was deficient and that he was
prejudiced by this deficient performance. See Strickland
v. Washington, 466 U.S. 668, 687 (III) (104 S.Ct. 2052,
80 L.Ed.2d 674) (1984). To prove that the performance of his
lawyer was deficient, Graves must show that his lawyer
performed his duties at trial in an objectively unreasonable
way, considering all the circumstances and in the light of
prevailing professional norms. See id. at 687-688 (III) (A).
See also Kimmelman v. Morrison, 477 U.S. 365, 381
(II) (C) (106 S.Ct. 2574, 91 L.Ed.2d 305) (1986). And to
prove that he was prejudiced by the performance of his
lawyer, Graves must show "a reasonable probability that,
but for his lawyer's unprofessional errors, the result of
the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome." Strickland, 466
U.S. at 694 (III) (B). This burden is a heavy one, see
Kimmelman, 477 U.S. at 382 (II) (C), and Graves has
failed to carry it.
First, Graves contends that his trial lawyer should have
procured an expert witness to testify about the "G.D.
Insane" gang. According to Graves's trial testimony,
the stranger who shot Bemus exclaimed "I'm GD
insane" at or around the time of the shooting. At the
hearing on Graves's motion for new trial, Graves's
purported expert witness testified that a gang known as
"G.D. Insane" was active in Cobb County and that
the (alleged) exclamation was consistent with "set
claiming," which is when a gang member identifies his
gang after committing a violent act. Had this evidence been
presented at trial, Graves now contends, there is a
reasonable probability that the jury would have reached a
begin, Graves has failed to establish deficient performance
with respect to this part of his ineffective assistance
claim. At the hearing on his motion for new trial, Graves did
not show that his trial lawyer knew or should have known that
"G.D. Insane" was the name of a gang or that a
reasonable lawyer should have even considered obtaining an
expert to explain that "I'm GD insane" did not
merely mean "I'm goddamn crazy." See Wright v.
State, 285 Ga. 428, 436 (6) (b) (677 S.E.2d 82) (2009).
Moreover, Graves also has failed to prove prejudice. His
lawyer did present evidence at trial that the area
in which the crimes occurred was "very dangerous"
and had "significant gang activity." And Graves has
not shown that expert testimony about "G.D. Insane"
would have rebutted the substantial evidence of his guilt:
primarily, the surveillance video recording that shows Graves
emerging alone from the taxi. Because Graves "has not
shown a reasonable probability that the result of his trial
would have been different had the expert witness testified at
trial, he has failed to establish ineffective
assistance." Parker v. State, 305 Ga. 136,
141-142 (4) (a) (823 S.E.2d 313) (2019).
Graves also says that his trial lawyer should have procured
an expert witness to explain how Graves's autism
prevented him from "react[ing] in a . . . stressed
manner after witnessing the murder" of Bemus. But Graves
failed to obtain such an expert for the hearing on his motion
for new trial (or otherwise show what such a witness would
have said), nor did Graves establish that he had been
diagnosed with autism. As a result, he cannot show either
that his lawyer performed deficiently when he failed to call
such an expert or that he suffered any prejudice as a result.
See Crowder v. State, 294 Ga. 167, 169 (3) (751
S.E.2d 334) (2013).
Finally, Graves claims that he was denied the effective
assistance of counsel when his trial lawyer failed to ensure
that voir dire was fully transcribed. But Graves does not
even suggest what error may have occurred during the
unrecorded portion of voir dire. He merely makes a passing
reference to one potential juror (who ultimately did not sit
on the jury) whom Graves's trial lawyer unsuccessfully
moved to strike for cause. As a result, Graves has not shown any
prejudice resulting from his lawyer's failure to ensure
that voir dire was recorded. See Domingues v. State,
277 Ga. 373, 374 (2) (589 S.E.2d 102) (2003) ("It cannot
be said that ...