David Frank Moore was convicted of felony murder and related
offenses in connection with the shooting of Delray
Crittenden, Nyriek Williams, and Aaron Byfield; Crittenden
died as a result of the shooting. On appeal, Appellant
contends that insufficient evidence was presented to support
the jury's verdicts, that the trial court erred in
several respects, and that trial counsel rendered
constitutionally ineffective assistance.
in the light most favorable to the jury's verdicts, the
evidence presented at trial showed the following. On the
night of June 30, 2014, Crittenden, Williams, and Byfield
were at a house party in DeKalb County. During the party,
Crittenden and Williams went to purchase marijuana from
Appellant. They returned to the party after the purchase.
However, as the party ended in the early morning hours of
July 1, Crittenden, Williams, and Byfield went to
Appellant's house to purchase more marijuana.
drove, Williams sat in the front passenger seat, and
Crittenden rode in the rear, driver's-side seat. Once
they arrived at Appellant's house, Crittenden told
Byfield to back into the driveway. Williams saw Crittenden
pull out a pistol and place it in his lap as they backed in.
Both Byfield and Williams observed Appellant approaching
Crittenden's window, and Williams noted the two had a
heated discussion about Appellant giving Crittenden less
marijuana than Crittenden paid for.
Byfield heard a shot, he tried to pull away but was then shot
in the back and blacked out. When he regained consciousness,
he was alone in the car but the car had moved across the
street. Williams was also shot and fell to the ground in the
yard across the street. Williams lay on his back and saw
Appellant come and stand over him. Appellant then wiped
Williams' fingers on the cylinder of a revolver as
Williams heard Appellant say into his phone "I just shot
these n*****s". Appellant's neighbor observed a man
holding a revolver while standing over a younger man who had
been shot. The younger man, later determined to be
Crittenden, was bleeding and leaning against the
neighbor's car. Crittenden died of his wounds during
surgery; Appellant was not wounded during the incident.
.40-caliber semi-automatic pistol was recovered from the
front seat of Byfield's vehicle and a .38-caliber
revolver was recovered from near Appellant's driveway,
along with five spent cartridge casings from the revolver.
Testing showed that bullets recovered from the street,
Williams' body, and Crittenden's body were fired from
that same .38-caliber revolver. No .40-caliber spent shell
casings or projectiles were recovered at the scene. No
marijuana was found either.
Appellant contends that the evidence presented was
insufficient to support his convictions for felony murder and
related offenses. However, we review the sufficiency of the
evidence in the light most favorable to the jury's
verdict and defer to the jury's assessment of the weight
and credibility of the evidence. See Jackson v.
Virginia, 443 U.S. 307 (III) (B) (99 S.Ct. 2781, 61
L.Ed.2d 560) (1979). The evidence, as set forth above, was
sufficient to authorize a reasonable jury to find Appellant
guilty beyond a reasonable doubt of the offenses for which he
was convicted. See id.
Appellant also argues that the trial court erred in four
ways. For the reasons that follow, we disagree.
Appellant first argues that the trial court erred by refusing
to bifurcate his trial on the charge of possession of a
firearm by a convicted felon. However, Appellant's
felon-in-possession charge was directly related to one of his
felony murder charges because it served as a predicate
felony. Therefore, his motion to bifurcate was properly
denied as the motion "should be denied where the count
charging possession of a firearm by a convicted felon might
serve as the underlying felony supporting a felony murder
conviction." Ballard v. State, 297 Ga. 248, 251
(773 S.E.2d 254) (2015) (citation omitted); see also
Brown v. State, 295 Ga. 804 (3) (764 S.E.2d 376) (2014).
Appellant then argues that the trial court erred by refusing
to allow him to stipulate to his status as a convicted felon
because admitting the certified conviction for possession of
a firearm by a first offender probationer into evidence
unfairly prejudiced him. The failure to allow such a
stipulation may be an abuse of discretion where
"'(1) a defendant's prior conviction is of the
nature likely to inflame the jury's passions and raise
the risk of a conviction based on improper considerations,
and (2) the purpose of the evidence is solely to prove the
defendant's status as a convicted felon.'"
Morris v. State, 297 Ga. 426, 428 (774 S.E.2d 665)
(2015) (Citation omitted.). However, neither Appellant's
conviction for possession of a firearm by a first offender
probationer nor the various other minor offenses included in
the certified copy of the final disposition of that offense
were likely to inflame the jury's passions in this
case. See id. (prior convictions for
aggravated assault and interference with government property
were not of the nature likely to inflame the passions of the
jury during trial for murder and aggravated assault).
Accordingly, the trial court did not abuse its discretion by
preventing Appellant from stipulating to his conviction for
possession of a firearm by a convicted felon. See id.
Appellant also contends, relying on McKenzie v.
State, 293 Ga.App. 350 (2) (667 S.E.2d 142) (2008), that
the trial court erred because it instructed the jury to
consider the "intelligence" of witnesses. Appellant
did not object at trial, so the matter is before this Court
only for plain error review. See Sanders v. State,
290 Ga. 637, 640 (2) (723 S.E.2d 436) (2012). In
McKenzie, although the Court of Appeals suggested
that considering intelligence as a factor in determining
witness credibility "can be problematic," that
court concluded that the charge was not so "harmful as
to require reversal." McKenzie, 293 Ga.App. at
352 (2). Since McKenzie, this Court has noted the
same concern but determined such a charge not to be
reversible or plain error. See Ingram v. State, 297
Ga. 854, 857 (778 S.E.2d 781) (2015); Gamble v.
State, 291 Ga. 581, 583 (731 S.E.2d 758) (2012).
Therefore, Appellant has failed to show plain error.
Appellant argues that the trial court erred when it refused
to instruct the jury on his sole defense of justification
because there was evidence that Crittenden may have attempted
to rob Appellant. To support his claim, Appellant cites
witness statements that Crittenden told Byfield to back into
the driveway and that Williams testified that he saw
Crittenden pull out a pistol as they arrived at
Appellant's house. However, in Woodard v. State,
296 Ga. 803 (3) (b) (771 S.E.2d 362) (2015), this Court held
that the crime of possession of a firearm by a convicted
felon can preclude a justification defense under OCGA §
16-3-21. Id. Although a felon may be able to possess
a firearm in the case of a sudden emergency for the purpose
of defending himself, see Cauley v. State, 260 Ga.
324 (2) (c) (393 S.E.2d 246) (1990), no evidence of a sudden
emergency has been presented here. There was no evidence
presented that Crittenden attempted to rob Appellant or that
the gun was visible to Appellant. See Hunter v.
State, 281 Ga. 693 (2) (642 S.E.2d 668) (2007) (holding
that an instruction on self-defense was not necessary even
though there was evidence there was a gun under the
victim's leg when he was shot because "there [was]
no evidence of any threat so as to give rise to a reasonable
belief" that the defendant had to shoot the victim to
avoid death or great bodily injury to himself).
Lastly, Appellant makes four claims that his trial counsel
was constitutionally ineffective. We disagree.
succeed on these ineffective assistance of counsel claims, a
defendant must satisfy both prongs of the Strickland v.
Washington test. Strickland v. Washington, 466
U.S. 668 (III) (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984).
First, the defendant must show counsel's performance was
deficient by showing counsel made errors so serious that it
was not functioning as the "counsel" guaranteed the
defendant by the Sixth Amendment. See id. "The criminal
defendant must overcome the strong presumption that trial
counsel's conduct falls within the broad range of
reasonable professional conduct." Domingues v.
State, 277 Ga. 373 (2) (589 S.E.2d 102) (2003). Second,
the defendant must show the ...