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Cox v. State

Supreme Court of Georgia

August 19, 2019



         Following a jury trial, Joshua James Cox was convicted of felony murder and possession of a firearm during the commission of a felony in connection with the shooting death of Terrell Clark.[1] Cox appeals, arguing that the evidence was insufficient to support his convictions; that he was denied effective assistance of counsel; and that the trial court erred in denying Cox's motion for mistrial, erred in admitting Cox's custodial statement into evidence, and erred in denying Cox's motion to excuse the jury pool. We affirm.

         1. Cox claims that the evidence was insufficient to support his convictions because the evidence showed that he was involuntarily intoxicated and defending himself at the time of the shooting. When evaluating the sufficiency of evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime[s] beyond a reasonable doubt." (Citation and emphasis omitted.) Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). "This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence." (Citation and punctuation omitted.) Hayes v. State, 292 Ga. 506, 506 (739 S.E.2d 313) (2013). See also McNeely v. State, 296 Ga. 422, 425 (1) (768 S.E.2d 751) (2015) ("Resolving evidentiary conflicts and inconsistencies and assessing witness credibility are the province of the fact finder, not the appellate court." (Citations and punctuation omitted.)).

         Viewing the evidence in this light, the record shows that Cox and Clark met in early 2015 and became acquaintances who often smoked marijuana together. On July 13, 2015, Cox bought LSD ("acid") from Clark and then went to a friend's house where he took one "hit" of acid every hour starting at 8:00 p.m and ending at midnight.

         The next morning, Clark invited Cox to his home and the men smoked marijuana together. Around 9:00 a.m., one of Clark's neighbors heard two gunshots. She did not hear any argument or commotion prior to the shooting. After the gunshots, the neighbor saw a man, later identified as Cox, out in the roadway shouting into his phone. The evidence established that Cox had called 911, admitted to the dispatcher that he had just shot someone, and stated that he was going to lay his gun down in the road and wait until officers arrived. However, Cox refused to provide the dispatcher with his location. Cox dropped to his knees and threw his phone on the ground. He then stood abruptly, ran down the driveway, jumped into his truck, and sped off.

         Cox drove to his parents' house and, upon his arrival, Cox's father, Kenneth, who was also a police officer, noticed that his son was speaking and acting erratically, leading Kenneth to conclude that his son was under the influence of some kind of substance. Kenneth immediately removed all weapons from within his son's reach, including a gun that had fallen out of Cox's truck. Cox's strange behavior continued wherein he: physically attacked both of his parents, removed all of his clothing, jumped into a nearby pond, and stomped on the television remote control with his bare feet. His behavior had become so erratic that Kenneth ultimately tased and handcuffed his son until the police arrived.

         In the meantime, after receiving additional calls reporting the shooting, the police arrived at Clark's home and found him dead in the front yard. Officers located marijuana and a smoking device inside the home, and found two shell casings near Clark's body, which were later determined to have been fired from the handgun that had fallen from Cox's truck. The medical examiner concluded that Clark died as a result of two gunshot wounds: one to the head and one to the torso. Additionally, there was no evidence of soot or stippling on Clark's clothing, indicating that he was not shot at close range. Officers obtained blood samples from Clark and Cox, [2] and the jury heard evidence that the only drug present in both men's blood was marijuana.[3]

         Cox was initially arrested for the domestic dispute that occurred at his parents' house. However, while in jail, Cox admitted to a detention officer and a sergeant that he thought he had killed someone. Detectives interviewed Cox the next day. He admitted to police that he had purchased acid from Clark the night before the shooting and took five "hits" of acid. He told officers that he no longer felt the effects of the drug when he arrived at Clark's home the next morning before the shooting occurred. However, after he and Clark smoked marijuana, Cox told the investigators that he began to feel as if he was "tripping" again. Cox also told the investigators that he noticed that Clark acted strangely after they smoked marijuana, explaining that Clark "started talking crazy a** s**t," stating things like "this [is] it" and "this [is] the day."

         Cox stated that he needed to leave and the men walked out to Cox's truck. The vehicle was unlocked, but Clark had the keys. After they reached the vehicle, Clark put his hands on Cox's shoulder and back, which caused Cox to push Clark away. Cox said that Clark then started speaking in another language and growling, which "freaked him out." Cox said that Clark "came at" him and, as the unarmed Clark approached, Cox grabbed a gun from the door of his truck and shot twice. Cox told officers that, based on all the circumstances, he was scared and felt that he had no other option but to shoot Clark.

         Based on the foregoing, we find that the evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Cox was guilty of the crimes for which he was convicted. See Jackson, supra. The jury was free to reject Cox's claim that he was involuntarily intoxicated and acting in self-defense at the time that he shot and killed Clark. See Shaw v. State, 292 Ga. 871, 872 (1) (742 S.E.2d 707) (2013) ("[T]he issues of witness credibility and justification are for the jury to decide, and the jury is free to reject a defendant's claim that he acted in self-defense."). See also OCGA § 16-3-4 (c) ("Voluntary intoxication shall not be an excuse for any criminal act or omission.").

         2. Next, Cox alleges four instances of ineffective assistance of counsel. Specifically, he contends that trial counsel was ineffective for: (a) moving to exclude an independent toxicology report showing that Clark had LSD in his system on the day of the shooting; (b) failing to move for a mistrial after discovering that the jury had participated in improper communications; (c) failing to move for a mistrial or request a curative instruction after the State improperly commented on inadmissible evidence during closing arguments; and (d) failing to move for a mistrial or request a curative instruction after the State put forth improper victim impact evidence in its closing argument. Cox also alleges that the cumulative effect of trial counsel's errors substantially prejudiced him at trial.

         In order to establish constitutionally ineffective assistance, a defendant must show that his counsel's performance was professionally deficient and that, but for such deficient performance, there is a reasonable probability that the result of the trial would have been different. See Strickland v. Washington, 466 U.S. 668 (III) (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). If the defendant fails to satisfy either prong of the Strickland test, this Court is not required to examine the other. See Green v. State, 291 Ga. 579 (2) (731 S.E.2d 359) (2012). "A court considering a claim of ineffective assistance must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance." (Citation omitted.) Harrington v. Richter, 562 U.S. 86, 104 (IV) (131 S.Ct. 770, 178 L.Ed.2d 624) (2011). Indeed, "[t]rial tactics and strategy . . . are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them." (Citation and punctuation omitted.) McNair v. State, 296 Ga. 181, 184 (2) (b) (766 S.E.2d 45) (2014). "In reviewing the trial court's decision, we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts." (Citation and punctuation omitted.) Wright v. State, 291 Ga. 869, 870 (2) (734 S.E.2d 876) (2012). With these principles in mind, we review Cox's claims of ineffective assistance.

         (a) Pre-trial Motion in Limine

         During pre-trial proceedings, trial counsel successfully moved to exclude an independent toxicology report, which revealed that Clark had LSD in his system when he died. Cox alleges that this amounted to ineffective assistance because the report would have been helpful to his defense. However, trial counsel's strategic decision to move to exclude the report was reasonable.

         The record shows that part of the defense's theory was that the marijuana Cox and Clark smoked on the day of the shooting was laced, without Cox's knowledge, with NBOMe, a synthetic form of acid that, unlike LSD, does not show up on a general toxicology screen. In support of this theory, trial counsel called Dr. Gaylord Lopez as an expert witness at trial in order to explain how NBOMe affects the human body and what additional testing is needed in order to detect its presence in blood. Trial counsel relied upon this evidence to argue that Cox's involuntary ingestion of this synthetic drug affected his mental capacity at the time of the shooting, to explain Cox's bizarre behavior at his parents' house after the shooting, and to attack the reliability of the general toxicology screens introduced into evidence in the case.

         At the motion for new trial hearing, trial counsel explained that he sought to exclude the independent toxicology report showing LSD in Clark's blood because it would have hurt the defense's theory that both men had smoked marijuana laced with NBOMe on the day of the shooting, especially where the other toxicology reports only showed the presence of marijuana. Trial counsel's strategy was reasonable.

While other counsel, had they represented appellant, may have exercised different judgment, the fact that trial counsel chose to try the case in the manner in which it was tried, and made certain difficult decisions regarding the defense tactics to be employed with which appellant and his present counsel now disagree, does not require a finding that the representation below was so inadequate as to amount to a denial of effective assistance of counsel.

Lewis v. State, 246 Ga. 101, 105 (3) (268 S.E.2d 915) (1980). We agree with the trial court's conclusion that Cox has failed to show deficient ...

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