Hawkins was convicted of felony murder (predicated on
criminal attempt to commit armed robbery) in connection with
the death of Clayton Smith, criminal attempt to commit armed
robbery, and possession of a firearm during commission of a
felony. On appeal, Hawkins contends (1) he received
ineffective assistance of trial counsel, (2) the trial court
erred in finding that his third amended motion for new trial
was untimely, and (3) the trial court erred in denying him an
opportunity to present evidence in support of his third
amended motion for new trial. Although we find no merit in
these claims, the record shows that the trial court erred
when it imposed sentence on both the felony murder and the
predicate offense of criminal attempt to commit armed
robbery, which offense merged with the felony murder for
sentencing. Accordingly, we vacate Hawkins's conviction
for criminal attempt to commit armed robbery, and we
otherwise affirm his convictions.
in a light most favorable to the jury's verdicts, the
evidence shows the following. In early September 2015, Smith
returned to Georgia after purchasing approximately a half
pound of marijuana in California. On the afternoon of
September 17, 2015, Mountavius Holt encountered Smith, whom
he had not previously met, in a McDonald's restaurant
parking lot in Atlanta. Smith gave Mountavius a sample of his
marijuana, offered to sell him more, and the two men
exchanged contact information. Shortly thereafter, Mountavius
drove home with his brother, Rontavius Holt.
decided to rob Smith, but he needed help because he did not
own a weapon. He called his friend, Labrinzo Matthews, who
said that Hawkins had a weapon. Mountavius then called Smith
and offered to buy some marijuana. Smith gave him an address
where they could meet.
evening, Mountavius, Rontavius, Matthews, Hawkins, and Thomas
Way drove in Rontavius's car to a Hardee's restaurant
in Fairburn to meet Smith. Smith left his home around 9:00
p.m., carrying a handgun, and drove to the Hardee's in
his truck accompanied by his friend, Callie McNew.
Smith's truck arrived at the Hardee's, Mountavius
approached the truck while the other four men remained in
Rontavius's car. Mountavius got a sample of marijuana
from Smith, took it back to the car to show the others, and
he then returned to Smith's truck accompanied by Hawkins.
While Mountavius and Smith were arguing about the price of
the marijuana, Hawkins pulled out a handgun, and Smith pulled
out his gun in response. Hawkins shot Smith, who returned
fire. Smith suffered a fatal gunshot wound to the chest and
died at the scene. Hawkins's left hand and left hip were
the exchange of gunfire, Matthews, Rontavius, and Way drove
away in Rontavius's car, while Mountavius and Hawkins
fled on foot. The men in the car saw Mountavius and stopped
to pick him up. Way then answered a phone call from Hawkins,
who said that he had been shot and asked that they come and
get him. Witness Luis Cajarbajl, who was parked at a
restaurant near the Hardee's at the time of the shooting,
heard the gunshots and shortly thereafter noticed a man
wearing a Batman logo t-shirt and talking loudly on his
phone. Cajarbajl heard the man say that he was either
"shocked" or "shot." A few minutes later,
Cajarbajl saw the man get into a dark colored car, which he
described as "like [an] Intrepid or Charger."
the group picked him up, Hawkins reported that he had lost
his gun, so they stopped and searched for it without success.
They then drove to the south campus of Atlanta Medical Center
and carried Hawkins into the emergency room. At trial, an
officer identified the make and model of the car that took
Hawkins to the hospital, and in which Rontavius's
identification was later found, as a Dodge Intrepid.
Rontavius, and Matthews were arrested minutes after returning
to the car. Hawkins was interviewed at the hospital and taken
into custody. Way went directly home from the hospital and
was later interviewed by police, but he was not arrested, nor
was he later indicted.
the investigation of the crime scene, a GBI agent recovered
four cartridge casings, a Jimenez Arms 9mm handgun, a cap,
and a watch, among other things. A GBI firearms expert
determined that the four cartridge casings were fired by the
Jimenez Arms handgun. Officers also took swabbings of what
appeared to be multiple blood stains. A GBI blood analyst
confirmed that the swabbings contained blood, and a GBI
forensic biologist compared those swabbings with a buccal
swab taken from Hawkins. The forensic biologist determined
that the blood swabbings contained Hawkins's DNA. The cap
recovered at the scene also contained Hawkins's DNA.
Hawkins does not challenge the legal sufficiency of the
evidence supporting his convictions. Nevertheless, in
accordance with this Court's custom in murder cases, we
have reviewed the record and conclude that, when viewed in
the light most favorable to the verdicts, the evidence
presented at trial and summarized above was sufficient to
authorize a rational jury to find Hawkins guilty beyond a
reasonable doubt 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).
Hawkins does not raise any merger error, but we have
discretion to correct merger errors on direct appeal. See
Nazario v. State, 293 Ga. 480, 486-487 (2) (b) (746
S.E.2d 109) (2013). As noted in footnote 1, the trial court
sentenced Hawkins on the count of felony murder predicated on
criminal attempt to commit armed robbery as well as on the
count of criminal attempt to commit armed robbery. "When
the only murder conviction is for felony murder and a
defendant is convicted of both felony murder and the
predicate felony of the felony murder charge, the conviction
for the predicate felony merges into the felony murder
conviction." Culpepper v. State, 289 Ga. 736,
737 (2) (715 S.E.2d 155) (2011) (citation omitted). Neither
the indictment nor the charge to the jury specified that
Hawkins was being tried for two distinct attempts to commit
armed robbery, nor did the evidence show two distinct
attempts to commit armed robbery. Accordingly, the count of
criminal attempt to commit armed robbery merged with the
felony murder conviction, and Hawkins's conviction and
sentence for criminal attempt to commit armed robbery must be
vacated. See Green v. State, 283 Ga. 126, 130-131
(2) (657 S.E.2d 221) (2008); Bolston v. State, 282
Ga. 400, 401 (2) (651 S.E.2d 19) (2007).
Hawkins contends that his trial counsel provided ineffective
assistance when he failed to move to suppress the contents of
Hawkins's cellphone. To prevail on his ineffective
assistance claim, Hawkins must prove both that his trial
counsel's performance was professionally deficient and
that, but for the unprofessional performance, there is a
reasonable probability that the outcome of the proceeding
would have been different. See Strickland v.
Washington, 466 U.S. 668, 687, 694 (104 S.Ct. 2052, 80
L.Ed.2d 674) (1984).
prove deficient performance, Hawkins must show that his
lawyer performed in an objectively unreasonable way,
considering all the circumstances and in the light of
prevailing professional norms. See Strickland, 466
U.S. at 687-688. To show prejudice, Hawkins must demonstrate
"a reasonable probability that, but for counsel'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." Id. at 694 (III) (B). If Hawkins
fails to ...