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Hawkins v. State

Supreme Court of Georgia

September 23, 2019

HAWKINS
v.
THE STATE.

          Ellington, Justice.

         Quintavius 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.[1]

         Viewed 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.

         Mountavius 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.

         That 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.

         When 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 injured.

         After 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."

         After 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.

         Mountavius, 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.

         During 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.

         1. (a) 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).

         (b) 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).

         2. 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).

         To 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 ...


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