Justia.com Opinion Summary: Defendant was convicted of malice murder and possession of a firearm during the commission of a crime while a convicted felon. On appeal, defendant contended his convictions were the results of ineffective assistance of counsel and of errors made by the trial court. The court held that the assistant district attorney's actions at issue did not qualify as prosecutorial misconduct authorizing a reversal of defendant's conviction; the trial court did not abuse its discretion in making the evidentiary ruling regarding a witness' testimony since the State was permitted to rehabilitate a witness whose credibility had been attacked and the testimony at issue was relevant; the trial court did not err in admitting certain tape recordings at issue; and that trial counsel did not render ineffective assistance. Accordingly, the judgment was affirmed.
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In the Supreme Court of Georgia
Decided: November 7, 2011
S11A0909. FORD a/k/a BEEBE1 v. THE STATE
BENHAM, Justice.
Scottie McCombs died on February 25, 2007, as a result of gunshot
wounds he received to his right eye, hand, thigh, hip, and foot as he approached
his parked car on a southwest Atlanta street. Appellant Demetrius Ford, also
known as Delrico Beebe, was arrested on July 7, 2007, and was convicted in
2009 of the malice murder of McCombs and possession of a firearm during the
commission of a crime and while a convicted felon. In his appeal he contends
his convictions are the results of ineffective assistance of counsel and of errors
made by the trial court.2
1. Shortly before his death, McCombs was living with Peronica Ford and
1
Appellant was tried under the name Demetrius Ford but testified his name is Delrico
Beebe. The jury returned guilty verdicts against Ford a/k/a Beebe, and the trial court imposed
sentence on Ford a/k/a Beebe.
2
The victim was killed on February 25, 2007, and appellant was indicted on October 16,
2007, for malice murder, felony murder, aggravated assault, and the two firearm possession
charges. The trial took place June 16-19, 2009, and concluded with the jury finding appellant
guilty of all charges. The trial court sentenced appellant on June 22, 2009, to life imprisonment
for the malice murder conviction and to two consecutive five-year terms for the firearm
convictions. The trial court merged the aggravated assault conviction into the malice murder
conviction, and the felony murder conviction was vacated by operation of law. Appellant filed a
motion for new trial on June 26, 2009, and amended it on October 12, 2010. A hearing was held
on the motion on October 25, 2010, and the trial court denied the amended motion on December
3, 2010. Appellant filed a timely notice of appeal on December 30, and the case was docketed to
this Court’s April 2011 term. The case has been submitted for decision on the briefs.
her children, five of whom were fathered by McCombs and two of whom were
fathered by appellant Ford. A convicted felon testified that he saw appellant
waiting for someone to exit a house about three blocks from appellant’s
residence, and saw appellant shoot the victim repeatedly shortly after the victim
left the house. The witness testified that appellant later told him he had shot the
victim because the victim had disciplined appellant’s son. Peronica Ford’s
mother and appellant’s son both testified that appellant had said he was going
to kill the victim two days before the victim was killed. The State and defense
counsel stipulated that appellant was a convicted felon on the day the victim was
killed. The evidence was sufficient to authorize a rational trier of fact to find
appellant guilty beyond a reasonable doubt of malice murder, possession of a
firearm by a convicted felon, and possession of a firearm during the commission
of a crime. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560)
(1979).
2. Appellant contends the assistant district attorney (ADA) engaged in
prosecutorial misconduct that adversely affected the outcome of the trial when,
on re-direct examination of Peronica Ford, he asked her whether she recalled
having seen appellant with a gun on an unspecified earlier occasion. Evidence
of the incident about which the ADA wished the witness to testify had been
ruled inadmissible earlier by the trial court because it did not qualify as evidence
of a purported similar transaction. After appellant objected to the ADA’s
question, the ADA stated his belief that defense counsel’s cross-examination of
the witness had “opened the door” to the ADA’s inquiry on re-direct. After both
2
sides consulted with appellate attorneys in their respective offices, the ADA
decided not to pursue the inquiry and the trial court sustained defense counsel’s
objection. Whether or not the ADA was correct in his belief that defense
counsel’s cross-examination authorized him to explore an incident that had been
ruled as not qualifying for admission as a similar transaction, appellant received
a favorable ruling on his objection and none of the details of the incident were
made known to the jury. Consequently, the ADA’s action did not qualify as
prosecutorial misconduct authorizing a reversal of appellant’s convictions. See
Willis v. State, 309 Ga. App. 414 (5) (710 SE2d 616) (2011).
3. Appellant next asserts the trial court abused its discretion when it
overruled appellant’s objections to Peronica Ford’s testimony on re-direct in
which she stated that appellant had shot her in the face with a pellet gun some
years ago.3 On cross-examination by defense counsel, Ms. Ford had denied
telling police that she had never seen appellant with a gun and defense counsel
had impeached her with her statement to police in which she stated she had
never seen appellant with a gun. On re-direct, the witness clarified that she had
not seen appellant with a gun when the victim was shot, but that she had seen
him with a gun when she and appellant were living together. Over objection
that the testimony was irrelevant, the witness was permitted to testify that
appellant had shot her with a pellet gun during an argument some years earlier.
The trial court did not abuse its discretion in making the evidentiary ruling since
the State is permitted to rehabilitate a witness whose credibility has been
3
This incident was not the incident that was the subject of Division 2, supra.
3
attacked, and Ms. Ford’s testimony concerning the earlier incident in which she
had seen appellant with a gun was relevant to explain her clarification. Fox v.
State, 289 Ga. 34 (3) (709 SE2d 202) (2011).
4. Appellant presented an alibi defense through his testimony and that of
several family members. During cross-examination by the State, appellant
denied that he was “on the phone with [his] mother, trying to get everybody in
the family on the same times” with regard to his alibi. In rebuttal, the State
presented recordings of appellant’s jailhouse telephone conversations with his
mother that took place during appellant’s pre-trial confinement.
In the
recording, appellant’s mother stated “we are all off time” and “we are all over
the place with time.” Appellant argues that the trial court erred in admitting the
tape recordings over appellant’s objections that the recorded conversation
allowed the jury to hear evidence that placed defense counsel’s integrity in issue
and allowed the jury to infer the appearance of impropriety and misconduct on
the part of defense counsel. After listening to the tape several times outside the
presence of the jury, the trial court stated it was not convinced the tape
impugned defense counsel’s character and agreed with the suggestion of the
assistant district attorney that, when the tape was played before the jury, it
would be stopped before defense counsel was mentioned by appellant or his
mother. There is nothing in the record that suggests the ADA did not comply
with the trial court’s ruling.4 Since the facts do not support appellant’s assertion
on appeal, there is nothing to review.
4
The contents of the audiotape were not taken down by the court reporter when it was
played at trial, and the audiotape was not a part of the appellate record docketed in this Court.
4
5. Appellant contends his convictions are the result of trial counsel’s
ineffective assistance.
To prevail on his claim of ineffective assistance of trial counsel,
appellant must show counsel’s performance was deficient and that
the deficient performance prejudiced him to the point that a
reasonable probability exists that, but for counsel’s errors, the
outcome of the trial would have been different.
Pruitt v. State, 282 Ga. 30 (4) (644 SE2d 837) (2007). Appellant cites as
deficient performance counsel’s failure to object to the ADA’s questioning of
Peronica Ford concerning appellant’s financial support of his children,
counsel’s failure to object to certain testimony from the lead detective in the
case and from a convicted felon, and counsel’s failure to request curative
instructions following the ADA’s decision not to pursue a line of questioning
on appellant’s prior use of a gun.5 “[A] court must indulge a strong presumption
that counsel’s conduct falls within a wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’”
Strickland v. Washington, 466 U.S. 668, 689 (104 SC 2052, 80 LE2d 674)
(1984).
(a) Appellant complains trial counsel rendered deficient performance
when she did not object to testimony from Peronica Ford that allegedly attacked
5
Appellant also contends counsel performed deficiently by failing to make a “proper
objection” when the trial court overruled her objection to testimony concerning appellant’s prior
use of a gun. However, as noted in Division 2, supra, defense counsel did object to the testimony
cited in appellant’s enumeration of error and that objection was sustained by the trial court before
the witness testified about the facts of the prior incident. There being no deficient performance
with regard to this allegation, it cannot support a finding of ineffective assistance.
5
appellant’s character. Ms. Ford testified that appellant had not provided
financial support for his children until she obtained a child support warrant,
pursuant to which appellant made a few payments. At the hearing on the motion
for new trial, defense counsel testified that she chose not to object to the
testimony because it showed the witness’s bias against appellant, a key issue in
counsel’s mind, and counsel knew appellant was going to testify and would
establish that he had provided for his children. In light of this reasonable
strategy, we cannot say counsel performed deficiently. Jennings v. State, 288
Ga. 120 (6c) (702 SE2d 151) (2010) (decision not to object to character
evidence so that jury could see witness’s bias against defendant was a
reasonable strategic decision).
(b) Appellant next sees ineffective assistance of counsel in defense
counsel’s failure to object to testimony given by the lead detective, which
appellant contends was an impermissible comment on appellant’s credibility.
The detective testified that he spoke with appellant during the investigation of
the victim’s murder and appellant explained his whereabouts at the time the
crime was committed by saying that he was in the middle of a three-hour
journey by means of public transit from work to home. The detective testified
that the alibi “appeared ... that it might have been staged [because] the times
were too exact.”6 At the hearing on the motion for new trial, defense counsel
6
During cross-examination by the assistant district attorney, appellant testified that the
distance between his workplace and his home was five miles and that it took “a couple of hours
to get home.” He later agreed that it took 2 ½ - 3 hours to cover the five-mile distance via public
transit, and acknowledged that he had never delivered to the detective the bus schedule he had
promised to provide.
6
could not recall why she did not object and admitted she probably should have
objected. Even if we assume defense counsel performed deficiently when she
did not object, appellant has failed to prove the prejudice prong of ineffective
assistance of counsel: that, but for counsel’s error, the outcome of his trial
would have been different. Pruitt v. State, supra, 282 Ga. at 34. In light of the
evidence of appellant’s guilt, i.e., an eyewitness who identified appellant as the
person who shot the victim and told the jury why appellant said he had killed the
victim, and appellant’s son and the child’s maternal grandmother who testified
about appellant threatening to kill the victim within two days of the victim’s
death, appellant has not established that the failure to object to the detective’s
observation changed the outcome of appellant’s trial.
(c) The convicted felon who testified he saw appellant shoot the victim
also testified that he had used his cellular phone to take a photograph of the
victim’s body shortly after the shooting and had sent the photo to a friend. The
witness testified he came forward to testify against appellant because two weeks
after the shooting, appellant sent two men to the witness’s home where they
expressed their displeasure at him for having photographed the body of the dead
victim, pistol-whipped the witness, and robbed him of his telephones, cash, a
TV, and car keys. Appellant contends defense counsel rendered ineffective
assistance when she failed to object to alleged bad-character evidence, i.e., the
testimony that appellant was responsible for the beating the witness suffered.
At the hearing on the motion for new trial, defense counsel testified she did not
object because she did not find the witness to be credible and hoped that the
witness’s testimony would show the jurors he was not credible. Assuming that
7
the testimony placed appellant’s character in issue, the decision not to object to
such testimony is a matter of trial tactics (Greenwood v. State, 309 Ga. App. 893
(1a) (___ SE2d ___) (2011)), and, as a general rule, matters of reasonable trial
tactics do not amount to ineffective assistance of counsel. Grier v. State, 273
Ga. 363 (4) (541 SE2d 369) (2001).
(d) Appellant next complains that defense counsel’s performance was
deficient when she did not ask for remedial jury instructions after the trial court
permitted Peronica Ford to testify about the prior incident in which appellant
fired a pellet gun at her (see Div. 3, supra), and sustained defense counsel’s
objection to the witness testifying about another incident in which appellant
purportedly used a gun to injure someone. See Div. 2, supra. At the hearing on
the motion for new trial, defense counsel testified she did not ask for a jury
instruction because a charge would have served to highlight the damaging
testimony. An attorney’s decision not to seek a limiting instruction to avoid
drawing attention to the subject of the instruction is a matter of trial strategy
that falls within the range of reasonable professional conduct when, as here, it
is a reasonable decision. Phillips v. State, 285 Ga. 213 (5c) (675 SE2d 1)
(2009). The trial court did not err when it determined that defense counsel had
not rendered ineffective assistance to appellant.
Judgment affirmed. All the Justices concur.
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