297 Ga. 352
FINAL COPY
S15A0600, S15A0601. POWELL v. THE STATE (two cases).
BENHAM, Justice.
Appellants William and Sharmilla Powell are husband and wife. They
appeal their various convictions stemming from the death of Jesse Evans and the
armed robbery of Geno Evans and Antonio Cunningham.1 The evidence viewed
in a light most favorable to the verdicts showed that William sold drugs and that
1
The crimes occurred on November 13, 2007. On March 17, 2008, a Wayne County grand
jury indicted both appellants on charges of the felony murder of Jesse Evans, the felony murder of
Donovan Scott, the armed robbery of Geno Evans, and the armed robbery of Antonio Cunningham.
Appellant William Powell was additionally charged with the aggravated assault of Geno Evans and
Antonio Cunningham. Appellant Sharmilla Powell was additionally charged with the aggravated
assault of Jesse Evans. The indictment was subsequently redacted to eliminate the charge of the
felony murder of Donovan Scott. Appellants were tried jointly before a jury from March 2, 2009,
to March 5, 2009. On a motion for directed verdict, the charge against Sharmilla for the aggravated
assault of Jesse Evans was dismissed. The jury found appellants guilty as to the remaining counts
in the indictment as redacted. The trial court sentenced each appellant to life in prison for felony
murder and to a consecutive term of life in prison for armed robbery. The remaining charges merged
for sentencing purposes. Appellants jointly moved, pro se, for a new trial on March 19, 2009. With
the assistance of counsel, William subsequently filed motions for new trial and amended motions
for new trial on March 31, 2009, May 23, 2013, and May 27, 2013. Likewise with the assistance
of counsel, Sharmilla filed motions for new trial and amended motions for new trial on April 6,
2009, March 7, 2011, October 4, 2011, and on September 12, 2012. On May 28, 2013, the trial court
held a hearing on appellants’ motions for new trial, as amended, and denied their motions on
February 18, 2014. Appellants subsequently moved to file out-of-time appeals and the trial court
granted their motions on June 2, 2014. William filed his notice of appeal on June 4, 2014, and
Sharmilla filed her notice of appeal on June 5, 2014. Appellants amended their notices of appeal on
October 6, 2014. The appeals were docketed to the January 2015 term of this Court for a decision
to be made on the briefs.
Geno Evans was believed to be a drug dealer.2 William and Sharmilla decided
to rob Geno. On the day in question, William and Sharmilla drove a rented
black Chrysler Pacifica to Geno’s house. William entered the house and pointed
a chrome colored handgun at Geno and Cunningham who had been inside
watching television. Wearing a Halloween mask and armed with an assault
rifle, Donovan Scott, who was William’s uncle, entered the home shortly after
William. William and Scott ordered Geno and Cunningham to the ground and
demanded money. Not satisfied with the amount of money they obtained from
the pockets of Geno and Cunningham, the men had Geno make a phone call to
have someone bring more money. Geno first tried to call police, but Scott
knocked the phone out of Geno’s hand. Next, Geno called his father Jesse
Evans who lived nearby. Jesse, discerning from the phone call that something
was wrong, walked over to Geno’s house armed with a shotgun. When Jesse
arrived outside Geno’s door, William looked through the window. William and
Scott then exchanged guns, and William used the assault rifle to shoot Jesse
2
While investigating the crime, police found pounds of marijuana in Geno’s home and
vehicle, bags of cocaine in his home and vehicle, and approximately $18,000 in cash in his vehicle.
At trial, however, Geno denied that any of these items were his. Also at the time of trial, Geno had
not been charged with any crimes related to the drugs and cash found in his home and vehicle.
2
through the door. During the melee, both Geno and Cunningham were shot and
wounded, but Geno was able to make it outside the house, and he ran over to a
neighbor’s house to call police. While Geno was outside, Sharmilla emerged
from the van and shot at him twice, but missed. William and Sharmilla
eventually fled in the Chrysler Pacifica. When the police arrived, they found the
bodies of Jesse and Scott on the porch of Geno Evans’ house and found a
wounded Cunningham inside the house. Police later apprehended appellants in
Washington, D.C.
At trial, Sharmilla testified that she was never at Geno’s house on the
night in question and, instead, was at home with her children when the shooting
occurred. She said William sometimes sold drugs and that, on the night in
question, he did leave the house and go out, but noted William was not driving
the Pacifica. She also testified that she had purchased the guns that were used
in the shooting, but surmised that Scott had taken the guns from her home.
Later on the same night of the shooting, Sharmilla stated she, William, and the
3
children left to go to Myrtle Beach, South Carolina, for the couple’s
anniversary.3
1. The evidence adduced at trial and summarized above was sufficient to
authorize a rational trier of fact to find appellants guilty beyond a reasonable
doubt of the crimes for which they were convicted. Jackson v. Virginia, 443 U.
S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
(a) Appellant William Powell alleges that the evidence was insufficient
to support his conviction for felony murder and aggravated assault of Jesse
Evans because he contends there was no proof that any bullet he fired wounded
the victim and because he asserts that the ballistic examiner’s testimony was
“totally incompetent” concerning the identity of the caliber of rounds fired.
These contentions lack merit. Two eyewitnesses stated that appellant shot
through the door with an assault rifle when Jesse Evans arrived on the porch of
Geno’s house. Eyewitnesses also identified Scott as a shooter during the
incident. The physical evidence showed that gunshots were fired through the
entrance door from the inside to the outside of the house. The evidence was
3
Along the way, Sharmilla testified that the family stayed overnight at a hotel in Darien,
Georgia, when their baby became sick in the car.
4
sufficient to show that appellant either committed the crime directly or was a
party to the crime of the felony murder and aggravated assault of Jesse Evans.
See Grissom v. State, 296 Ga. 406 (1) (768 SE2d 494) (2015).
(b) Appellant William Powell alleges the evidence was insufficient to
convict him of armed robbery because the evidence was conflicting and certain
witness testimony was impeached. Appellate courts, however, do not re-weigh
evidence or determine the credibility of witnesses on appeal, but rather appellate
courts defer to the jury’s findings. Dixon v. State, 294 Ga. 40 (3) (751 SE2d 69)
(2013). The jury was authorized to resolve any conflicts in the evidence against
appellants. Selvidge v. State, 252 Ga. 243, 245 (313 SE2d 84) (1984).
2. Both appellants argue that the trial court erred when it denied the
defense motions for a change of venue. In support of this argument, appellants
contend the jury that tried their case was not fair and impartial because many of
the jury pool members were exposed to pretrial publicity about the case and
because many of the jurors knew the victim Jesse Evans. This Court has held:
The trial court has the discretion to grant a change of venue
and its discretion will not be disturbed absent an abuse of that
discretion. In a motion for a change of venue [when the death
penalty is not sought], the petitioner must show (1) that the setting
of the trial was inherently prejudicial or (2) that the jury selection
5
process showed actual prejudice to a degree that rendered a fair trial
impossible, As for the first showing, even in cases of widespread
pretrial publicity, situations where such publicity has rendered a
trial setting inherently prejudicial are extremely rare. The record
must establish that the publicity contained information that was
unduly extensive, factually incorrect, inflammatory or reflective of
an atmosphere of hostility.
(Citations and punctuation omitted.) Walden v. State, 289 Ga. 845 (2) (717
SE2d 159) (2011). It is not the number of jurors who have had pretrial exposure
to publicity that is key; but the question is whether those jurors who have heard
about the case can put aside their opinions and render a verdict based on the
evidence presented at trial. See Chancey v. State, 256 Ga. 415 (5) (C) (349
SE2d 717) (1986).
The transcript of the voir dire process shows that approximately 82 jurors4
were considered for service at appellants’ trial. Approximately 28 jurors, or
34%, were dismissed for cause.5 All of the jurors who were eventually
impaneled, except the two alternates, had some type of pretrial media exposure
4
The record on appeal does not include any certified list from the clerk’s office showing the
potential jurors who were summoned and appeared for voir dire in appellants’ trial. Nor is there any
record of what, if any, peremptory strikes were used by the parties.
5
Four other jurors were dismissed for other reasons not at issue in this appeal.
6
to the case.6 The two alternates stated they knew nothing about the case. One
of the impaneled jurors worked with the victim Jesse Evans. The husband of
another impaneled juror also worked with the victim. All the jurors who served
on the jury testified that they could be fair and impartial and stated that they
would base their decision only on the evidence that was presented at trial.
In this case, neither prong justifying a change in venue has been met.
Although a third of the potential jurors were dismissed for cause, appellants
have failed to show actual prejudice or that those jurors who remained could not
be fair and impartial in spite of publicity associated with the case. See Chancey
v. State, supra, 256 Ga. at 431-432 (no actual prejudice rendering a fair trial
impossible was shown where 42% of the venire had been excused for cause and
where 72% of prospective jurors had heard or read about the case). In addition,
the record showed the trial court was meticulous in excusing any prospective
juror who expressed any degree of fixed bias. Likewise, appellants failed to
proffer any evidence that the pretrial publicity was so pervasive as to render the
trial setting inherently prejudicial. Under these circumstances, we cannot say
6
The type of pretrial publicity most potential jurors indicated they had encountered consisted
of articles in the local newspaper, radio broadcasts, and/or gossip.
7
the trial court abused its discretion when it denied appellants’ requests for a
change of venue. Id. at 432; Gear v. State, 288 Ga. 500 (2) (705 SE2d 632)
(2011).
3. Both appellants contend their jury was not constitutionally fair and
impartial because the impaneled jurors were all Caucasian, whereas appellants
are African-American. Inasmuch as no Batson7 challenge or other objection was
made below regarding the racial composition of the jury, the issue has been
waived for appellate review. See Lyons v. State, 271 Ga. 639 (5) (522 SE2d
225) (1999) (Batson issue was waived on appeal when it was not specifically
raised below).8 To the extent appellants allege that they were constitutionally
denied a fair and impartial jury because of the exposure of potential jurors to
pretrial publicity, those claims lack merit for the reasons set forth in Division 2,
supra.
4. Appellant William Powell contends the prosecutor engaged in
misconduct when a colloquy occurred between the prosecutor and Sharmilla,
7
Batson v. Kentucky, 476 U. S. 79 (106 SCt 1712, 90 LE2d 69) (1986).
8
We note further that there is nothing in the record on appeal which shows the racial or ethnic
make-up of the approximately 82 potential jurors who were considered for service.
8
during which he asked whether her religion precluded her from taking oaths and
telling the truth. Since William never objected to this colloquy at trial, the
matter is waived for appellate review. See Johnson v. State, 293 Ga. 641 (4)
(748 SE2d 896) (2013).
5. Appellant Sharmilla Powell contends her trial counsel rendered
constitutionally ineffective assistance on several grounds. In order to prevail on
a claim of ineffective assistance of counsel, Sharmilla
must show counsel's performance was deficient and that the
deficient performance prejudiced [her] to the point that a reasonable
probability exists that, but for counsel's errors, the outcome of the
trial would have been different. A strong presumption exists that
counsel's conduct falls within the broad range of professional
conduct.
(Citation and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34 (4) (644
SE2d 837) (2007). If a defendant fails to meet her burden on one prong of the
two-prong test, then the other prong need not be reviewed by the Court. Wright
v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012).
(a) Appellant alleges that counsel failed to move for a change of venue.
This allegation is not borne out by the record.
9
(b) Appellant alleges trial counsel was deficient for failing to file a
motion to sever. At the motion for new trial hearing, counsel testified that the
defense made a strategic decision not to sever the defendants and, in any case,
the couple wanted to be tried together. “The failure to file a motion to sever
does not require a finding of ineffective assistance since the decision whether
to seek severance is a matter of trial tactics or strategy [cit.], and a decision
amounting to reasonable trial strategy does not constitute deficient
performance.” Harris v. State, 279 Ga. 522 (6) (615 SE2d 532) (2005).
(c) The indictment the jurors received for their deliberations was redacted
to exclude the charge of the felony murder of Donovan Scott, which charge was
dismissed pretrial for both appellants, and the charge of aggravated assault of
Geno Evans, which charge was dismissed against Sharmilla via a motion for
directed verdict. Appellant alleges her counsel was deficient when he failed to
object to the redacted indictment going back with the jury. At the motion for
new trial hearing, Sharmilla’s trial counsel explained he did not want the jurors
to be privy to the dismissed charges for fear that the jurors would think
Sharmilla was “getting away” with something. On appeal, Sharmilla counters
that trial counsel should have allowed the un-redacted indictment to go out with
10
the jurors, as well as make an argument to the jury that, because these two
charges were dismissed, the jury should not convict her of the remaining
charges. Appellant’s argument is unavailing. There is nothing unreasonable
about a lawyer’s wanting jurors to have an indictment that reflects the current
charges pending against his client. Counsel’s performance was not deficient in
this regard.
(d) Appellant alleges her counsel was deficient by failing to render a
proper defense inasmuch as he did not proffer certain items of evidence at trial.
Specifically, appellant complains that counsel failed to call witnesses other than
herself, failed to find and/or place hotel receipts into evidence, and failed to
introduce appellants’ marriage certificate into evidence. At the motion for new
trial hearing, counsel stated he decided not to introduce appellants’ marriage
certificate because it revealed Sharmilla’s religion; and instead, Sharmilla
testified as to the date of her marriage and testified that she and William were
traveling out of town for their anniversary, and were not fleeing a crime. As to
hotel receipts, Sharmilla’s own testimony placed the couple in town at the
11
approximate time the shooting occurred9 and, therefore, any hotel receipts would
have been irrelevant as to appellants’ main defense that they were not at the
crime scene.10 At the motion for new trial hearing, appellant failed to proffer any
witnesses or documentary evidence, including any hotel receipts, that she
contends counsel was deficient in failing to proffer at trial. In the absence of
offering such evidence at the motion for new trial hearing, appellant cannot
show prejudice. See Miller v. State, 295 Ga. 769 (2) (a) (i) (764 SE2d 135)
(2014); Barge v. State, 294 Ga. 567 (2) (755 SE2d 166) (2014). Appellant’s
claim of ineffective assistance of counsel necessarily fails.
Judgments affirmed. All the Justices concur.
9
At the time of the shootings, appellant claimed to be at home with her children, and said
William had gone out, but that he was driving a vehicle other than the Pacifica that was spotted at
the crime scene.
10
The same is true for any fibers from appellants’ vehicle which Sharmilla opined would have
corroborated her story that they stopped at a hotel because their baby was sick.
12
Decided June 15, 2015.
Murder. Wayne Superior Court. Before Judge Scarlet.
Earle J. Duncan III, for appellant (case no. S15A0600).
Samantha F. Jacobs, for appellant (case no. S15A0601).
Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, John B.
Johnson III, Assistant District Attorneys; Samuel S. Olens, Attorney General,
Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, Ryan A. Kolb, Assistant Attorney General, for
appellee.
13