FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
February 26, 2016
In the Court of Appeals of Georgia
A15A1980. WILLIAMS v. THE STATE.
BARNES, Presiding Judge.
A jury convicted Moerise Williams of three counts of aggravated assault and
possession of a firearm during the commission of a felony. Following the denial of
his motion for new trial, he appeals on several grounds, arguing among other things
that the trial court erred regarding evidentiary issues and contending that his trial
counsel was ineffective. For the reasons that follow, we affirm.
Viewed in the light most favorable to the verdict, the evidence showed that
shortly after midnight on September 26, 2007, Dantavious Walker drove to a
neighborhood convenience store with two friends, Willie Wilson and Greg Hunt.
Walker went into the store, Wilson got out to talk to some women, and Hunt dozed
in the car. Shortly after Walker got back into the car, a passenger van pulled up in
front of the car, and Hunt “had a vibe.” As he urged Walker to drive off, Hunt saw a
rifle barrel come out of the van, followed by a man who looked into the car and “went
to shooting the car up” with an assault rifle. A second man got out of the van and
began firing a handgun at the car. Wilson ran from the scene. Hunt dove to the
floorboard and Walker drove out of the parking lot in reverse, crossed the street,
crashed through a wrought-iron fence, crossed a back yard and another street, and
finally crashed into the side of a church building.
Walker was shot in the arm multiple times, but the other two victims escaped
injury. During an interview with a detective at Grady Memorial Hospital, Walker
identified his assailants as Williams and Prentice McNeil, and the van driver as
Marco Moses. The police collected 21 shells from three different weapons in the
parking lot, and the State introduced photographs of the victims’ bullet-ridden car.
A ballistics expert testified that 9 cartridges found in the parking lot were fired by a
Ruger M14 found in McNeil’s house. The other casings from the parking lot were
fired from two other assault weapons found in McNeil’s house.
Williams, McNeill, and Moses were indicted for aggravated assault against the
three victims, but McNeill’s trial was severed. Williams and Moses were tried
2
together and convicted, and this court affirmed Moses’ convictions in Moses v. State,
328 Ga. App. 625 (760 SE2d 217) (2014).1
1. Williams argues that the trial court erred in denying his motion for directed
verdict on the aggravated assault charge involving Willie Wilson, who had been
standing outside of the car when the shooting occurred. The indictment charged
Williams with committing an assault on Wilson “by shooting at, towards and in the
direction of Willie Wilson with a firearm,” but Williams argues that the State failed
to introduce any evidence showing exactly where Wilson was located when the
shooting began or that anyone pointed a weapon at him. But Hunt testified that the
green van pulled up and “blocked us in,” that Wilson was at the back of the car
looking toward the front, and that he ran when the shooting began. This evidence was
sufficient to authorize a rational trier of fact to find Williams guilty beyond a
reasonable doubt of aggravated assault against Wilson. Jackson v. Virginia, 443 U.
S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2. Williams argues that his trial counsel was ineffective for failing to object to
unspecified “threat evidence.”
1
This assault was preceded a week before by the murder of an associate of
Hunt’s. McNeill was also indicted for that murder, along with Matthew Mitchell,
whose conviction was affirmed in Mitchell v. State, 293 Ga. 1 (742 SE2d 454) (2013).
3
To establish ineffective assistance of counsel, 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. Strickland v. Washington,
466 U. S. 668, 695 (104 SCt 2052, 80 LE2d 674) (1984). To prove
deficient performance, one must show that his attorney performed at trial
in an objectively unreasonable way considering all the circumstances
and in the light of prevailing professional norms. Courts reviewing
ineffectiveness claims must apply a strong presumption that counsel’s
conduct fell within the wide range of reasonable professional
performance. Thus, decisions regarding trial tactics and strategy may
form the basis for an ineffectiveness claim only if they were so patently
unreasonable that no competent attorney would have followed such a
course. If the defendant fails to satisfy either the “deficient
performance” or the “prejudice” prong of the Strickland test, this Court
is not required to examine the other.
(Citations and punctuation omitted.) Redding v. State, 297 Ga. 845, 850 (5) (778
SE2d 774) (2015).
While Williams does not identify the evidence to which he contends his trial
counsel should have objected, it is obvious that evidence about perceived threats ran
throughout the trial. For example, when Williams asked Walker during cross-
examination whether he was nervous about being there, Walker replied that he was
nervous because he could see in the courtroom “lots of faces I ain’t never seen before
4
and I got my family down here with me. I ain’t scared. It’s just I don’t want nothing
to happen to my family at the end.” In describing his concern that Walker had named
the shooters, Hunt testified, “I was still out there, you know, I wasn’t trying to make
nothing happen to me.” Wilson testified he did not want to be there at the trial
because he “did not want to put [his] folks in this type of position.” Wilson also
admitted that if someone in jail cooperated with the police, “[a]nything bound to
happen. Get killed, anything.”
Threat evidence is admissible to explain a witness’s conduct on the stand, even
if it is not tied to a defendant. Coleman v. State, 278 Ga. 486, 488 (3) (604 SE2d 151)
(2004). In this case, such evidence was particularly relevant, because on the stand,
Walker completely disavowed his identification to the detective of Williams and
Moses as two of the three shooters. He testified that when he told the detective that
he had seen both Williams and Moses shooting at him, he had merely been repeating
what he had heard from others rather than something he had actually seen. In fact,
Walker even signed an affidavit prepared by Moses’ previous trial counsel, in which
Walker stated that his prior identification of Moses had been mistaken.
Absent Williams’ identification of the particular evidence to which he contends
his trial counsel should have objected, and in light of the facts as outlined above, we
5
conclude that the trial court did not err in admitting the witnesses’ testimony we have
identified above. See Lindsey v. State, 295 Ga. 343, 348 (3) (760 SE2d 170) (2014)
(no error in permitting witness to testify regarding threatening phone calls despite fact
that there was no direct evidence linking defendant with calls); Coleman v. State, 278
Ga. 486, 487-488 (3) (604 SE2d 151) (2004) (evidence of anonymous threat
admissible to explain witness’s evasive conduct on the stand). “Because this evidence
was admissible, counsel’s failure to object thereto does not constitute deficient
performance.” Redding, 297 Ga. at 851-852 (5) (a).
3. Williams argues that the State violated his Sixth Amendment right to counsel
in its opening statement when it said,
There’s one more thing that this case is about. Because, when their
mission failed, a team of assassins the facts and evidence will show had
to cover it up, and they did their best to cover it up in more than one
way. One way was very sophisticated. And they hired lawyers, which
they’re entitled to do under our constitution.
Williams contends that this statement “belittles” his constitutional rights, because
hiring a lawyer is neither sophisticated nor a cover-up, and further contends that his
trial counsel was ineffective for failing to object to it.
6
The context of this part of the State’s opening statement — that the defendants
tried to “cover up” their failed mission — becomes apparent from the next few
sentences.
But they approached the very victims that they tried to kill, and through
their lawyers they had one of the victims sign affidavits saying, you
know what, it wasn’t them when that victim had already made a
statement to law enforcement officials identifying this Marco Moses and
the defendant Moerise Williams as two of the assassins who shot at him
on September ... 26 of 2007. They — he came in to their offices months
later and signed affidavits saying I recant my statement. That’s part of
the cover-up that they tried to do.
Williams also contends that various portions of the State’s closing argument
violated his right to a fair trial, and that his trial counsel was ineffective for failing to
object to them.
Williams did not object to any of the assertedly improper portions of the State’s
opening statement or closing argument, which would have afforded the trial court the
opportunity to take remedial action, and thus this court is precluded from considering
the merits of his contentions regarding those statements. Dixon v. State, 298 Ga. 200,
203 (3) (779 SE2d 290) (2015).
7
Further, as to his contention that his trial counsel was ineffective in failing to
object at this point in his opening statement, Williams simply argues that the opening
statement improperly impugned his Sixth Amendment right to counsel and that the
failure to object to portions of the closing argument constituted ineffective assistance
of counsel. He does not address trial counsel’s testimony in the motion for new trial
hearing regarding why counsel might have abstained from objecting. Absent any
analysis from Williams about whether the failures to object constituted deficient
performance or whether such deficiencies prejudiced Williams, we find no merit in
this enumeration. See Moses, 328 Ga. App. at 634 (5) (b) (iii).
4. Over objection, the trial court allowed the State to question a detective about
the victim Walker’s initial statement identifying Williams and his co-defendant as
assailants, and to admit a recording of that statement into evidence. Williams argues
that the trial court erred in admitting this evidence because the State failed to
establish the foundation required by former OCGA § 24-9-832 for the introduction of
introducing prior contradictory statements for impeachment purposes. That Code
section set forth the following procedure:
2
The current Evidence Code addresses the introduction of a witness’s prior
inconsistent statement at OCGA § 24-6-613 (b).
8
A witness may be impeached by contradictory statements previously
made by him as to matters relevant to his testimony and to the case.
Before contradictory statements may be proved against him, … the time,
place, person, and circumstances attending the former statements shall
be called to his mind with as much certainty as possible. If the
contradictory statements are in writing and in existence, they shall be
shown to him or read in his hearing. …
Former OCGA § 24-9-83.
“The purpose of laying such a foundation is to give the witness the opportunity
to explain or deny the prior contradictory statement.”(Citation omitted.) Meschino v.
State, 259 Ga. 611, 614 (2) (b) (385 SE2d 281) (1989). Here, the State established the
required foundation under former OCGA § 24-9-83. At trial, Walker denied seeing
Moses at the scene of the shooting. In response to the State’s questions, however,
Walker testified that he recalled making a statement to a certain detective while at the
hospital awaiting treatment shortly after the shooting. Through this testimony, Walker
demonstrated that the State sufficiently called to his mind the time, place, person, and
circumstances of the statement such that he could explain or deny the statement. See
Meschino, 259 Ga. at 615 (2) (c) (finding requirements of former OCGA § 24-9-83
were met where witness “acknowledged making some kind of statement”). Compare
Daniely v. State, 309 Ga. App. 123, 125-126 (2) (709 SE2d 274) (2011) (finding
9
requirements of former OCGA § 24-9-83 were not met where “prior statement was
not mentioned during [witness’s] testimony and she was not asked any questions
concerning the time, place, person, or circumstances attending it”). And here, in fact,
Walker did explain the statement.
Although Walker initially testified that he did not recall telling the detective
that Williams shot at him, he later admitted that he did identify Williams to the
detective in his statement, explaining that he had just been repeating what other
people had been telling him rather than stating what he himself had seen. Walker’s
admission that he made the inconsistent statement to the detective did not render the
statement inadmissible. Our Supreme Court has “rejected the assertion that a prior
inconsistent statement is admissible only if the witness denies making the prior
statement, but not if he simply disputes the truth of the earlier statement. There is no
such denial requirement under [former] OCGA § 24-9-83.” (Citation and punctuation
omitted.) Johnson v. State, 289 Ga. 106, 108 (3) (709 SE2d 768) (2011)
Williams also contends that allowing the detective to testify about Walker’s
inconsistent testimonial statement constituted a violation of his right to confront
witnesses against him under Crawford v. Washington, 541 U.S. 36 (124 SCt 1354,
158 LE2d 177) (2004). This argument is misplaced, however, because the prohibition
10
in Crawford applies to the admission of testimonial statements by unavailable
witnesses, not the admission of available witnesses for impeachment purposes.
Walker was not unavailable, but had already testified and was subject to being
recalled. “Therefore, contrary to [Williams’] contentions, Crawford is not applicable
to this case.” McKnight v. State, 283 Ga. 56, 58 (2) (i) (656 SE2d 830) (2008).
5. Finally, Williams contends that his co-defendant’s trial counsel and the lead
detective held a lengthy colloquy on Williams’ post-arrest silence, and that his trial
counsel was ineffective for failing to object. The State responds first that questions
about Williams’ post-arrest silence came from co-defendant’s counsel, not from the
State, and that co-defendant’s counsel was attacking the credibility of a key witness
for the State.
In its order denying Williams’ motion for new trial, the trial court extensively
quoted the exchange and found that “the questions were in the context of an attempt
to eviscerate the investigator’s credibility because the detective’s testimony was
different from what he wrote in his original report.” The court concluded that, taken
in context, the cross-examination of the detective by the co-defendant’s counsel
helped Williams, and thus it was reasonable for Williams’ trial counsel not to object.
11
Williams argues that “there is no evidence in the record that trial counsel’s
decision to not object and move for a mistrial ... was strategic[, and that w]ithout such
evidence, the court must conclude, therefore, that counsel’s performance was
deficient.” But in the cases cited as support for that proposition, the trial counsel
either testified that they had no strategic reason for failing to object (Arellano v. State,
304 Ga. App. 838, 841 (698 SE2d 362) (2010); Johnson v. State, 293 Ga. App. 728,
730 (2) (a) (667 SE2d 637) (2008)), or we found that the failure to object was based
on counsel’s objectively unreasonable misinterpretation of the testimony (Hines v.
State, 277 Ga. App. 404, 407-408 (2) (626 SE2d 601) (2006)).
In this case, Williams did not ask trial counsel during the motion for new trial
hearing whether he had strategic reasons not to object to this line of questioning.
Thus, the record contains no evidence that trial counsel’s decisions were not strategic.
“The trial court’s finding that trial counsel was not ineffective is supported by the
presumption that, in the absence of contrary evidence, counsel’s actions are presumed
strategic in nature.” Mitchell v. State, 242 Ga. App. 177, 182 (4) (c) (529 SE2d 169)
(2000).
Judgment affirmed. Ray and McMillian, JJ., concur.
12