SECOND DIVISION
DOYLE, C. J.,
MILLER, P. J., and REESE, J.
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
June 16, 2017
In the Court of Appeals of Georgia
A17A0311. WOODS v. THE STATE.
REESE, Judge.
A Glynn County jury found Ralph Woods, Sr., guilty beyond a reasonable
doubt of voluntary manslaughter, OCGA § 16-5-2 (a), and simple assault, OCGA §
16-5-20 (a). He appeals from the denial of his motion for a new trial, contending that
the evidence was insufficient to support his convictions, that he received ineffective
assistance of counsel, and that he was denied his constitutional rights to due process
and a speedy trial. For the reasons set forth, infra, we affirm.
Viewed in the light most favorable to the jury’s verdict,1 the record reveals the
following facts. On December 1, 2007, John Mitchell (hereinafter, “the victim”) was
1
See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d
560) (1979).
in “The Cut,” an area of Brunswick where drugs are often bought and consumed,
when he encountered Bernard Robinson.2 During the encounter, the victim hit
Robinson in the head with a brick, robbed him, and ran away. Robinson, the
Appellant, and other men chased the victim. Upon catching the victim, the men
jointly beat him severely with their hands and feet, the Appellant stabbed him, and
Robinson shot him. The victim died from his injuries.
The State filed an indictment jointly charging the Appellant, Robinson, and two
accomplices, Curtis Grant and Keith Williams, with murder, felony murder, and
voluntary manslaughter, as well as counts of aggravated assault against each of them
individually. The voluntary manslaughter count alleged that the men caused the death
of the victim
under circumstances which would otherwise be murder as the sole result
of a sudden, violent, and irresistible passion resulting from serious
provocation sufficient to excite such passion in a reasonable person,
while acting in concert with another to apprehend, detain and assault
[the victim], by shooting him with a handgun, by hitting him with a
2
Additional facts are provided in the Supreme Court of Georgia’s opinion
affirming Robinson’s murder conviction. See Robinson v. State, 299 Ga. 648 (791
SE2d 13) (2016).
2
handgun, by stabbing him with a knife, and by repeatedly hitting him
with their hands and feet[.]3
The Appellant and Robinson were tried together and, in addition to other
witnesses, both Williams and Grant testified against them.4 The jury found the
Appellant guilty of committing voluntary manslaughter and simple assault, as a lesser
included offense of aggravated assault.5 The trial court denied the Appellant’s motion
for new trial, and this appeal followed.
On appeal from a criminal conviction, we view the evidence in the light
most favorable to the verdict and an appellant no longer enjoys the
presumption of innocence. This Court determines whether the evidence
3
See OCGA § 16-5-2 (a) (“A person commits the offense of voluntary
manslaughter when he causes the death of another human being under circumstances
which would otherwise be murder and if he acts solely as the result of a sudden,
violent, and irresistible passion resulting from serious provocation sufficient to excite
such passion in a reasonable person; however, if there should have been an interval
between the provocation and the killing sufficient for the voice of reason and
humanity to be heard, of which the jury in all cases shall be the judge, the killing shall
be attributed to deliberate revenge and be punished as murder.”).
4
Prior to the Appellant’s trial, the State dismissed the felony charges against
Williams in exchange for his guilty plea to simple assault. As for Grant, at the time
of trial, he was still facing the murder and other charges arising from the victim’s
death.
5
The jury convicted Robinson of malice murder and possession of a firearm
by a convicted felon, and the Supreme Court of Georgia affirmed Robinson’s
convictions. See Robinson, 299 Ga. at 648-651.
3
is sufficient under the standard of Jackson v. Virginia,[6] and does not
weigh the evidence or determine witness credibility. Any conflicts or
inconsistencies in the evidence are for the jury to resolve. As long as
there is some competent evidence, even though contradicted, to support
each fact necessary to make out the State’s case, we must uphold the
jury’s verdict.7
The standard of Jackson v. Virginia is met if the evidence is sufficient for any rational
trier of fact to find the defendant guilty beyond a reasonable doubt of the crime
charged.8 With these guiding principles in mind, we turn now to the Appellant’s
specific claims of error.
1. The Appellant contends that the State presented insufficient evidence to
support his convictions, specifically, that the only evidence that he stabbed the victim
and otherwise participated in the murder was the testimony of two of his accomplices,
Williams and Grant. He relies on former OCGA § 24-4-8,9 which provided that the
6
443 U. S. at 319 (III) (B).
7
Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004) (citations omitted).
8
Clark v. State, 275 Ga. 220, 221 (1) (564 SE2d 191) (2002).
9
In 2011, the Georgia General Assembly repealed the existing Evidence Code
in its entirety and replaced it with a new Evidence Code, the provisions of which
became effective on January 1, 2013. See Ga. L. 2011, p. 99, §§ 1, 101. Because the
Appellant’s trial took place in August 2010, the former Evidence Code applies.
4
testimony of a single witness was generally sufficient to establish a fact, except in
felony cases where the only witness was an accomplice.10 Under the statute, however,
evidence of “corroborating circumstances may dispense with the necessity for the
testimony of a second witness[.]”11 In order for evidence to corroborate an
accomplice’s testimony, it had to be “independent of the accomplice’s testimony,”
had to “directly connect the defendant with the crimes or lead to the inference of the
defendant’s guilt,” and had to “do more than merely cast a grave suspicion of guilt
on the defendant.”12 Still, “[s]light evidence from an extraneous source identifying the
accused as a participant in the criminal act [was] sufficient corroboration of the
accomplice to support a verdict.”13 Further, circumstantial evidence could be used to
10
See Young v. State, 291 Ga. 627, 629 (2) (732 SE2d 269) (2012); Jordan v.
State, 278 Ga. App. 126, 128 (1) (628 SE2d 221) (2006).
11
Young, 291 Ga. at 629 (2) (citation and punctuation omitted).
12
Id. (citation omitted).
13
Id. (citation and punctuation omitted).
5
provide the necessary corroboration.14 And, significantly, the testimony of one
accomplice could corroborate the testimony of another accomplice.15
In this case, Williams testified that the Appellant was in “The Cut” when the
victim struck Robinson’s head, the Appellant and other men chased the victim, and
the Appellant participated in the beating of the victim. Williams also testified that,
after the assault, the Appellant told him that he (the Appellant) had “stabbed [the
victim] a couple times.”
Similarly, Grant testified that, on the day of the murder, he saw the Appellant
in “The Cut” when the victim attacked Robinson. Immediately after the attack, Grant
heard Robinson say to the Appellant, “Ralph, catch him for me[,]” referring to the
victim. The Appellant, Grant, and others chased the victim through the neighborhood.
A few minutes later, Grant saw the victim lying on the ground with the Appellant and
others beating and kicking him. Grant saw Robinson shoot the victim, and then he
saw the Appellant stabbing the victim in the back with a long, “Army dagger[-]like
knife.” According to Grant, the Appellant must have gotten the knife from a nearby
14
See Blalock v. State, 250 Ga. 441, 443 (4) (298 SE2d 477) (1983).
15
Id. The record shows that the trial court instructed the jury on the testimony
of an accomplice and the need for corroborating evidence.
6
abandoned car, where Grant knew that a similar knife had been hidden. Grant testified
that he was only three feet away when the Appellant stabbed the victim.
The accomplices’ testimony was further corroborated by that of an eyewitness
who had known the Appellant for years. He testified that, on the night at issue, he saw
the Appellant and others chase the victim, watched as the Appellant beat up the
victim with Robinson and Grant, and saw Robinson shoot the victim. According to
the eyewitness, the Appellant used a “stabbing” motion as he repeatedly struck the
victim, although the witness did not actually see a knife in the Appellant’s hand at
that time. And, after the beating was over, the witness saw blood on the Appellant’s
clothing.
Given this evidence, we find that the testimony of the Appellant’s accomplices
about his participation in the crimes was adequately corroborated, and that the totality
of the evidence, when viewed in the light most favorable to the jury’s verdict, was
sufficient for the jury to find him guilty beyond a reasonable doubt of the crimes
charged.16
16
See Preval v. State, 302 Ga. App. 785, 787-788 (1) (692 SE2d 51) (2010)
(The evidence was sufficient to support the defendant’s convictions, because the
accomplices amply corroborated each other’s testimony that the defendant planned
and participated in the crimes.); cf. Johnson v. State, 277 Ga. App. 499, 504-505 (2)
(b) (627 SE2d 116) (2006) (reversing convictions for armed robbery, kidnapping, and
7
2. The Appellant contends that he received ineffective assistance when his trial
counsel failed to request a jury instruction on involuntary manslaughter as a lesser
included offense to the voluntary manslaughter charge.17
In order to prevail on a claim of ineffective assistance of counsel, a
criminal defendant must show that counsel’s performance was deficient
and that the deficient performance so prejudiced the client that there is
a reasonable likelihood that, but for counsel’s errors, the outcome of the
trial would have been different.[18] The criminal defendant must
overcome the strong presumption that trial counsel’s conduct falls
within the broad range of reasonable professional conduct. [The
appellate court accepts] the trial court’s factual findings and credibility
related crimes because the evidence showed that the defendant was merely present
with the co-defendants before and after the crimes, and neither co-defendant
implicated the defendant in the crimes, there were no eyewitnesses who saw the
defendant participating in the crimes, there was no evidence linking the defendant to
the weapon used in the crimes, and there was no evidence that the defendant received
any of the proceeds from the armed robbery).
17
See OCGA § 16-5-3 (a) (“[A] person commits the offense of involuntary
manslaughter in the commission of an unlawful act when he causes the death of
another human being without any intention to do so by the commission of an
unlawful act other than a felony.”); see also OCGA §§ 16-1-6; 16-1-7 (lesser included
offenses).
18
Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674)
(1984).
8
determinations unless clearly erroneous, but it independently appl[ies]
the legal principles to the facts.19
“Since an appellant claiming ineffective assistance of counsel must show both
deficient performance and actual prejudice stemming from that deficiency, an
insufficient showing on either of these prongs relieves the reviewing court of the need
to address the other prong.”20
In this case, the Appellant’s trial counsel testified that he asserted an alibi
defense at trial because the Appellant had consistently insisted that he had not been
present during the attack on the victim, but, instead, was at a cookout. In support of
that alibi defense, trial counsel vigorously cross-examined Williams and Grant – the
two accomplices who testified against the Appellant, as well as the other witnesses.
He also argued to the jury that the accomplices were not credible witnesses; that they
were lying in order to implicate the Appellant and get a lighter sentence for
themselves; and that it was Grant, not the Appellant, who had actually stabbed the
victim.
19
Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003) (citations and
punctuation omitted).
20
Williams v. State, 277 Ga. 853, 858 (6) (a) (596 SE2d 597) (2004) (citations
and punctuation omitted).
9
Under such circumstances, a request for a jury instruction on involuntary
manslaughter, as a lesser included offense to voluntary manslaughter, would have
been completely inconsistent with the Appellant’s alibi defense.21 We conclude that
it was reasonable for trial counsel “to rely on [the Appellant’s] claim of complete
innocence, and to defend [him] by attacking the credibility of the [accomplices]
whose testimony implicated him in the crimes.”22
This Court “evaluates counsel’s performance from counsel’s perspective at the
time of trial. As a general rule, matters of reasonable tactics and strategy, whether
wise or unwise, do not amount to ineffective assistance of counsel.”23 Under the
21
See Sparks v. State, 277 Ga. 72, 74 (3) (586 SE2d 645) (2003); see also
Gibbs v. State, 257 Ga. App. 38, 39 (2) (570 SE2d 360) (2002) (A jury instruction on
a lesser included offense is not required when “the evidence shows either the
commission of the completed offense as charged, or the commission of no
offense[.]”) (punctuation and footnote omitted).
22
Sparks, 277 Ga. at 74-75 (3). See Ingram v. State, 317 Ga. App. 606, 608 (2)
(732 SE2d 456) (2012) (Because it was reasonable for trial counsel to decide, based
upon his review of the evidence, to pursue an “all-or-nothing” defense strategy
instead of requesting a jury instruction on a lesser included offense, the Court found
no merit in the Appellant’s ineffective assistance claim.).
23
Grier v. State, 273 Ga. 363, 365 (4) (541 SE2d 369) (2001) (citations and
punctuation omitted). See Ingram, 317 Ga. App. at 608 (2) (“Decisions as to which
charges will be requested generally fall within the realm of trial tactics and strategy.”)
(citation and punctuation omitted).
10
circumstances presented, we conclude that trial counsel’s failure to request a jury
instruction that was inconsistent with the complete defense asserted by his client did
not constitute ineffective assistance.24
3. The Appellant contends that the trial court violated his right to a speedy trial
and that, as a result, his defense was “fatally handicapped.” The Supreme Court of
Georgia, however, has already decided this issue adversely to the Appellant in an
appeal filed by him and his co-defendant, Robinson, from the denial of their motions
to dismiss the indictment. In Robinson v. State,25 the Court concluded that the
defendants could not prevail on their constitutional speedy trial claims because they
had failed to show any harm, explaining that “no witnesses have died or disappeared;
there is no evidence that witnesses have lost their memories; and the defense strategy
remained unchanged.”26 The Appellant has failed to present evidence of any
24
See Sparks, 277 Ga. at 74-75 (3); see also Ellis v. State, 316 Ga. App. 352,
365 (8) (d) (729 SE2d 492) (2012) (“[T]he failure to request a jury instruction on a
lesser included offense cannot support a claim of ineffective assistance where . . . the
evidence does not reasonably raise the issue that [the defendant] may be guilty only
of the lesser crimes.”) (citations omitted; emphasis in original).
25
287 Ga. 265 (695 SE2d 201) (2010).
26
Id. at 269 (1) (d).
11
additional prejudice to his defense that did not exist before the Supreme Court issued
its ruling.27 Consequently, this enumeration lacks merit.
4. The Appellant claims that he was improperly denied his Sixth Amendment
right to “conflict-free” counsel.28 He argues that his trial counsel was not appointed
to represent him until nine months after his arrest and, as a result of that delay, an
“essential” alibi witness could not be located and called to testify in his defense at
trial.
The record shows, however, that a public defender was appointed for the
Appellant in the “early spring” of 2008, about three months after the Appellant’s
January 2008 arrest. The public defender testified at the motion for new trial hearing
that the Appellant had given him the “street nicknames” and phone numbers of two
potential alibi witnesses and that he had diligently attempted to find and interview
27
Notably, the Appellant’s trial counsel represented the Appellant in the appeal
to the Supreme Court, and he presented the same argument then that the Appellant
has raised in the motion for new trial and in the instant appeal, i.e., that the
Appellant’s lack of representation by counsel following his arrest hampered the effort
to find and interview potential witnesses who might testify favorably on his behalf
at trial.
28
See Robinson, 287 Ga. at 265 (discussing the conflict-of-interest issue that
arose in the Circuit Defender’s Office following the arrest of the Appellant and his
accomplices).
12
them, but was unsuccessful. The public defender stopped representing the Appellant
in August 2008, and a new attorney was appointed in October 2008 and continued to
represent the Appellant through the trial. During the motion for new trial hearing, trial
counsel testified that he had attempted to find a specific potential alibi witness, but
was unable to do so. Neither the Appellant, nor either of his appointed counsel,
identified the alibi witnesses who were the subject of their searches, and the
Appellant has not identified the “essential” alibi witness to whom he refers in his
appellate brief.
The record shows, however, that shortly before the Appellant’s trial, his trial
counsel filed a notice of intent to present an alibi defense, identifying one potential
witness named “Beatrice McCray.”29 The notice also stated that counsel had been
29
See OCGA § 17-16-5 (a) (“Upon written demand by the prosecuting attorney
. . . , the defendant shall serve within ten days of the demand of the prosecuting
attorney or ten days prior to trial, whichever is later, . . . upon the prosecuting attorney
a written notice of the defendant’s intention to offer a defense of alibi. Such notice
by the defendant shall state the specific place or places at which the defendant claims
to have been at the time of the alleged offense and the names, addresses, dates of
birth, and telephone numbers of the witnesses, if known to the defendant, upon whom
the defendant intends to rely to establish such alibi unless previously supplied.”); (c)
(“If prior to or during trial, a party learns of an additional witness whose identity, if
known, should have been included in the information furnished under subsection (a)
or (b) of this Code section, the party shall promptly notify the other party of the
existence and identity of such additional witness.”).
13
diligently searching for the witness, but had been unable to find her. It is significant,
therefore, that the trial transcript shows that the State actually called Ms. McCray as
a witness at trial, and the Appellant’s trial counsel was able to cross-examine her. In
fact, Ms. McCray testified that the Appellant’s trial counsel had interviewed her prior
to trial and that he had recorded the interview. It follows that the Appellant cannot
show that the delay in his counsel’s appointment denied him the benefit of Ms.
McCray’s testimony.
Although the Appellant now claims that the delay deprived him of the
opportunity to call a different, “essential” alibi witness at trial, the record shows that
he failed to identify that witness prior to trial in his notice of an alibi witness. As a
result, he cannot show that the witness, if he or she had been found, would have been
allowed to testify.30 Nor has he proffered any evidence to support a finding that the
witness would have testified favorably to him at trial or that, if the witness had
testified, there is a reasonable probability that the outcome of the trial would have
30
See OCGA § 17-16-6 (“If at any time during the course of the proceedings
it is brought to the attention of the court that the defendant has failed to comply with
the requirements of this article, the court may order the defendant to permit the
discovery or inspection, interview of the witness, grant a continuance, or, upon a
showing of prejudice and bad faith, prohibit the defendant from introducing the
evidence not disclosed or presenting the witness not disclosed, or may enter such
other order as it deems just under the circumstances.”).
14
been different.31 Consequently, the Appellant has failed to demonstrate any prejudice
that resulted from the delay in the appointment of trial counsel.32
And, as for whether a delay hampered the Appellant in obtaining the testimony
of any other potential defense witnesses who may have been at “The Cut” on the day
of the murder, the Appellant’s original public defender admitted that “The Cut” was
a “place of ill repute” and that many of the people who “hang out” in that area were
“transients,” such as drug users, prostitutes, and vagrants, who might refuse to speak
to a lawyer or an investigator. He admitted, therefore, that, even if he or an
investigator had tried to find witnesses in “The Cut” as soon as the Appellant was
arrested, he could not say that it would have helped the Appellant’s defense.
31
See Strong v. State, 275 Ga. 465, 466 (2) (a) (569 SE2d 523) (2002) (The
Appellant “did not produce [a potential defense] witness or his affidavit at the hearing
on the motion for new trial, and thus did not present any probative evidence that he
would have testified for the defense or that, if so, his testimony would have been
exculpatory. Without a proper proffer of the testimony, Appellant cannot show a
reasonable probability that the missing witness’ appearance at trial would have
resulted in a different verdict.” Thus, the Appellant failed to demonstrate any
prejudice resulting from the alleged error.) (citations and punctuation omitted).
32
See Robinson, 299 Ga. at 650 (2).
15
Notably, the Supreme Court of Georgia specifically addressed this issue in its
ruling in the appeal from the conviction of the Appellant’s accomplice, Robinson.33
In that case, Robinson also claimed that he was prejudiced by the delay in the
appointment of counsel to represent him, arguing that it reduced his ability to track
down witnesses in “The Cut.”34 The Court rejected that contention as mere
speculation, given evidence that “the transient nature of these witnesses could have
made them impossible to find.”35 The Appellant has failed to offer any reason that this
Court should not reach the same conclusion in this case.
Consequently, we conclude that this enumeration presents no reversible error.
5. The Appellant complains that the State failed to disclose that it had an
agreement with his accomplice, Grant, to give him immunity or leniency in exchange
for his trial testimony, arguing that such failure to disclose hampered his ability to
impeach Grant during trial.36 There is no merit to this contention.
33
See Robinson, 299 Ga. at 650 (2).
34
See id.
35
See id.
36
See Giglio v. United States, 405 U. S. 150, 151, 154-155 (92 SCt 763, 31
LE2d 104) (1972) (The Supreme Court reversed the defendant’s conviction because
the prosecution’s case “depended almost entirely” upon the testimony of a key
16
The record shows that, prior to trial, the State gave Grant use and derivative use
immunity, agreeing that any testimony or evidence he presented during the
Appellant’s trial (or related proceedings) would not be used against him during his
own trial, except to the extent that such testimony or evidence was false or conflicted
with his testimony at his own trial. The State filed a notice of its grant of immunity
on February 24, 2009, almost 18 months before the Appellant’s August 2010 trial.
Thus, the Appellant cannot claim to have been ignorant of this grant of immunity.
Moreover, the Appellant’s assertion that the State must have agreed to give
Grant leniency in his prosecution and sentencing in exchange for his testimony in the
Appellant’s trial is pure speculation. Not only is there no evidence of such an
agreement in the record, the trial transcript affirmatively shows that no such
agreement existed at the time of the Appellant’s trial. Grant specifically testified that
he had been charged with the murder of the victim and that he did not have any
“deals” or agreements with the State “with regard to what’s going to happen to [his]
witness, and the State failed to notify defense counsel before trial that it had promised
the witness that he would not be prosecuted if he testified against the defendant.
According to the Court, the credibility of this essential witness was “an important
issue in the case, and evidence of any understanding or agreement as to a future
prosecution would be relevant to his credibility[,] and the jury was entitled to know
of it.”).
17
case.” In addition, during a bench conference, the prosecutor vociferously denied that
such an agreement existed.37 Finally, during the motion for new trial hearing, the
Appellant’s trial counsel admitted that, at the time of the Appellant’s trial, the
prosecutor informed him that the State did not have an agreement with Grant to give
him leniency in exchange for his testimony.
In persisting to assert his claim of a secret deal between Grant and the State,
the Appellant relies entirely on the fact that Grant received a lighter sentence than the
Appellant believes was appropriate, given Grant’s participation in the murder.
However, “the subsequent disposition of charges against the witness, standing alone,
does not establish the existence of a deal.”38 Given that the State has consistently
denied that a deal with Grant existed at the time of the Appellant’s trial, the trial court
accepted that representation as true, and the Appellant offers nothing but pure
speculation to the contrary, we cannot say that the court’s finding that there was no
37
During the bench conference, the prosecutor specifically informed trial
counsel that, while the State had previously offered Grant a guilty plea agreement,
Grant had refused it. The State then withdrew the offer and had not made another
prior to his testimony in the Appellant’s trial.
38
DeVaughn v. State, 296 Ga. 475, 480 (5) (769 SE2d 70) (2015) (citation and
punctuation omitted).
18
deal with Grant is clearly erroneous.39 Consequently, this alleged error presents no
basis for reversing the Appellant’s convictions.
Judgment affirmed. Doyle, C. J., and Miller, P. J., concur.
39
See id.
19