FIFTH DIVISION
REESE, P. J.,
MARKLE and COLVIN, 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.
Please refer to the Supreme Court of Georgia Judicial
Emergency Order of March 14, 2020 for further
information at (https://www.gaappeals.us/rules).
May 21, 2020
In the Court of Appeals of Georgia
A20A0402. HUGHLEY v. THE STATE.
COLVIN, Judge.
After a jury trial, Deanthony Hughley was convicted of two counts of armed
robbery, two counts of aggravated assault, and one count of possession of a firearm
during the commission of a felony. He appeals from the denial of his motion for new
trial, arguing that the trial court erred by denying his Batson motion and by failing to
grant his motion for mistrial for improper injection of evidence into closing argument.
He also argues that his trial counsel rendered ineffective assistance of counsel by
failing to file a speedy trial demand. For the following reasons, we affirm.
“On appeal from a criminal conviction, we view the evidence in the light most
favorable to the verdict, with the defendant no longer enjoying a presumption of
innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165)
(2004). We neither weigh the evidence nor judge the credibility of witnesses, but
determine only whether, after viewing the evidence in the light most favorable to the
prosecution, “any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” (Emphasis omitted.) Jackson v. Virginia, 443 U.
S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
So viewed, the record shows that on November 7, 2012, Keith Holley drove his
girlfriend Moya Thompson’s home and parked outside of her house. Holley and
Thompson chatted in the car for about 30 minutes. While chatting, they noticed
several men walk past them. Thompson recognized one of the men as Hughley and
commented that “I know him from high school.” Moments later, Hughley returned
and knocked on the drivers’ side window with a gun. Two men wore masks and stood
guard on either side of the car, holding guns “like how a solider would hold a gun.”
Hughley told Holley to open the car door, and he did as instructed. Hughley then
pointed the gun at Moya and Thompson and demanded their money and phones.
Thompson handed their money and phones to Hughley. When Hughley demanded
“give me everything,” Thompson handed him her purse. Hughley then instructed the
couple to “put your head down, put your head down, don’t look at me.” They
complied initially, but when Thompson raised her head, Hughley turned and fired
2
several shots in her direction. One of the bullets hit Holley’s car, and another entered
Thompson’s house and went through the bathroom wall.
Holley drove Thompson to a nearby gas station to call for help. Thompson
called her mother, who instructed her to go back to the house, lock all doors and wait
for her to come home. Once back inside the house, Thompson and Holley called 911.
When officers arrived, Thompson identified Hughley as the gunman and showed
officers his profile on Facebook. She identified another picture of Hughley as the
gunman to the interviewing detective.
At trial, Hughley admitted that he was present at the scene of the crime and
fired shots in Thompson’s direction. However, he claimed that he was simply on his
way home when he noticed “three boys all on one side of a car,” and that he fired
shots at the true perpetrators after he startled them by asking for a lighter. Hughley
explained that he was carrying his handgun with him that day because there is “a lot
of stuff that goes on around that area when you out late – late at night. And plus, you
hear gunshots every other night, so that’s why I always keep my personal handgun
on me.”
3
Hughley was charged with and a jury found him guilty of two counts of armed
robbery, two counts of aggravated assault and one count of possession of a firearm
by a convicted felon. His motion for new trial was denied.
1. Although Hughley has not challenged the sufficiency of the evidence against
him, we reviewed the record and conclude that the evidence outlined above was
sufficient to sustain his conviction. See OCGA § 16-8-41 (defining armed robbery);
16-5-21 (defining aggravated assault); 16-11-106 (defining possession of a firearm
during the commission of a felony).
2. Hughley argues that the trial court erred in overruling his challenge under
Batson v. Kentucky, 476 U. S. 79 (106 S.Ct. 1712, 90 LE2d 69) (1986), asserting that
the State had improperly used two of its peremptory strikes against the only two
African-American males on the venire panel. We find no error.
There were 47 prospective jurors on the venire panel, and 32 of them would be
qualified for potential selection. At the end of voir dire, Hughley raised a challenge
pursuant to Batson, asserting that Juror Number 6 and Juror Number 24, both
African-American men, had been improperly struck. The trial court then asked about
the racial and gender composition of the venire panel and the jury that had been
selected. The attorneys and the trial court seemed to agree that there were five
4
qualified African-Americans on the panel and that the State struck two of them. The
State argued that there were three African-Americans in the jury pool that the State
had accepted, but that Hughley had struck. One African-American woman was
empaneled on the jury. Based on this information, the trial court ruled that Hughley
had not made a prima facie case under Batson.
When one party objects that another has unconstitutionally
discriminated on the basis of race in its use of peremptory strikes, the
objecting party bears the burden of making out a prima facie case of
purposeful discrimination. To make out a prima facie case, the objecting
party must show that the totality of the relevant facts gives rise to an
inference of discriminatory purpose. It is not enough for the objecting
party to note that prospective jurors of a certain race were struck by the
other party. In addition, the objecting party must show that there are
good reasons to think that those prospective jurors were struck on
account of their race. In considering all relevant circumstances, a pattern
of strikes against black jurors included in the particular venire might
give rise to an inference of discrimination.
(Citation and punctuation omitted.) Bannister v. State, 306 Ga. 289, 298 (4) (830
SE2d 79) (2019). In J. E. B. v. Alabama, 511 U. S. 127 (114 SCt 1419, 128 LE2d 89)
(1994), the United States Supreme Court extended its holding in Batson, supra, to
instances where peremptory strikes are exercised solely on the basis of gender, and
5
the “three-part test utilized to review claims of race discrimination under Batson is
also applied to analyze gender discrimination claims.” (Citation omitted.) Shell v.
State, 264 Ga. App. 547, 547 (1) (591 SE2d 450) (2003). Accord Tedder v. State, 265
Ga. 900 (463 SE2d 697) (1995). We review a trial court’s factual findings on such a
motion “with great deference and [they] may be disregarded only if clearly
erroneous.” (Citations omitted.) Hightower v. State, 220 Ga. App. 165, 166 (1) (469
SE2d 295) (1996).
Hughley argues that the trial court erred in this ruling because his Batson
challenge was not to the strikes of African-American jurors in general, but the
striking of all available African-American males from the jury pool. Hughley has
cited to no United States Supreme Court nor Georgia precedent ruling that the
protections of Batson extend to combined race-gender groups.1 However, in a similar
case, the Eleventh Circuit has declined to recognize a race-gender group as a
“cognizable racial group.” See U. S. v. Dennis, 804 F.2d 1208 (11th Cir. 1986).
1
Although the appellant in Bannister, supra, argued that the trial court erred
in denying his Batson challenge on the grounds that the State struck five of the eight
available African-American women on the venire panel, our Supreme Court did not
render a decision as to whether a gender-race class constituted a “certain cognizable
group of prospective jurors.” Bannister, 306 Ga. at 298-300 (4).
6
As an initial matter, the relevant cognizable racial group, for the
purposes of our analysis, is the group of blacks generally and not just
black males, as [Hughley] urge[s]. The test we apply to determine
whether [the struck jurors] are members of a cognizable racial group
under Batson, is the test applied in Castaneda v. Partida, 430 U. S. 482
(97 S.Ct. 1272, 51 LE2d 498), cited in Batson[.] Such a group is “one
that is a recognizable, distinct class, singled out for different treatment
under the laws, as written or as applied.” Castaneda, [supra]. The group
of blacks generally clearly qualifies under this definition; [Hughley has]
failed to show, however, that black males constitute a distinct,
recognizable subclass of individuals who have been singled out for
different treatment under the laws not simply as blacks, but as black
males. It would therefore be inappropriate for us to narrow the
“cognizable racial group,” . . . to include only black males and exclude
black females.
Id. at 1210 (VII).
Here, the State used only two of its peremptory challenges during the selection
of the twelve jurors who decided the case to strike African-American men. Hughley
also used two of his peremptory challenges to strike African-Americans that had been
accepted by the State. It is “obvious that the [State] did not attempt to exclude all
blacks, or as many blacks as it could, from the jury.” Dennis, supra. Because Hughley
7
failed to make out a prima facie case of purposeful discrimination under Batson,
supra, the trial court did not err in denying his Batson challenge.
3. Hughley argues that the trial court erred by failing to grant a mistrial or to
rebuke the prosecution and give corrective instructions to the jury after he objected
to the State’s closing argument on the grounds that it injected prejudicial matters not
in evidence. We find no error.
During its closing argument, the State told the jury
Officer Hartman came and he testified. He said he . . . canvassed the
area. And he said he talked to some of the neighbors. And the neighbors
said they heard gunshots, but they didn’t come out or they didn’t
investigate. Why? Because — it’s not unusual for people to live with the
blast of gunshots surrounding them, with DeAnthony Hughley and his
posse roaming the street, never leaving home without their masks and
guns, like it’s an AmEx card. Think of not only the fear they’ve instilled
on the victims of this incident but the neighbors. They just lock
themselves in their home. . . .
Defense counsel then objected to this statement “as being improper character
evidence” and moved for a mistrial. The trial court overruled the objection without
comment. Hughley now argues that the trial court erred in denying its motion because
the State injected prejudicial matters not in evidence during closing argument.
8
Specifically, he objects to the State’s references to Hughley’s “posse” that “roamed
the street,” that he never left the house without his mask and guns and that the
neighbors lived in fear.
The only objection Hughley raised below, however, was not the same one he
now asserts on appeal in his enumeration of error and brief. At trial, Hughley objected
to the closing argument on the grounds that it introduced improper character
evidence. On appeal, Hughley now argues that the trial court erred by injecting
prejudicial matters not in evidence during closing argument. “Therefore, he has
waived all issues of admissibility to which he failed to pose a timely, specific
objection at trial, and we will not consider an argument raised for the first time on
appeal.” Hunter v. State, 273 Ga. App. 52, 54 (2) (614 SE2d 179) (2005).
Even if this enumeration were properly before us, moreover, it is without merit.
“A prosecutor is granted wide latitude in the conduct of closing argument, the bounds
of which are in the trial court’s discretion. Within that wide latitude, a prosecutor may
comment upon and draw deductions from the evidence presented to the jury.”
(Citations and punctuation omitted.) Booth v. State, 301 Ga. 678, 688 (4) (804 SE2d
104) (2017). Further, “it is appropriate . . . for the prosecutor to urge the jury to
convict the defendant for the safety of the community or to curb an epidemic of
9
violence in the community[.]” Faust v. State, 302 Ga. 211, 220 (4) (c) (805 SE2d 826)
(2017). Here, the objected-to evidence was rooted in the evidence at trial. Office
Hartman testified that residents in the area had told him that they did not come out of
their houses after hearing gunshots and that it was common to hear gunshots in the
area. Hughley testified that “I always keep my personal handgun on me[,]” and
Thompson testified that Hughley was accompanied by masked individuals that night.
“While [Hughley] objects to the statements made by the [S]tate as improperly
characterizing the evidence, the statements did not introduce new facts but merely
commented on the evidence presented to the jury, and they do not require granting
[Hughley] a new trial.” (Punctuation and footnote omitted.) Whatley v. State, 296 Ga.
App. 72, 76 (3) (637 SE2d 510) (2009).
4. Hughley claims that he was denied effective assistance of counsel when his
trial counsel failed to file an out-of-time statutory speedy trial demand after the trial
court granted him permission to do so. For the following reasons, we find no
reversible error.
When reviewing the trial court’s denial of appellant’s claim that the delay in
trying his case constituted ineffective assistance of counsel, “we apply an analysis
based on [Strickland v. Washington, 466 U. S. 668 (104 S.Ct. 2052, 80 LE2d 674)
10
(1984)] – that is, whether appellant demonstrated both deficient performance and that
he suffered prejudice as a result of such alleged deficiency.” (Citations omitted;
emphasis supplied.) Jones v. State, 296 Ga. 561, 569 (6) (769 SE2d 307) (2015).
Under OCGA § 17-7-171, “[a]ny person accused of a capital offense may enter
a demand for a speedy trial at the term of court at which the indictment is found or at
the next succeeding regular term thereafter; or, by special permission of the court, the
defendant may at any subsequent term thereafter demand a speedy trial.” OCGA §
17–7-171 (a). See also Crawford v. State, 252 Ga. App. 722, 723 (1) (556 SE2d 888)
(2001) (“Although armed robbery is not a capital offense punishable by death, OCGA
§ 17-7-171 is the statute that applies to that offense”) (citation omitted). Thereafter,
“[i]f more than two regular terms of court are convened and adjourned after the term
at which the demand for speedy trial is filed and the defendant is not given a trial,
then the defendant shall be absolutely discharged and acquitted of the offense charged
in the indictment,” so long as (1) juries were impaneled and qualified to try the
defendant during both terms and (2) the defendant was “present in court announcing
ready for trial and requesting a trial on the indictment.” OCGA § 17-7-171 (b). In
Walker v. State, 290 Ga. 696 (723 SE2d 894) (2012), our Supreme Court held that
“more than two regular terms of court” means just that – a number of regular court
11
terms greater than two.” Id. at 698 (2). Therefore, “under the plain language of OCGA
§ 17-7-171 (b), a defendant accused of a capital offense may be discharged and
acquitted only if [he] is not given a trial after at least three full terms of court have
expired since the term in which [his] demand was filed.” Id. The terms of court for
Fulton County begin on the “First Monday in January, March, May, July, September
and November.” OCGA § 15-6-3 (3).2
On April 22, 2013, Hughley’s trial counsel requested permission to file an out-
of-time demand for speedy trial. The trial court addressed the motion in a hearing on
May 1, 2013. Defense counsel asked to file an out-of-time speedy demand or that the
trial court try the case at the next available calendar in June. The trial court orally
granted Hughley’s motion to file an out-of-time demand for a speedy trial and noted
that, once it was filed, the case would need to be tried by the end of October based on
its mistaken belief that the May/June term of court in Fulton County began on May
1, 2013.3 When it asked defense counsel if this was correct, defense counsel agreed.
2
OCGA § 15-6-3 has since been amended several times since 2013, but the
terms of court applicable to Fulton County have not changed. See Laws 2009, Act
210, §1, effective January 1, 2010.
3
May 1, 2013, was a Wednesday, and so the motion to file an out-of-time
demand for speedy trial was filed in the March term of court. See OCGA § 15-6-3 (3).
12
The trial court entered an order granting the motion the same day. However, trial
counsel did not file a demand pursuant to this order. See OCGA § 17-7-171 (“A
demand for trial filed pursuant to this Code section shall be filed as a separate,
distinct, and individual document”); Smith v. State, 261 Ga. 298, 299 (2) (404 SE2d
115) (1991) (“While a trial court can grant a defendant special permission to file an
out-of-time demand for speedy trial, a trial court cannot actually make that demand
for defendants”).
Because the trial court’s order granting Hughley’s motion for an out-of-time
speedy trial demand was filed on Wednesday, May 1, 2013, it was filed in the
March/April 2013 term of court. See OCGA § 15-6-3 (3) (the May/June 2013 term
of court did not commence until the first Monday in May). If Hughley’s trial counsel
had filed the speedy trial demand on May 1, 2013, in accordance with OCGA § 17-7-
171, the trial court would have had until the first Monday in November (November
4, 2013), to commence his case. Hughley was not tried until November 12, 2013.
Even assuming Hughley’s trial counsel rendered deficient performance,
Hughley has not shown that he was prejudiced by his trial counsel’s alleged error in
failing to file a demand for speedy trial. To show the prejudice component of the
13
Strickland test, a defendant must show a reasonable probability that the outcome of
the case would have been different. Smith v. State, __ Ga. __ (3) (839 SE2d 630)
(2020). Hughley argues that his case would have been discharged because it was tried
after the applicable term of court expired. However, Hughley cannot prove whether
he would have been tried earlier if his trial counsel had properly filed a speedy trial
demand. During the May 1, 2013, hearing, the trial court agreed to expedite
Hughley’s trial and put it on the “front-burner.” However, when the speedy trial
demand was not filed, the trial court may have reasonably concluded that Hughley
abandoned his intent to file a speedy trial demand and adjusted its trial calendar
accordingly. This is especially true when trial counsel testified at the motion for new
trial that he very rarely filed speedy trial demands because they were not always
beneficial to defendants, that he did not think it would have been helpful for Hughley,
and that he did so only at Hughley’s request. Compare Crawford v. State, 278 Ga.
517, 519 (603 SE2d 259) (2004) (defendant was entitled to habeas relief because his
trial counsel was ineffective by failing to comply with the strict requirements of
OCGA § 17-7-171 when its speedy trial demand cited to the wrong statute and that
defendant was thereby prejudiced, and further holding that defendant was also
14
prejudiced by appellate counsel’s failure to raise ineffective assistance of counsel
claim on appeal).
Judgment affirmed. Reese, P. J., and Markle, J., concur.
15
Deanthony Hughley v. State
Combined Opinion