Smith v. State ( 2022 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: May 17, 2022
S22A0271. SMITH v. STATE.
MCMILLIAN, Justice.
Tracy LaShawn Smith appeals his conviction for felony murder
in connection with the death of Jerome Walden.1 On appeal, Smith
1 Walden was killed on June 24, 2011. On September 28, 2011, a
Dougherty County grand jury indicted Smith, Calvin Sharmond Brooks, and
Demarcus Dontravious Lewis in connection with Walden’s death, charging
them with felony murder (Count 1), aggravated assault (Count 2), and
aggravated battery (Count 3). Smith was first tried separately in a jury trial
from December 12 to 20, 2011. The jury found Smith guilty of aggravated
assault and aggravated battery but was unable to reach a verdict on the felony
murder charge in Count 1. The trial court granted a mistrial as to that count,
and Smith filed a plea in bar on double jeopardy grounds to prevent his retrial
for felony murder. The trial court denied the plea, and this Court affirmed that
denial in Smith v. State, 292 Ga. 478, 479 (1) (738 SE2d 621) (2013).
Upon return of the remittitur from that appeal, Smith was tried a second
time from April 22 to May 2, 2013. Although Smith was scheduled to be tried
along with Lewis and Brooks, Lewis pleaded guilty to aggravated assault and
aggravated battery on the first day of trial, and the trial court granted Brooks’s
motion for severance. Therefore, Lewis’s and Brooks’s cases are not a part of
this appeal. Smith was again tried separately on the sole count of felony
murder, and the jury found him guilty. The trial court sentenced Smith to serve
life in prison on the felony murder charge, and the aggravated assault and
aggravated battery convictions were merged. Smith’s trial counsel filed a
asserts that the trial court erred in overruling his special demurrer
to the felony murder charge. He further argues that the trial court
erred in failing to grant a new trial on his claims of constitutionally
ineffective assistance of trial counsel, based on counsel’s failure to
(1) object to the verdict form and the trial court’s jury instruction on
felony murder, which Smith contends allowed the jurors to render a
potentially non-unanimous verdict; (2) file a general demurrer as to
the felony murder count; and (3) file a plea in bar on the ground that
Smith was not re-tried within the time period required by his
statutory speedy trial demand. We affirm for the reasons discussed
below.
The evidence presented at trial showed that on or about June
22, 2011, Smith sold Walden $30 worth of crack cocaine and a pack
of cigarettes “on credit.” Two days later, on the night of June 24,
timely motion for new trial, which was amended by new counsel on September
13, 2019, and by appellate counsel on October 3 and 14, 2019. The motion for
new trial was heard on March 6 and December 2, 2020, and the trial court
denied the motion, as amended, on March 2, 2021. Smith filed a timely notice
of appeal, and the case was docketed to the term of this Court beginning in
December 2021 and orally argued on February 17, 2022.
2
Demarcus Dontravious Lewis was riding with Smith and Calvin
Sharmond Brooks when Smith told the others that he was going to
collect the money Walden owed him. Lewis said that the three drove
to Melissa Moncrief’s house to find Walden, and Smith knocked on
the door. Walden was at Moncrief’s house, and when Smith asked
for his money, Walden said he did not have it. Smith left briefly but
then returned and knocked again. Walden again said he did not have
the money and shut the door. Lewis said that Smith went to the side
of Moncrief’s house and grabbed a board with nails in it on his way
to Moncrief’s back door.
As Smith entered Moncrief’s house carrying the board, Walden
ran out the front door and down an alley beside the house. Brooks
and Lewis pursued Walden. When they caught up to Walden, Lewis
hit him and knocked him down. According to Lewis, both he and
Brooks then kicked Walden. Smith arrived on the scene, and Lewis
said Smith used the board to beat Walden “from his stomach to his
head.” A witness who was in the vicinity at the time saw someone
lying in the alley with two men standing over him – Smith and a
3
person the witness knew as “Wocka-Flocka.”2 The witness said that
Wocka-Flocka was kicking the person on the ground, and Smith was
beating the person with a board.
Moncrief testified that, while inside her house, she could hear
the sounds of someone being beaten outside and told her sister to
call 911. When Moncrief went outside to check on Walden, she saw
Lewis jumping up and down on Walden in the alley. As Smith and
the others began to leave, Moncrief asked about Walden, and Smith
replied, “Oh, we just knocked that n****r out.” Smith and the others
then left Walden in the alley. Walden never regained consciousness
and later died from what the medical examiner described as
“complications of blunt force injuries of the head.”
1. Smith first contends that the trial court erred by overruling
his special demurrer, asserting that Count 1 of the indictment
alleging felony murder was duplicitous because it was predicated on
the commission of aggravated assault “and/or” aggravated battery.
2 This witness did not know Wocka-Flocka by any other name, but upon
reviewing a police photo lineup, Moncrief identified Lewis as “Wocka-Flocka.”
4
“We review [the trial court’s] ruling on [Smith’s] special demurrer
de novo to determine the legal sufficiency of the allegations in the
indictment.” Bullard v. State, 307 Ga. 482, 486 (2) (837 SE2d 348)
(2019).
“An [indictment] is duplicitous if it joins separate and distinct
offenses in one and the same count. ‘Duplicity’ is the technical fault
in pleading of uniting two or more offenses in the same count of an
indictment.” State v. Boyer, 270 Ga. 701, 703 (2) (512 SE2d 605)
(1999) (citations and punctuation omitted). However, “[t]he
longstanding rule in Georgia is that an indictment may take the
form of a single count which contains alternative allegations as to
the various ways in which the crime may have been committed.”
Dugger v. State, 297 Ga. 120, 123 (5) (772 SE2d 695) (2015) (citation
and punctuation omitted). See also Morris v. State, 280 Ga. 179, 181
(3) (b) (626 SE2d 123) (2006) (“This court has long held that where
one offense could be committed in several ways, it is permissible to
incorporate the different ways in one count.” (quoting Leutner v.
State, 235 Ga. 77, 79 (2) (218 SE2d 820) (1975)).
5
Count 1 of the indictment charged Smith with felony murder
“for that the said accused . . . while in the commission of the offense
of aggravated assault, a felony, and/or aggravated battery, a felony,
did, acting jointly and in concert with another as parties to the crime
thereto, cause the death of Jerome Walden[.]” Smith filed a special
demurrer to the indictment, asserting that the felony murder count
was defective because it charged multiple offenses – felony murder
based on aggravated assault and felony murder based on aggravated
battery – in the same count and citing OCGA § 16-1-7 (a) (2).3 The
3 OCGA § 16-1-7 (a) provides:
When the same conduct of an accused may establish the
commission of more than one crime, the accused may be prosecuted
for each crime. He may not, however, be convicted of more than
one crime if:
(1) One crime is included in the other; or
(2) The crimes differ only in that one is defined to prohibit a
designated kind of conduct generally and the other to
prohibit a specific instance of such conduct.
We note that in Hall v. State, 241 Ga. App. 454, 459 (525 SE2d 759) (1999), the
Court of Appeals stated without analysis of the statutory language that “OCGA
§ 16-1-7 (a) (2) prohibits multiple prosecutions, including the defect of
duplicity” and then explained the concept of duplicity by quoting from Boyer,
270 Ga. at 703 (2). However, Boyer addressed whether OCGA § 16-1-7 (a) (2)
prohibited charging two different offenses based on the same transaction in
two separate counts of the indictment and concluded that such pleading was
not prohibited by the statute. We need not address the bases of the duplicity
doctrine or whether it stems from OCGA § 16-1-7 in order to resolve this
6
trial court denied the special demurrer at a subsequent hearing on
the matter.
Contrary to Smith’s argument, Count 1 of the indictment
charged Smith with only one offense – the unlawful killing of
Walden during the commission of a felony in violation of OCGA § 16-
5-1 (c). 4 Although it alleged alternate ways that the crime of felony
murder was committed, i.e., during the commission of aggravated
assault and/or during the commission of aggravated battery, such
an allegation is proper under Georgia law. Therefore, the trial court
correctly determined that Count 1 was not subject to a special
demurrer on the ground of duplicity. See Lumpkins v. State, 264 Ga.
255, 256 (1) (443 SE2d 619) (1994) (recognizing that it is permissible
to charge felony murder in one count of an indictment, “which
alternatively alleged the underlying felonies”). Cf. Leutner, 235 Ga.
enumeration of error. See Long v. State, 12 Ga. 293, 314 (1852) (“[T]here is no
doubt of the rule that two distinct offenses cannot be joined in the same
count.”).
4 Under OCGA § 16-5-1 (c), “[a] person commits the offense of murder
when, in the commission of a felony, he or she causes the death of another
human being irrespective of malice.”
7
at 79 (2) (indictment not subject to special demurrer where it
incorporated elements of both malice murder and felony murder
under former Ga. Code Ann. § 26-1101 in one count (now codified at
OCGA §§ 16-5-1 (a) (malice murder) and 16-5-1 (c) (felony murder))).
2. Smith also asserts that the trial court erred in failing to
grant a new trial based on his three claims of ineffective assistance
of trial counsel.
To establish these claims of constitutionally ineffective
assistance of counsel, Smith must show both that his trial counsel’s
performance was deficient and that he suffered prejudice as a result.
See Strickland v. Washington, 466 U.S. 668, 687 (II) (104 SCt 2052,
80 LE2d 674) (1984). “An appellant must prove both prongs of the
Strickland test, and if he fails to prove one prong, it is not incumbent
upon this Court to examine the other prong.” Winters v. State, 305
Ga. 226, 230 (4) (824 SE2d 306) (2019) (citation and punctuation
omitted).
To establish deficient performance, an appellant must
overcome the strong presumption that his counsel’s
conduct falls within the broad range of reasonable
8
professional conduct and show that his counsel performed
in an objectively unreasonable way in light of all the
circumstances and prevailing norms.
Hughes v. State, 312 Ga. 149, 154 (2) (861 SE2d 94) (2021) (citation
and punctuation omitted). To establish the prejudice prong, Smith
must show “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694 (III) (B).
(a) Smith asserts that his trial counsel’s performance was
deficient because he failed to object to the trial court’s jury
instruction on the charge of felony murder and to the general verdict
form provided to the jury, which he contends allowed the jury to
return a potentially non-unanimous verdict on felony murder. See
Ramos v. Louisiana, __ U.S. __ (140 SCt 1390, 1397, 206 LE2d 583)
(2020) (holding that the jury unanimity requirement under the
Sixth Amendment to the United States Constitution applies to state
and federal criminal trials equally); Richardson v. United States,
526 U.S. 813, 824 (II) (B) (119 SCt 1728, 144 LE2d 1) (1999) (holding
that the jury must agree unanimously about which specific
9
violations made up “the continuing series of violations” required for
conviction under former 21 USC § 848 (a) based on a statute-specific
analysis of the unanimity requirement).
Smith contends that his trial counsel should have objected to
the following portion of the trial court’s final instruction to the jury:
If you find and believe beyond a reasonable doubt that [the]
defendant committed the homicide alleged in this bill of indictment
at the time [the] defendant was engaged in the commission of the
felony of aggravated assault or aggravated battery, then you would
be authorized to find the defendant guilty of murder, whether the
homicide was intended or not. He further asserts that his trial
counsel should have objected to the jury’s use of a general verdict in
considering the felony murder count. 5 He argues that the instruction
and the verdict form allowed the jurors to convict him of felony
murder even if they were not in unanimous agreement on the
5 At the hearing on Smith’s special demurrer as to the felony murder
count, the trial court noted that any confusion as to which of the two predicate
offenses the jury found in potentially convicting Smith could be eliminated by
using a verdict form that allowed the jurors to indicate the underlying felony
upon which they relied. Nevertheless, a general verdict form was used at trial.
10
underlying felony upon which his felony murder conviction was
based. In other words, some jurors may have found him guilty of
felony murder based on aggravated assault, while others may have
found him guilty of that charge based on aggravated battery.
We considered a similar issue in Miller v. State, 275 Ga. 730,
738 (6) (571 SE2d 788) (2002). The defendant in Miller was also
charged with felony murder based on aggravated assault and
aggravated battery and was further charged with separate counts of
aggravated battery and aggravated assault. As in this case, the trial
court charged the jury that it could find the defendant guilty of
felony murder based upon aggravated assault or based upon
aggravated battery. 6 See id. We rejected the defendant’s argument
that his felony murder conviction was deficient on the ground that
the court’s jury charge “may have led to a less than unanimous
verdict,” concluding that because the jury also convicted him of both
6Although the Miller opinion does not expressly address the verdict form
used by the jury, it appears from the defendant’s argument that the verdict
form did not clarify the underlying felony upon which the felony murder
conviction was based.
11
of the alleged underlying felonies, aggravated assault and
aggravated battery, “there [were] two independent underlying
felony convictions that sustain the felony murder conviction.” Id.Smith likewise was charged and convicted of the offenses of
aggravated assault and aggravated battery underlying the charge of
felony murder, 7 but a different jury found him guilty of those
offenses. Miller did not address such a scenario, and Smith has not
cited, and we have not found, any binding legal authority addressing
how the unanimous jury rule applies to the circumstances presented
here when a jury was instructed that it may find a defendant guilty
of felony murder based on alternate predicate offenses, but a prior
jury determined that the defendant was guilty of those predicate
offenses. It is well settled that “[a] criminal defense attorney does
not perform deficiently when he fails to advance a legal theory that
would require an extension of existing precedents and the adoption
of an unproven theory of law.” Esprit v. State, 305 Ga. 429, 438 (2)
7 Smith has not appealed his convictions for aggravated assault and
aggravated battery.
12
(c) (826 SE2d 7) (2019) (citation and punctuation omitted). Because
there is no clear legal authority on how the unanimous jury rule
applies when the predicate offenses of a felony murder count are
charged in the alternative and different juries decide the main
charge and the predicate offenses, “trial counsel’s failure to raise a
novel legal argument does not constitute ineffective assistance of
counsel.” Griffin v. State, 309 Ga. 516, 520 (2) (847 SE2d 168) (2020)
(citation and punctuation omitted). See also Rhoden v. State, 303
Ga. 482, 486 (2) (a) (813 SE2d 375) (2018) (“[T]here is no
requirement for an attorney to prognosticate future law in order to
render effective representation. Counsel is not obligated to argue
beyond existing precedent.” (citations and punctuation omitted)).
Accordingly, Smith cannot show that his trial counsel
performed deficiently in failing to raise the objections Smith now
claims counsel should have, and we conclude that the trial court
properly denied Smith's motion for new trial on this ground.
(b) Smith further contends that his trial counsel was ineffective
in failing to file a general demurrer to the felony murder count
13
because it failed to allege all the elements of the underlying
predicate offenses for that charge.
A general demurrer challenges the legality, validity, and
substance of an indictment by asserting that the
indictment is fatally defective and thus incapable of
supporting that a crime was committed; it can be granted
only if the defendant could admit each and every fact
alleged in the indictment and still be innocent of any
crime.
State v. Owens, 312 Ga. 212, 220 (4) (b) (862 SE2d 125) (2021). Smith
contends that the felony murder count alleged only the elements of
misdemeanor assault and battery, and not all the elements of
aggravated assault and aggravated battery, and thus Smith could
have admitted each and every fact alleged and not be guilty of felony
murder. We disagree.
As an initial matter, we note that Smith was originally indicted
and tried on three counts – felony murder, aggravated assault, and
aggravated battery – and Smith does not contend that the counts
charging aggravated assault and aggravated battery failed to charge
those offenses completely. However, at the retrial, after he was
convicted on the other two counts, only the felony murder count of
14
the indictment was presented to the jury, and that count charged
that Smith committed felony murder by causing Walden’s death
“while in the commission of the offense of aggravated assault, a
felony, and/or aggravated battery, a felony.” See OCGA §§ 16-5-21
(b), 16-5-24 (b) (defining the crimes as felonies). Assuming without
deciding that we should focus our analysis only on the felony murder
count of the indictment under the unusual circumstances of this
case, the allegations of the indictment are sufficient to withstand a
general demurrer “because appellant cannot admit he caused the
death of the victim while in the commission of aggravated assault
[or the felony of aggravated battery] and not be guilty of the crime
of felony murder.” Stinson v. State, 279 Ga. 177, 179 (2) (611 SE2d
52) (2005) (indictment redacted to one count charging felony murder
based on “aggravated assault” without alleging the elements of that
predicate crime was not subject to general demurrer). See also Lowe
v. State, 276 Ga. 538, 539 (1) (579 SE2d 728) (2003) (indictment that
merely alleged that defendant caused the victim’s death while
engaged in the commission of aggravated battery was sufficient to
15
withstand a general demurrer). 8
Accordingly, because a general demurrer would have been
meritless in this case, the trial court properly found that counsel was
not ineffective in failing to make such a filing. See White v. State,
307 Ga. 882, 889 (3) (c) (838 SE2d 828) (2020) (“The failure to make
a meritless motion or objection does not provide a basis upon which
to find ineffective assistance of counsel.” (citation and punctuation
omitted)).
(c) Smith next contends that his trial counsel provided
ineffective assistance by failing to move for Smith’s acquittal after
the State failed to try him on the felony murder charge within the
period authorized by the speedy trial statute for capital cases. See
OCGA § 17-7-171. Cf. OCGA § 17-7-170 (speedy trial statute for
8 To the extent that Smith is claiming that the indictment presented at
the second trial was deficient because it did not contain the essential elements
of the underlying crimes of aggravated assault and aggravated battery, that
claim is in the nature of a special demurrer. See Stinson, 279 Ga. at 180 (2).
And the failure to file a special demurrer generally will not support a finding
of ineffective assistance of counsel because a defendant can be reindicted after
the grant of a special demurrer, unless there are other reasons why a further
indictment is barred. See Bighams v. State, 296 Ga. 267, 271 (3) (765 SE2d
917) (2014).
16
noncapital cases).
Subsection (a) of OCGA § 17-7-171 sets out the requirements
for a defendant accused of a capital offense to file a valid statutory
speedy trial demand, and subsection (b) provides:
If 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,
provided that at both terms there were juries impaneled
and qualified to try the defendant and provided, further,
that the defendant was present in court announcing ready
for trial and requesting a trial on the indictment.
This Court has determined that “under the plain language of OCGA
§ 17-7-171 (b), a defendant accused of a capital offense may be
discharged and acquitted only if she is not given a trial after at least
three full terms of court have expired since the term in which her
demand was filed.” Walker v. State, 290 Ga. 696, 698 (2) (723 SE2d
894) (2012) (citing statutory language requiring “more than two
terms” to expire before discharge and acquittal granted to
defendant). Moreover, under the language of the statute, the State
is required to try a defendant in a particular term, only if there are
17
juries impaneled and qualified to try the defendant and the
defendant is “present in court announcing ready for trial” and
requesting a trial under the indictment. See Azizi v. State, 274 Ga.
207, 208 (553 SE2d 273) (2001) (“OCGA § 17-7-171 sets forth strict
requirements for the assertion of speedy trial rights and stringent
adherence to those requirements is mandated.”); Henry v. James,
264 Ga. 527, 528 (1) (a) (449 SE2d 79) (1994) (addressing statutory
requirements); Smith v. State, 261 Ga. 298, 299 (1) (404 SE2d 115)
(1991) (same).
Smith filed his demand for speedy trial on October 17, 2011,
during the September 2011 term of the Superior Court of Dougherty
County. 9 Smith was first tried from December 12 to 20, 2011, during
the next court term, the November 2011 term. Therefore, he was
given a trial during the time period prescribed by the statute.
However, as previously discussed, Smith was convicted of
aggravated assault (Count 2) and aggravated battery (Count 3) at
9 See OCGA § 15-6-3 (15) (providing that Dougherty County terms of
court begin on the second Monday in January, March, May, July, September,
and November).
18
that trial, but because the jury could not reach a verdict as to the
felony murder charge under Count 1 of the indictment, the trial
court declared a mistrial as to that count.
“Where a defendant has filed a demand for trial, a mistrial
resulting from other than ‘inevitable accident such as the death or
sickness of the judge or one or more of the jury’ . . . does not
constitute a trial that satisfies the State’s obligation under the
demand for trial statutes.” State v. Varner, 277 Ga. 433, 435 (589
SE2d 111) (2003) (quoting Geiger v. State, 25 Ga. 667, 668 (1858)).
Thus, pursuant to Smith’s speedy trial demand, which was filed in
the September 2011 term of court, he was required to be retried by
the end of the March 2012 term of court, which was the third full
term of court after the filing of the speedy trial demand.
However, subsequent proceedings prevented such a retrial
during the remainder of the November 2011 term and the next two
terms of court. On January 3, 2012, before the November 2011 court
term expired, Smith filed a plea in bar to prevent his retrial on the
felony murder charge. During the pendency of that motion, the State
19
had no obligation to try Smith because he was not appearing in open
court announcing ready for trial, nor was he seeking a trial under
the indictment. To the contrary, he was seeking to prevent such a
trial. See Azizi, 274 Ga. at 208 (affirming denial of motion for
discharge and acquittal where defendant failed to strictly comply
with requirements to appear in open court and announce ready for
trial); Smith, 261 Ga. at 299 (1) n.3 (compliance with requirement of
being present in court and announcing ready for trial is mandatory
and can be accomplished either by defendant himself or his counsel).
Additionally, the record is silent as to whether Smith was present in
court and announced ready for trial during the holiday period
between the end of his trial on December 20, 2011, and the filing of
the plea in bar on January 3, 2012, and Smith has not pointed us to
any evidence that juries were impaneled and qualified to try Smith’s
case during that time frame. See Varner, 277 Ga. at 435 (retrial
following a mistrial only needs to occur during portions of terms in
which jurors are impaneled and qualified to hear the case).
The trial court denied Smith’s plea in bar on February 8, 2012,
20
and Smith appealed that ruling the next day. This occurred in the
January 2012 term of court. The parties do not dispute that “the
demand clock” was tolled during the pendency of the appeal. See
Henry, 264 Ga. at 530-31 (1) (c) (period of time within which a
defendant must be tried pursuant to speedy trial demand is tolled
while the appellate court has jurisdiction of the appeal). And this
Court has established that (1) the demand clock does not begin to
run again until the remittitur has been filed in the trial court
following the appeal and (2) the State has the remainder of the term
in which it is filed and one additional regular term in which to try
the defendant. See id. at 530 (1).
Here, this Court affirmed the trial court’s denial of the plea in
bar on February 18, 2013, and the remittitur was filed in the trial
court on March 8, the last day of the January 2013 term of court. 10
The March 2013 term began on Monday, March 11, and Smith was
tried on the felony murder charge during that term, from April 22 to
10In fact, the record reflects that the remittitur was not filed until 3:01
p.m. that day.
21
May 2, 2013. Thus, Smith was tried during the term following the
filing of the remittitur, and no speedy trial violation occurred.
Accordingly, the trial court correctly determined that trial
counsel was not ineffective in failing to file a meritless motion of
acquittal. See White, 307 Ga. at 889 (3) (c).
Judgment affirmed. All the Justices concur.
22