Brannon v. State , 298 Ga. 601 ( 2016 )

In the Supreme Court of Georgia
Decided: March 7, 2016
S15A1724. BRANNON v. THE STATE.
THOMPSON, Chief Justice.
Appellant Stewart Brannon was found guilty of malice murder, felony
murder, armed robbery and aggravated assault with a firearm in connection with
the shooting death of Mario Smith.1 He appeals from the denial of his motion
for new trial, asserting that the trial court erred in refusing to hold that OCGA
§ 17-16-4, Georgia’s reciprocal discovery statute, required the State to turn over
law enforcement officers’ notes; erred in failing to find that the State withheld
exculpatory material from the defense in violation of Brady v. Maryland, 373
1
The crimes occurred on August 23, 2008. Appellant was indicted by a Houston County
grand jury on September 9, 2008, on charges of malice murder, felony murder (two counts), armed
robbery, and aggravated assault with a firearm. Following a jury trial from April 8-11, 2013,
appellant was found guilty on all counts. Upon receipt of the jury’s verdict, the trial court sentenced
appellant to life without the possibility of parole on the malice murder count and, as further
discussed in Division 2, infra, determined that the remaining counts merged into other counts for
sentencing purposes. Appellant filed a motion for new trial on April 12, 2013, which he amended
on August 19, 2014, and again on February 12, 2015. Following a hearing, the trial court entered
an order on March 24, 2015 denying the motion for new trial. Appellant filed a notice of appeal on
April 2, 2015 and the appeal was docketed in this Court for the September 2015 term and submitted
for a decision on the briefs.
U.S. 83 (83 SCt 1194, 10 LE2d 215) (1963) and Giglio v. United States, 405
U.S. 150 (92 SCt 763, 31 LE2d 104) (1972); erred in admitting other acts
evidence pursuant to OCGA § 24-4-404 (b); erred in allowing a police detective
to identify the victim in video evidence; erred in improperly rehabilitating a
witness for the State; and erred in failing to find he received ineffective
assistance of counsel at trial. Finding no error, we affirm appellant’s conviction
of malice murder. In view of a sentencing error, however, we vacate a portion
of the sentencing order and remand this case to the trial court for resentencing.
1. Viewed in the light most favorable to the jury’s verdict, the evidence
at trial showed the victim owned a 1987 red Chevrolet Monte Carlo which he
advertised for sale in Autotrader magazine in August of 2008. Appellant’s co-
defendant Joshua Rounsoville saw the advertisement and made arrangements to
see the car which the victim kept at a rented storage unit in Warner Robbins,
Georgia. On August 23, 2008, appellant, driving his mother’s black Ford F-150,
took Rounsoville to meet with the victim and see the car. Appellant knew
Rounsoville was carrying a gun. The next day, the victim was found dead in his
storage unit with a single gunshot wound to the head and a 9-mm shell casing
lying nearby.
2
Rounsoville, who pled guilty to the murder and testified at appellant’s
trial, admitted to shooting the victim in the storage bay with a 9-mm handgun.
He testified that he then drove the victim’s car to Eatonton with appellant
following in the F-150; that he and appellant left the stolen vehicle at a friend’s
house overnight; that they returned the next morning to retrieve the car which
had been damaged and stripped of its distinctive tires; and, that after obtaining
tires for the victim’s car, they drove it off the property. Darcus Lane testified
that appellant and Rounsoville brought the victim’s car to his house and that
both men returned the next day to retrieve the vehicle. The victim’s car was
subsequently found ditched in the woods.
Following his arrest, appellant admitted in a recorded statement that he
went to Warner Robins with Rounsoville to meet the victim and that he waited
for Rounsoville to leave in the victim’s car before following him back to Putnam
County where both defendants lived. Appellant’s statement was corroborated
at trial by videotape evidence from the storage facility taken on the day of the
crime which showed the victim’s black SUV pulling up to the storage building;
the red Monte Carlo exiting the premises with a black F-150 truck following
behind; the victim re-entering the storage building while the black F-150 waits;
3
and the Monte Carlo again exiting the premises followed by the F-150.
Additionally, another witness who was at a shop near the storage facility on the
day of the crime testified that he saw two black males leaning against a Monte
Carlo with a black F-150 truck parked nearby. Finally, evidence of appellant’s
guilty plea to a similar crime in which appellant and Rounsoville shot a man in
Monroe County, Georgia in order to steal his vehicle only 13 days prior to the
crime at issue was admitted into evidence.
We conclude the evidence in this case was sufficient to enable a rational
trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for
which he was convicted. See Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781,
61 LE2d 560) (1979).
2. While the evidence was sufficient to support the jury’s guilty verdicts
in this case, the trial court erred in merging certain counts for judgment and
sentencing. See Hulett v. State, 296 Ga. 49, 54 (766 SE2d 1) (2014). Although
the State has not appealed this sentencing error, upon noticing such merger
issues in a direct appeal, this Court may resolve them. See id; Nazario v. State,
293 Ga. 480, 488 (2) (b) (746 SE2d 109) (2013). Here, appellant was charged
with malice murder (Count 1), felony murder based on armed robbery (Count
4
2), armed robbery (Count 3), felony murder based on aggravated assault (Count
4) and aggravated assault with a firearm (Count 5) and was convicted by the jury
on all counts. The trial court correctly sentenced appellant on the malice murder
conviction, see Malcolm v. State, 263 Ga. 369, 372 (4) (434 SE2d 479) (1993),
but failed to recognize that the felony murder counts thereafter were vacated as
surplusage. See Hulett, supra at 53. As a result, the trial court improperly
merged the non-murder counts into the corresponding felony murder counts and
merged both felony murder counts into the malice murder count for sentencing.
Id. As the felony murder counts no longer existed, the only determination for
the trial court was whether the underlying felonies merged, as a matter of fact,
into the malice murder count. Id. Because there was no evidence presented
authorizing the jury to find that the aggravated assault with a firearm committed
on the victim was not followed almost immediately by the fatal shooting or that
a deliberate interval existed between the two events, we find that appellant’s
conviction for aggravated assault (Count 5) merges as a matter of fact into his
conviction for malice murder (Count 1). See id. at 55. See also Solomon v.
State, 293 Ga. 605, 606 (1) (748 SE2d 865) (2013). However, “‘because malice
murder has an element that must be proven (death of the victim) that armed
5
robbery does not, and armed robbery has an element (taking of property) that
malice murder does not,’” we find that appellant’s conviction for armed robbery
(Count 3) did not merge as a matter of fact with his malice murder conviction
(Count 1). Hulett, 296 Ga. at 55. The trial court, therefore, should have
sentenced appellant for Count 3, in addition to the sentence it imposed on Count
1. Accordingly, we vacate that portion of the sentencing order in which the trial
court “merged” Count 5 into Count 4, Count 3 into Count 2, and Counts 2 and
4 into Count 1, and remand this case to the trial court for re-sentencing on Count
3.
3. Appellant contends the trial court erred in denying his motion to
compel the State’s production of law enforcement officers’ notes pursuant to
OCGA § 17-16-4 and further erred in denying his claim on motion for new trial
that the State withheld exculpatory material from the defense in violation of
Brady, supra, 373 U.S. at 87. Additionally, appellant contends the trial court
erred in refusing to compel the State to provide the defense with information
about plea deals given to State witnesses as required by Giglio, supra, 405 U.S.
150. These contentions lack merit.
(a) Appellant, who was interrogated by officers from three separate
6
counties about several different crimes, moved to compel the State to produce
any and all information shared between law enforcement officers about their
various interrogations of appellant, including any of the officers’ handwritten
notes. Finding that the informal notes of law enforcement officials were not
included among the types of evidence the State is statutorily required to produce
in criminal cases, the trial court denied the motion. In so ruling, however, the
trial court reminded the State that it had a continuing obligation under Brady to
provide the defense with any law enforcement notes in the State’s possession
which contained potentially exculpatory information. See Brady, supra.
On motion for new trial, the trial court rejected appellant’s argument that
OCGA § 17-16-4 required the State to produce law enforcement officers’ notes,
and, finding no evidence that such notes containing exculpatory information had
been withheld from the defense by the State, or even existed, the trial court
found no merit to appellant’s claim that the State’s failure to produce these notes
violated Brady, supra. We agree.
By its plain language, OCGA § 17-16-4, which addresses Georgia’s
requirements for the disclosure of evidence in criminal trials and specifies the
types of evidence the State must turn over to the defense, does not include the
7
informal notes of law enforcement officials among the types of evidence the
State is statutorily required to produce. Accordingly, we find no error in the
trial court’s determination that absent a showing by the defense that it was
legally entitled to the discovery of such notes on some other basis, the State had
no duty to provide them under OCGA § 17-16-4. See King v. State, 273 Ga.
258, 263 (539 SE2d 783) (2000). See also Harper v. State, 249 Ga. 519, 528
(292 SE2d 389) (1982) (observing there is “‘no constitutional requirement that
the prosecution make a complete and detailed accounting to the defense of all
police investigatory work on a case,’” quoting Moore v. Illinois, 408 U. S. 786,
795 (92 SCt 2562, 33 LE2d 706) (1972)).
Although appellant disputes the trial court’s finding that the type of notes
he sought to compel did not exist, mere speculation is insufficient to substantiate
appellant’s claim that the State withheld exculpatory evidence which prejudiced
his defense. “To prevail on a Brady claim, a defendant must show (1) the State
possessed evidence favorable to the defendant; (2) the defendant did not possess
the favorable evidence and could not obtain it himself with any reasonable
diligence; (3) the State suppressed the favorable evidence; and (4) had the
evidence been disclosed to the defense, a reasonable probability exists that the
8
outcome of the trial would have been different.” Hester v. State, 292 Ga. 356,
358 (736 SE2d 404) (2013). Accord Banks v. Dretke, 540 U.S. 668, 691 (124
SCt 1256, 157 SE2d 1166) (2004). Because the record shows that appellant
failed to make any of the required showings under Brady, the trial court properly
rejected this claim.
(b) Nor do we find error in the trial court’s refusal to require the State to
obtain and supply information to the defense about plea deals allegedly given
to various State witnesses. The State has a duty to reveal to the defense any
agreement with a witness concerning criminal charges pending against that
witness, and the failure to disclose such an agreement constitutes a violation of
the accused’s due process rights under Brady, supra. See Giglio, supra, 405
U.S. at 154; Coleman v. State, 271 Ga. 800, 802 (523 SE2d 852) (1999). In
order to establish reversible error, however, a defendant must show that had
evidence of the agreement been disclosed, there exists a reasonable probability
that the result of the defendant’s trial would have been different. See Coleman,
supra.Here, the trial court found the prosecution was not involved in any
discussions with other law enforcement agencies outside of Houston County
9
regarding any plea offers made to any of the State’s witnesses at appellant’s
trial. The trial court further determined that the only plea offer made by the
State in this case was to Rounsoville, a deal the State revealed to appellant
during discovery. Having failed to come forward with any evidence supporting
his contention that plea deals were given to State witnesses by other
jurisdictions, appellant failed to make the showings required under Brady to
support his claim. See Hester, supra at 358.
4. Appellant next contends the trial court erred in holding that evidence
of the Monroe County crimes to which he pled guilty was admissible pursuant
to OCGA § 24-4-404 (b). We disagree.
Evidence of other crimes, wrongs, or acts committed by a defendant is
admissible to prove, among other things, motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or accident, but
cannot be used to prove the character of the defendant by presenting evidence
that the accused has a propensity to commit crime. See OCGA § 24-4-404 (b).
In the instant case, the trial court ruled that the evidence of the Monroe County
crimes could be considered by the jury for the purposes of showing appellant’s
knowledge, intent, participation in a plan, or identity. Appellant claims the trial
10
court erred in admitting this evidence because its probative value was
substantially outweighed by the danger of unfair prejudice. See OCGA § 24-4-
403.
In determining the admissibility of “other acts” evidence, this Court has
adopted the Eleventh Circuit’s three-part test for admissibility under Federal
Rule of Evidence Rule 404 (b) which requires that the admitting court find (1)
the evidence is relevant to an issue in the case other than the defendant’s
character, (2) the probative value is not substantially outweighed by undue
prejudice, and (3) there is sufficient proof for a jury to find by a preponderance
of the evidence that the defendant committed the prior act. See Bradshaw v.
State, 296 Ga. 650, 656 (769 SE2d 892) (2015), citing United States v. Ellisor,
522 F3d 1255, 1267 (11th Cir. 2008). When weighing the probative value of
other acts evidence against its prejudicial effect, Georgia courts apply the
balancing test set forth in OCGA § 24-4-403,2 which similarly tracks its federal
counterpart. See Fed. R. Evid. 403. On appeal, a trial court’s decision to admit
2
OCGA § 24-4-403 provides:
Relevant evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury or
by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.
11
evidence pursuant to OCGA § 24-4-404 (b) is reviewed for a clear abuse of
discretion, a review requiring the appellate court to make a “common sense
assessment of all the circumstances surrounding the extrinsic offense, including
prosecutorial need, overall similarity between the extrinsic act and the charged
offense, as well as temporal remoteness.” Bradshaw, 296 Ga. at 657-658
(citations and quotation marks omitted).
Assessing the circumstances surrounding the other acts evidence admitted
in this case we find that evidence of the Monroe County robbery and shooting
satisfied the three-part test for admissibility. First, this evidence was properly
admitted by the trial court to show appellant’s intent, knowledge and identity.3
Where appellant was prosecuted as a party to the murder and did not admit to
knowing what Rounsoville did to the victim in the storage bay, the State had the
burden to prove appellant and Rounsoville shared a common criminal intent.
See Navarrete v. State, 283 Ga. 156, 158 (656 SE2d 814) (2008) (observing
mere presence at the scene of a crime is insufficient evidence to convict one of
being a party to a crime). As proof of a common criminal intent may be inferred
3
Having determined that the evidence was admissible as to intent, knowledge and identity,
we need not examine whether it was also admissible to show participation in a plan. See Bradshaw,
supra at 657, n. 5.
12
from the defendant’s presence, companionship, and conduct before, during and
after an offense, see id, evidence of appellant’s prior participation in the Monroe
County crimes in which Rounsoville shot a man in order to steal his car, was
admissible to show appellant had knowledge of, and shared, Rounsoville’s
criminal intent in the instant case.
In addition, the Monroe County crimes were sufficiently similar to the
crimes at issue to be admissible as proof of identity. See Brooks v. State, __ Ga.
__ (S15A1480, March 7, 2016). See also United States v. Phaknikone, 605 F3d
1099, 1108 (11th Cir. 2010) (When introduced to prove identity, the physical
similarity of extrinsic offense evidence to the offense charged “‘must be such
that it marks the offenses as the handiwork of the accused.’”). Here, both
crimes, which occurred 13 days apart in neighboring counties, involved the
same two defendants stealing a car with distinctive tire rims after shooting the
vehicle’s owner. In each case, appellant used one of his mother’s cars to drive
Rounsoville to the scene of the crime, waited while Rounsoville shot the car’s
owner and took the vehicle, and then followed Rounsoville as he drove the
stolen car from the scene. We find that the modus operandi for each carjacking
was sufficiently similar to mark the offenses as appellant’s handiwork. See
13
United States v. Clemons, 32 F3d 1504, 1509 (11th Cir. 1994) (uncharged
carjackings were sufficiently similar to the charged offense of murdering a
federal agent as to warrant their admission in evidence to prove identity).
Further, although appellant admitted in a statement he gave police following his
arrest that he drove Rounsoville to Warner Robins on the day of the crime to
meet with the victim about the victim’s car, he recanted this statement at trial,
testifying that he had been coerced into making it by the police and that it was
untrue. By presenting an alibi defense at trial, appellant made identity a pivotal
consideration for the jury to resolve. Id.
In light of the foregoing, we find the trial court did not abuse its discretion
in determining that the second prong of the admissibility test likewise was met.
As evidence of the Monroe County crimes was necessary to counter appellant’s
testimony at trial and the defenses on which he relied, the probative value of this
evidence was not substantially outweighed by the danger of unfair prejudice to
appellant. See United States v. Jernigan, 341 F3d 1273, 1280 (11th Cir. 2003)
(Rule 404 (b) is a rule of inclusion and other crimes evidence, like other relevant
evidence, should not be excluded lightly when central to the government’s case).
Bradshaw, supra at 657 (admissibility of other acts evidence calls for common
14
sense approach, which includes prosecutorial need). Finally, we note that
appellant pled guilty to the Monroe County crimes, thus the third and final
requirement, that there be sufficient proof that appellant committed these crimes,
has also been met. For the reasons stated above, we find no error in the trial
court’s admission of the other acts evidence at trial.
5. Appellant additionally argues the trial court improperly allowed a
police detective, Sergeant Art Curnutte, to testify as to the contents of a
surveillance video over appellant’s objection. Appellant complains that the trial
court improperly allowed Curnutte to identify the victim as being depicted on
the surveillance video despite having no personal knowledge of the victim’s
personal features or observable behaviors. He also contends the trial court erred
in permitting Curnutte to testify about the date-time stamp appearing on the
video, arguing that the sergeant’s second-hand viewing of the surveillance video
in this case did not meet the threshold requirements necessary for its admission
pursuant to OCGA § 24-9-923.4
4
As the Federal Rules of Evidence do not contain a provision like OCGA § 24-9-923
specifically pertaining to the authentication of photographs, motion pictures, video and audio
recordings when no witness is available, and as this statute in Georgia’s new evidence code is
substantially similar to the pre-existing statute, former OCGA § 24-4-48, which it replaced, we
therefore give OCGA § 24-9-923 the same meaning as former OCGA § 24-4-48. See Bradshaw, 296
at 654.
15
OCGA § 24-9-923 (c) governs the method for admitting video recordings
created by unmanned cameras such as the surveillance video admitted by the
trial court in this case.5 See Dawson v. State, 283 Ga. 315, 317 (658 SE2d 755)
(2008). Pursuant to this statute, videotapes created by unmanned cameras
“shall be admissible in evidence when the court determines, based on competent
evidence presented to the court,” that the video tends to reliably show the fact
or facts for which it is offered. OCGA § 24-9-923 (c). Although this provision
also requires that the videotape show the date and time the recording was made,
the fact “[t]hat the date-time stamp does not reflect the actual time when the
images were captured goes to the weight to be given the evidence, not its
admissibility.” Dawson, supra at 318-319. See Holloway v. State, 287 Ga.
App. 655, 658 (2) (653 SE2d 95) (2007). The record shows that Curnutte
5
This provision provides, in pertinent part:
(c) Subject to any other valid objection . . . video recordings and audio recordings
produced at a time when the device producing the items was not being operated by
an individual person or was not under the personal control or in the presence of an
individual operator shall be admissible in evidence when the court determines, based
on competent evidence presented to the court, that such items tend to show reliably
the fact or facts for which the items are offered, provided that, prior to the admission
of such evidence, the date and time of such . . . video recording shall be contained on
such evidence, and such date and time shall be shown to have been made
contemporaneously with the events depicted in such . . . video recording.
OCGA § 24-9-923 (c).
16
testified that he had been trained in video surveillance and retrieved and
captured video recordings as part of his work; that he downloaded videotape
from surveillance cameras at the scene of the crime on the day the victim’s body
was discovered; that he retrieved the video using a system for which he was
certified and also trained other officers to use; that at the time he downloaded
the video the equipment appeared to be functioning properly except that the
date-time stamp was inaccurate; that he was able to determine that the date-time
entry on the video was two days, 12 hours, and 45 minutes fast by comparing
it with the actual date and time; that he viewed the video on the day he
downloaded it; and that the video being offered as evidence was the one he
retrieved from the surveillance cameras at the scene of the crime. Under the
circumstances, we hold the trial court did not abuse its discretion in admitting
the videotape. See Dawson, supra; Dixon v. State, 300 Ga. App. 183, 185 (684
SE2d 679) (2009).
Appellant further complains that when the video was played for the jury,
the trial court improperly allowed Curnutte to offer opinion testimony
identifying the victim as appearing therein. When a witness identifies a person
in a video or picture, there must be some basis in knowledge for the witness’s
17
identification to be superior to that of the jury. See Dawson, supra at 320 (“‘It
is improper to allow a witness to testify as to the identity of a person in a video
or photograph when such opinion evidence tends only to establish a fact which
average jurors could decide thinking for themselves and drawing their own
conclusions. [Cits.]’”); Grimes v. State, 291 Ga. App. 585, 590 (662 SE2d 346)
(2008) (same). Pretermitting whether Curnutte’s knowledge of the victim’s
appearance on the day he was killed was superior to that of the average juror in
this case,6 we find that any error by the trial court in allowing Curnutte to offer
opinion evidence identifying the victim on the videotape was harmless.
Significantly, Curnutte never identified appellant as appearing in the videotape
and misidentification of the victim was not the basis of appellant’s defense. See
Rogers v. State, 294 Ga. App. 195, 198-199 (670 SE2d 106) (2008). Compare
Grimes, supra at 592 (2) (improper admission of opinion testimony identifying
defendant in photograph constituted harmful error where basis of the defense
was misidentification of the defendant). Moreover, Curnutte’s testimony
identifying the victim at the crime scene was cumulative in that it was supported
6
The trial court noted at the motion for new trial hearing that Curnutte had direct contact
with the victim’s body and car at the crime scene, as well as with the stolen Monte Carlo when it was
recovered in Putnam County.
18
by testimony from other witnesses, as well as by appellant’s own statement.
Considering these factors and the overwhelming evidence of appellant’s guilt,
we find that any error by the trial court in allowing Curnutte to identify the
victim on the videotape was harmless.
6. Appellant also complains that the trial court abused its discretion in its
handling of his co-defendant, Rounsoville, on the witness stand. At the time of
appellant’s trial, Rounsoville had already been tried and convicted of the
Monroe County shooting and car theft, and his conviction was on appeal.
Although he had entered a guilty plea in the instant case, Rounsoville’s truthful
testimony at appellant’s trial was not a specific condition of his plea. When
called as a witness at appellant’s trial, Rounsoville initially refused to answer
any questions that specifically implicated appellant in either crime. After
excusing the jury, the trial court admonished Rounsoville by threatening to hold
him in contempt and strike his testimony. However, when Rounsoville
subsequently failed to cooperate, instead of immediately holding him in
contempt, the trial court explained Rounsoville’s Fifth Amendment rights to him
and allowed him to meet with his attorney. Thereafter, Rounsoville returned to
the stand and answered the questions related to the Houston County crimes,
19
while invoking his Fifth Amendment rights with respect to the Monroe County
crimes.
Appellant argues that by not following through on its initial threat to hold
Rounsoville in contempt and strike his testimony, the trial court improperly
assisted the State in rehabilitating a hostile witness and thus failed to maintain
its impartiality. See United States v. Wright, 392 F3d 1269, 1274 (11th Cir.
2004) (trial court abuses its authority when it abandons its impartial role and
assumes that of an advocate). Although admitting that the trial court was
allowed to interrogate Rounsoville to ensure he understood his rights, appellant
contends that the court’s remarks became prejudicial when they kept a key
witness on the stand for the benefit of the State over the defense.
Looking at the record as a whole, we find no evidence that the complained
of remarks by the trial court showed bias against appellant or created “an air of
partiality which denied [appellant] the right to a fair and impartial trial.” U. S.
v. Verbitskaya, 406 F3d 1324, 1337 (11th Cir. 2005) (finding no reversible error
where a judge’s remarks were not so biased and unfair so as to prejudice the
defendant). See also Brough v. Imperial Sterling Ltd., 297 F3d 1172, 1181 (11th
Cir. 2002) (In determining whether a party’s rights have been substantially
20
impacted, “a court must consider the record as a whole and not merely isolated
remarks.”). Here, the trial court was simply instructing a witness on his duty to
answer questions. See Coggins v. Fitts, 268 Ga. 112, 113 (485 SE2d 495)
(1997) (holding that the trial court did not express an improper bias by asking
questions about a legal question that was tangentially related to the parties’
dispute). Appellant has failed to show any error on the part of the trial court in
instructing the witness in this case or that he was harmed thereby, thus the
challenged remarks do not require reversal. See Hendricks v. State, 283 Ga.
470, 472 (3) (660 SE2d 365) (2008).
7. Finally, appellant asserts his trial counsel was constitutionally
ineffective in that counsel inadequately challenged the search warrant for
appellant’s house, untimely filed a motion for a private investigator and an
incomplete list of alibi witnesses, and failed to thoroughly prepare appellant’s
alibi witnesses for trial. To succeed on a claim of ineffective assistance of
counsel, appellant must show both that counsel’s performance was deficient, and
the deficient performance was prejudicial to his defense. See Strickland v.
Washington, 466 U.S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984).
Moreover, to establish deficient performance, appellant must overcome the
21
strong presumption that his counsel’s conduct fell within the broad range of
reasonable professional conduct and “show that his counsel performed in an
objectively unreasonable way, considering all circumstances and in the light of
prevailing professional norms.” Prince v. State, 295 Ga. 788, 791 (764 SE2d
362) (2014). Further, “[f]ailure to satisfy either prong of the Strickland test is
sufficient to defeat a claim of ineffective assistance, and it is not incumbent
upon this Court to examine the other prong.” Hargrove v. State, 291 Ga. 879,
881 (734 SE2d 34) (2012).
Appellant argues his trial counsel was ineffective for failing to argue that
the search warrant issued for appellant’s house was insufficient as lacking in
specificity because it was essentially identical to the warrant for Rounsoville’s
house except for the name, address, and accompanying affidavits. The record
reflects that appellant’s trial counsel moved to suppress evidence obtained
pursuant to appellant’s search warrant and, at the hearing on this motion,
thoroughly cross-examined the Putnam County Sheriff regarding the affidavit
in support of the warrant and the information the sheriff had received about
appellant and the stolen car. The sheriff, who testified at length about his
investigations regarding the homicide and the suspects’ vehicles, stated that law
22
enforcement officials were looking for the same items at both houses because
it was known the defendants had been together and had recently possessed the
victim’s vehicle. The warrants contained a list of specific items, including
vehicles and apparel, which the accompanying affidavits identified as associated
with the homicide in this case and the crime which occurred in Monroe County.
In describing the items to be seized pursuant to a search warrant, the degree of
specificity required “‘is flexible and will vary with the circumstances
involved.’” Reaves v. State, 284 Ga. 181, 184 (664 SE2d 211) (2008) (citation
omitted). Under the circumstances presented, we find the search warrant for
appellant’s house was sufficiently definite and that trial counsel’s failure to
challenge the warrant on this basis was not unreasonable.
With respect to appellant’s remaining claims, the record shows that
counsel did provide adequate notice of alibi witnesses, that he met with these
witnesses and that he was able to present such evidence at trial. Based on the
foregoing, appellant has failed to show his trial counsel performed deficiently
and his ineffective assistance of counsel claims lack merit.
Judgment affirmed in part and vacated in part and case remanded for
resentencing. All the Justices concur.
23