Redding v. State , 297 Ga. 845 ( 2015 )

In the Supreme Court of Georgia
Decided: October 19, 2015
S15A0985. REDDING v. THE STATE.
HUNSTEIN, Justice.
Appellant George Redding was convicted of murder and related offenses
in connection with the deaths of victims Ronnie Pierce and Victor Hill, who
were shot and killed on June 19, 2007 and July 1, 2007, respectively. Redding
appeals, asserting error in the admission of certain evidence and ineffective
assistance of counsel. Finding no error, we affirm.1
1
Redding was indicted by a Fulton County grand jury in February 2008 on 13
counts. As to each homicide victim, Redding was charged with one count of malice
murder, two counts of felony murder, one count of aggravated assault, and one count
each of firearm possession during commission of a felony and firearm possession by
a convicted felon. Redding was also charged with the aggravated assault of a third
victim, LaShanta Teague, arising from the July 1, 2007 incident involving victim Hill.
At the conclusion of a jury trial held January 25-31, 2011, Redding was convicted on
all counts. The trial court thereafter sentenced Redding to two consecutive terms of
life imprisonment for each murder, plus a total of forty consecutive years for the
aggravated assault of Teague and the firearm possession counts; the remaining counts
merged or were vacated by operation of law. Redding filed a timely motion for new
trial on February 18, 2011, which was amended, through new counsel on March 28,
2013 and again on November 1, 2013. After a hearing held November 8, 2013, the
trial court denied the motion for new trial on January 3, 2014. Redding filed his
notice of appeal on January 27, 2014. The appeal was docketed to the April 2015
Viewed in the light most favorable to the jury’s verdicts, the evidence
adduced at trial established as follows. In the early morning hours of June 19,
2007, Ronnie Pierce was shot dead in the Mechanicsville area of Atlanta.
Witness Lanera Cleveland testified that on the evening of the crime, she was
with Pierce at an intersection in Mechanicsville known for attracting drug users,
when they were approached by Redding, who accused Pierce of stealing a pistol.
The two exchanged words, and Redding produced a gun and began chasing
Pierce, shooting. Pierce ran onto the front porch of a nearby house and knocked
on the door calling for help, but Redding caught up, shot Pierce, and then ran
away. Two other witnesses identified Redding as Pierce’s shooter in pre-trial
interviews with police, but both recanted at trial, whereupon the State was
permitted to show the jury the video-recorded interviews of both witnesses
implicating Redding and corroborating certain details of Cleveland’s account.
Pierce died of his injuries, which the medical examiner opined were consistent
with being shot from behind while running and being shot in the head at close
range.
term of this Court and was thereafter submitted for decision on the briefs.
2
With regard to the Victor Hill shooting, witness Lashuntae Teague
testified that, on the evening of July 1, 2007, she purchased marijuana from Hill
in an apartment complex parking lot off Boulevard Place in Northeast Atlanta.
Soon after Hill walked away from her car, gunfire erupted in the parking lot
from multiple shooters. Hill was fatally shot, and Teague was injured by stray
bullets. Witness Princeton Henry, a friend of Hill, testified that he was in the
parking lot with Hill on that evening and saw Redding shoot Hill with an assault
rifle.
The State also adduced similar transaction evidence from witness
Christopher Thornton, who testified that, in September 2007, he witnessed
Redding shoot victim Jura Tye in the street from close range with an assault
rifle. Evidence gathered in the investigation of that crime confirmed the use of
an assault rifle – as well as a handgun – and was consistent with a conclusion
that the assault rifle had been fired at close range. Thornton also testified that,
after the shooting, Redding told him he was just back from California, where he
had fled because he was “wanted for a murder on the Boulevard.” In addition,
Thornton testified that he had been threatened and attacked at the Fulton County
jail, where he was being housed while waiting to testify at the Redding trial, and
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that he believed those threats and attacks were linked to his expected testimony.
A ballistics examiner testified that grey-colored bullet casings found at the
scenes of the Hill and Tye shootings were from 7.62 x .39 caliber bullets that
were manufactured in Russia. Bullet casings of the same type were found in a
search of the Clayton County home where Redding was arrested.
1. Though Redding has not enumerated the general grounds, we have
concluded that the evidence as summarized above was sufficient to enable a
rational trier of fact to conclude beyond a reasonable doubt that Redding was
guilty of all the crimes of which he was convicted. Jackson v. Virginia, 443
U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2. Redding contends that the trial court erred in admitting evidence
regarding the Jura Tye shooting on the ground that it lacked sufficient similarity
or connection to the Pierce and Hill shootings to be admissible as a similar
transaction. Evidence of independent acts is admissible only if the State
establishes
that it seeks to introduce the evidence for an appropriate purpose;
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that there is sufficient evidence to establish that the accused
committed the independent act; and that there is a sufficient
connection or similarity between the independent act and the crime
charged so that proof of the former tends to prove the latter.
(Citations omitted.) Wilson v. State, 293 Ga. 508, 510 (3) (748 SE2d 385)
(2013). “In assessing the admissibility of similar transaction evidence, the
proper focus is on the similarities, not the differences, between the separate act
and the crimes in question.” Johnson v. State, 289 Ga. 22, 24 (1) (709 SE2d
217) (2011). Accord Abdullah v. State, 284 Ga. 399 (3) (667 SE2d 584) (2008).
A trial court’s decision to admit similar transaction evidence will not be
disturbed absent an abuse of discretion. Moore v. State, 288 Ga. 187 (3) (702
SE2d 176) (2010).
Here, the trial court conducted a pre-trial hearing regarding the
admissibility of the proposed evidence and, at trial, heard testimony from
Thornton outside the jury’s presence prior to admitting the evidence in question.
The court found that the State sought to offer the evidence regarding the Jura
Tye shooting for the appropriate purpose of establishing Redding’s modus
operandi and course of conduct.2 The court further found that there was
Redding was tried in 2011, prior to the January 1, 2013 effective date of
2
Georgia’s new Evidence Code. See Ga. L. 2011, p. 99, § 101 (new Evidence Code
5
sufficient evidence – namely, the testimony of Christopher Thornton –
identifying Redding as one of the participants in the Tye shooting. Redding
does not challenge these determinations, and we find no abuse of discretion
therein.
Redding contends, however, that the trial court erred in finding sufficient
similarities between the Tye shooting and the Pierce and Hill shootings to justify
the admission of evidence regarding the Tye shooting. The Tye shooting was
similar to the Pierce shooting in that, as the evidence reflects, both involved the
assailant pursuing his victim, gunning him down, and then sealing his fate with
close-range shots to the head. The Tye shooting was similar to the Hill shooting
in that both involved the use of high-powered assault rifles loaded with the same
type of foreign-made 7.62 x .39 caliber bullets. All three shootings occurred in
high-crime areas of Atlanta, within approximately three months of each other.
Given our obligation when assessing similar transactions to focus on the
effective for proceedings conducted after January 1, 2013). Under the law then in
effect, “course of conduct” was considered a proper purpose for admitting similar
transaction evidence. See Matthews v. State, 294 Ga. 50, 52, n.2 (751 SE2d 78)
(2013). Under the new Evidence Code, similar transaction evidence may be
admissible for purposes including “proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” OCGA § 24-4-404 (b).
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similarities rather than the differences between incidents, see Johnson, 289 Ga.
at 24; Abdullah, 284 Ga. at 401, we conclude that the trial court properly
exercised its discretion in admitting evidence of the Tye shooting. See, e.g.,
Moore, 288 Ga. at 190-191 (no error in admitting evidence of prior shooting at
defendant’s murder trial, where both incidents involved unprovoked gun
violence); Abdullah, 284 Ga. at 401 (same, where both shootings occurred in
close physical and temporal proximity and involved unsuspecting victims shot
without provocation); Salahuddin v. State, 277 Ga. 561 (5) (592 SE2d 410)
(2004) (same, where both incidents involved aggressive conduct that rapidly
escalated and the defendant’s use of a handgun to resolve differences with
others). This enumeration is thus without merit.
3. Redding next contends that the trial court erred in permitting, over
objection, the State to play for the jury a portion of a videotaped interview of
witness Stanley Collins, in which he referred to Redding as the leader of a local
gang. Prior to trial, the defense moved to prohibit the admission of any
evidence regarding Redding’s alleged gang affiliation, and the trial court ruled
that such evidence would be barred except in the event of a witness’ recantation.
At trial, witness Collins, who had given a pre-trial statement to police
7
identifying Redding as the perpetrator of the Pierce murder, first denied making
any such statement, then claimed that his statement had been coached by
investigators. To impeach Collins, the State was permitted to show Collins’
video-recorded interview, in which, when asked how he knew Redding, Collins
replied that Redding was “a neighborhood guy who . . . . run[s] the gang called
30 Deep.” Redding now asserts, as he argued at trial, that allowing this portion
of the interview to be shown to the jury was error, as it served only to assail his
character.
We disagree. The trial court properly admitted Collins’ pre-trial
statement, as a whole, to impeach his trial testimony. See Gibbons v. State, 248
Ga. 858 (286 SE2d 717) (1982) (witness’ out-of-court statement implicating
defendant admissible to impeach that witness’ trial testimony in which he denied
making such statement and then claimed statement was extracted through
bribery). While ordering the redaction of certain portions of the statement that
described the gang in detail, the court allowed in the above-quoted portion
identifying Redding as a gang leader, reasoning that the fact that Collins gave
“very specific information” in response to the interviewer’s open-ended
question tended to show that Collins was not being coached through the
8
interview. The trial court did not abuse its discretion in concluding that this
portion of the statement was relevant for impeachment purposes, and this is true
even though the evidence of Redding’s alleged gang affiliation may have
incidentally put his character in issue. See Wolfe v. State, 273 Ga. 670, 674 (4)
(a) (544 SE2d 148) (2001) (evidence of defendant’s gang affiliation admissible,
despite its negative reflection on defendant’s character, where it was “relevant
and material to an issue in the case”). This enumeration, thus, is without merit.
4. Redding next contends that the trial court erred in refusing to strike a
portion of testimony given by Thornton on cross-examination. In an attempt to
impeach Thornton, defense counsel inquired about Thornton’s own criminal
history and about a plea deal Thornton had made on armed robbery charges, in
which he had agreed to testify in the Redding case regarding the Jura Tye
shooting. Defense counsel then asked Thornton why he did not come forward
with information about the Tye shooting until some two years after the fact:
Q: So why didn’t you get on the phone and be truthful with
somebody in the two years after it happened? Why didn’t you do
that?
A: I was scared, sir.
Q. All right. And it couldn’t help you, right? So when it could help
you, you’re not scared; is that what you’re saying?
A: No, sir.
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Q: You’re scared? You robbed drug dealers and kidnapped people
and now you’re afraid; is that what you’re telling this jury?
A: Yeah, I’m afraid of the connections that your client has –
Q: Okay. Right.
A: – because he’s a leader of –
The Court: Mr. Francis, let him finish.
A: He’s the leader of a 30 Deep gang –
Defense counsel moved to strike this testimony, and the trial court declined to
do so, finding that counsel’s open-ended question had opened the door to this
testimony. The trial court instructed Thornton to finish his response, and he did
so: “[b]ecause your client is a leader of the 30 Deep gang and they pretty much
control the whole jail as you can see.” Defense counsel then moved for a
mistrial, which the trial court denied. We find no abuse of discretion in this
regard, as Thornton’s remarks were a direct and pertinent response to defense
counsel’s aggressive questioning regarding Thornton’s motives for testifying.
See Mosely v. State, 269 Ga. 17, 20 (4) (495 SE2d 9) (1998) (defense counsel
“will not be heard to object” to testimony that he himself elicited). Accord
Simmons v. State, 271 Ga. 563 (4) (a), (b) (522 SE2d 451) (1999).
5. In his final enumeration, Redding contends that his counsel rendered
ineffective assistance in several respects. To establish ineffective assistance of
counsel, a defendant must show that his counsel’s performance was
10
professionally deficient and that but for such deficient performance there is a
reasonable probability that the result of the trial would have been different.
Strickland v. Washington, 466 U.S. 668, 695 (104 SCt 2052, 80 LE2d 674)
(1984); Wesley v. State, 286 Ga. 355 (3) (689 SE2d 280) (2010). To prove
deficient performance, one must show that his attorney “performed at trial in an
objectively unreasonable way considering all the circumstances and in the light
of prevailing professional norms.” Romer v. State, 293 Ga. 339, 344 (3) (745
SE2d 637) (2013). Courts reviewing ineffectiveness claims must apply a strong
presumption that counsel’s conduct fell within the wide range of reasonable
professional performance. Id. Thus, decisions regarding trial tactics and
strategy may form the basis for an ineffectiveness claim only if they were so
patently unreasonable that no competent attorney would have followed such a
course. Id. If the defendant fails to satisfy either the “deficient performance”
or the “prejudice” prong of the Strickland test, this Court is not required to
examine the other. See Green v. State, 291 Ga. 579 (2) (731 SE2d 359) (2012).
(a) Redding first claims that counsel performed unreasonably by failing
to object to evidence regarding a jailhouse assault on witness Thornton on the
eve of his testimony. Thornton, who appeared in court with his face badly
11
bruised, testified that he had been attacked on the previous evening at the Fulton
County jail by two other inmates and that, during the attack, the inmates made
remarks that made Thornton feel threatened by Redding. Thornton also testified
that earlier during the week of trial, while being transported from the courthouse
to the jail, he had crossed paths with Redding, who tried to ask him about “this
situation.” Two days after that, Thornton was approached while in the holding
cell at the courthouse by an unidentified man, whose remarks, Thornton
testified, made him feel threatened by Redding.
It is well established that
an attempt by a third person to influence a witness not to testify or
to testify falsely is relevant and may be introduced into evidence in
a criminal prosecution on the issue of the defendant’s guilt where
it is established that the attempt was made with the authorization of
the accused.
(Punctuation and citations omitted.) Kell v. State, 280 Ga. 669, 671 (2) (a) (631
SE2d 679) (2006). Though Redding asserts that there was no evidence that he
orchestrated or even authorized the jailhouse attack, this claim is belied by
Thornton’s testimony that his assailants made statements which made him feel
threatened by Redding, as well as by Thornton’s testimony about the remarks
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of the unidentified man who approached him in the courthouse holding cell.3
There was thus ample evidence to support a “reasonable and plain inference”
that Redding was responsible for these acts of intimidation, and evidence
regarding such acts was, therefore, properly admitted. See Lindsey v. State,
295 Ga. 343, 348 (3) (760 SE2d 170) (2014) (no error in permitting witness to
testify regarding threatening phone calls despite fact that there was no direct
evidence linking defendant with calls). Because this evidence was admissible,
counsel’s failure to object thereto does not constitute deficient performance.
See Wesley, 286 Ga. at 356 (failure to make meritless objection cannot
constitute deficient performance).
(b) Redding next contends that counsel performed deficiently by eliciting,
in his cross-examination of Thornton, Thornton’s testimony that Redding was
“a leader of the 30 Deep gang” and that the gang “pretty much control[s] the
whole jail.” At the new trial hearing, Redding’s lead trial counsel testified in
3
Contrary to Redding’s contention, Thornton’s testimony that these remarks
made him feel threatened by Redding does not constitute mere speculation on his part
that Redding was behind these acts of intimidation; the vagueness in Thornton’s
testimony in this respect was the result of hearsay objections by Redding’s counsel
as to Thornton’s testifying to the content of statements made by his attackers or the
unidentified man.
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this regard that, in questioning Thornton, he was attempting to cast doubt on
Thornton’s testimony regarding the Tye shooting by suggesting it was simply
a fabrication designed to secure a plea deal on Thornton’s own criminal charges.
As part of this strategy, counsel probed into why Thornton had not come
forward at the time of the Tye shooting, to which Thornton replied he was
scared; which led to the colloquy, quoted in Division 4, supra, that ended with
the statement regarding Redding’s gang affiliation. In his testimony at the new
trial hearing, trial counsel stated that he had been “trying to walk the line” of
impeaching Thornton in this way, without evoking a response that referenced
Redding’s gang involvement. He further acknowledged that “clearly looking
back at it, it didn’t work.” However, as we have noted, in considering
ineffectiveness claims, we do not assess counsel’s performance through the lens
of hindsight:
[i]t is all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it is all too easy
for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable. A fair assessment of attorney
performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.
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Arnold v. State, 292 Ga. 268, 270 (2) (a) (737 SE2d 98) (2013) (quoting
Strickland, 466 U.S. at 689-690). Trial counsel was clearly attempting to
navigate a narrow course, of effectively attacking Thornton’s credibility without
allowing the exchange to veer into the subject of Redding’s gang involvement.
In addition, at this point in the trial, the jury had already heard witness Collins’
recorded statement referencing Redding’s ties to the 30 Deep gang, so the stakes
in opening the door to further gang-related testimony were lower than if no prior
reference to gang affiliation had been made. Overall, therefore, counsel’s
strategy of attacking Thornton’s credibility, even if not flawlessly executed, was
still not “so patently unreasonable that no competent attorney would have
followed such a course.” Romer, 293 Ga. at 344.
(c) Redding also asserts that counsel rendered ineffective assistance in
failing to challenge what he claims was a mis-characterization by the State of the
7.62 x .39 caliber bullet casings found at the scenes of the Hill and Tye
shootings and at the home where Redding was apprehended. In his direct
examination of the State’s ballistics expert, the prosecutor asked the expert
whether bullets made with these grey-colored steel casings were rare, and the
expert responded, “[y]es, if it’s – it would be foreign made usually.” Shortly
15
thereafter, after showing the expert a grey steel-jacketed 7.62 x .39 caliber bullet
recovered from the Hill crime scene, he asked whether the bullet “is another one
of the rare types you just mentioned.” The expert replied, “[y]es, it wouldn’t be
domestic.” In his closing, the prosecutor highlighted the significance of finding
the same “rare stainless steel casings” at different crime scenes and the site of
Redding’s arrest. Redding claims that trial counsel performed deficiently by
failing to cross-examine the expert to clarify that these casings were not “rare”
in the sense of being uncommon but rather only in the sense of being distinctly
foreign-made, and that this enabled the State to argue that these casings were
essentially a signature of Redding.
Pretermitting whether trial counsel’s failure to cross-examine the State’s
ballistics expert on this issue constituted deficient performance,4 we find no
prejudice under the Strickland standard, which requires a determination that
counsel’s alleged errors “undermine [our] confidence in the outcome” of the
trial. Strickland, 466 U.S. at 694. Even if the alleged mis-characterization of
the bullet casings bolstered the inference that the same perpetrator was involved
4
When questioned at the new trial hearing about his failure to cross-examine
the ballistics expert, trial counsel could offer no explanation as to why he had not
done so and conceded in hindsight that he should have.
16
in both the Hill and Tye shootings and the inference that Redding was that
individual, the fact remains that the same type of bullet casing was found at both
scenes and at the site of Redding’s arrest. Given this evidence, the fact that
Redding was identified by eyewitnesses at each scene as the assailant, and the
evidence of witness intimidation, were we to find deficient performance by
counsel in this regard, it would not undermine our confidence in the outcome of
Redding’s trial. Accordingly, this claim must fail.
Judgment affirmed. All the Justices concur.
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