Letron Bell v. State ( 2021 )

SECOND DIVISION
MILLER, P. J.,
MERCIER, J., and SENIOR APPELLATE JUDGE PHIPPS
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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
February 25, 2021
In the Court of Appeals of Georgia
A20A1761. BELL v. THE STATE.
MILLER, Presiding Judge.
A Rockdale County jury found Letron Bell guilty of two counts of voluntary
manslaughter, one count of aggravated assault, one count of aggravated assault on a
public safety officer, and two counts of possession of a firearm during the
commission of a crime, and the trial court sentenced Bell to 50 years’ imprisonment.
Bell appeals from the denial of his motion for new trial, arguing that (1) his trial
counsel rendered ineffective assistance of counsel by failing to impeach a witness;
(2) the indictment failed to properly allege that he knowingly assaulted a public safety
officer; and (3) the trial court committed plain error in instructing the jury on
voluntary manslaughter. For the reasons that follow, we affirm.
Viewed in the light most favorable to the verdicts,1 the record shows that
Letron Bell and Lisa Bell were married and that Lisa had four children, two of whom
she shared with Bell. On the morning of January 21, 2018, Lisa sent her mother a text
message telling her that Bell had choked her on the previous night and that she was
going to stay with a friend. Her mother responded to the text message and told Lisa
that she had called the police and that they were on their way.2
Joey McClendon from the Rockdale County Sheriff’s Office arrived at the
Bells’ home and parked her vehicle in front of the house. Deputy Robert Burt from
the Rockdale County Sheriff’s Office also arrived on scene at the house. After Deputy
McClendon rang the doorbell of the residence, Lisa opened the door and told Deputy
McClendon that she wanted to leave with her children and that Bell had choked her.
Bell, who had been sitting on a nearby staircase inside the home, told the officer,
“that is bullshit,” and closed the door while holding a gun in his hand.
Lisa later exited the house and ran past Deputy Burt with Bell “charg[ing]”
behind her. Bell then fired a gunshot in the deputies’ direction, and he continued to
1
Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2
The 911 calls were admitted into evidence and played for the jury.
2
exchange gunfire with Deputy Burt as he fled the area.3 A nearby neighbor heard
“popping noises,” and after stepping outside of her home, she saw Bell chasing Lisa
down a hill. After Lisa reached a shed, the neighbor heard a “pop,” and she saw Lisa
fall to the ground. Another neighbor in the area also heard the sound of gunshots and
saw Bell chasing Lisa, and he flagged down another officer who was in the area. Bell
was arrested on the scene, and Lisa later died due to her injuries from a gunshot
wound.
Bell was indicted on one count of malice murder (OCGA § 16-5-1), one count
of felony murder (OCGA § 16-5-1), one count of aggravated assault (OCGA § 16-5-
21), two counts of aggravated assault on a public safety officer (OCGA § 16-5-21 (c)
(1)), and three counts of possession of a firearm during the commission of a crime
(OCGA § 16-11-106). The jury convicted Bell of two counts of voluntary
manslaughter as the lesser included offenses of malice murder and felony murder, one
count of aggravated assault, one count of aggravated assault on a public safety
officer, and two counts of possession of a firearm during the commission of a crime,4
3
The dash-cam video from McClendon’s vehicle captured the incident and was
admitted into evidence and played for the jury.
4
The jury acquitted Bell of one count of aggravated assault on a public safety
officer and the related count of possession of a firearm during the commission of a
3
and the trial court sentenced Bell to 50 years’ imprisonment.5 Bell filed a motion for
new trial, which the trial court denied after a hearing. This appeal followed.
1. First, Bell argues that his trial counsel rendered ineffective assistance of
counsel by failing to impeach Deputy Burt with a prior statement in which he said
that Bell did not aim the firearm at him during the shooting. We disagree and
conclude that Bell has failed to show that his trial counsel rendered ineffective
assistance in this regard.
To prevail on a claim of ineffective assistance of counsel, a defendant
must show that counsel’s performance was deficient and that the
deficient performance so prejudiced the defendant that there is a
reasonable likelihood that, but for counsel’s errors, the outcome of the
trial would have been different. If an appellant fails to meet his or her
burden of proving either prong of the Strickland6 test, the reviewing
court does not have to examine the other prong. In reviewing the trial
court’s decision, we accept the trial court’s factual findings and
credibility determinations unless clearly erroneous, but we
independently apply the legal principles to the facts. Furthermore, there
crime.
5
The trial court merged Bell’s voluntary manslaughter convictions and also
merged his aggravated assault conviction for sentencing purposes.
6
Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LEd2d 674)
(1984).
4
is a strong presumption that the performance of counsel was within the
wide range of reasonable professional lawyering, and we cannot reach
a contrary conclusion unless defendant successfully rebuts the
presumption by clear and convincing evidence. Judicial scrutiny of
counsel’s performance must be highly deferential.
(Citation omitted). Gay v. State, 351 Ga. App. 811, 817 (2) (833 SE2d 305) (2019).
Here, Count Four of the indictment charged Bell with aggravated assault on a
public safety officer for discharging his firearm “in the direction of and in the
presence of . . . Robert Burt[.]” During trial, Deputy Burt testified that after Bell
exited the house to run after Lisa, Bell fired a gunshot in his direction and that he and
Bell began to exchange gunfire. In a video recording which captured the moments
immediately following the shooting, Deputy Burt said that he did not think Bell was
aiming his gun at him. At the hearing for Bell’s motion for new trial, Bell’s trial
counsel testified that she was aware of Deputy Burt’s statements on the recording and
that she wanted to impeach Deputy Burt with his recorded statements, but she
misplaced the video.
We conclude that, assuming that trial counsel was deficient for failing to
impeach Deputy Burt with his statements on the video recording, Bell cannot
demonstrate prejudice from trial counsel’s alleged deficiency. Deputy McClendon
5
testified that she observed Bell and Deputy Burt exchange gunfire as Bell ran through
the yard, which at the very least shows that Bell discharged his firearm in Deputy
Burt’s presence as alleged in the indictment. Additionally, the dash-cam video from
Deputy McClendon’s vehicle that captured the incident was admitted into evidence
and played for the jury. In light of this evidence, Bell cannot show a reasonable
likelihood that, but for trial counsel’s error, the outcome at trial would have been
different. See Taylor v. State, 282 Ga. 693, 696-697 (2) (c) (653 SE2d 477) (2007)
(defendant could not show prejudice from trial counsel’s failure to impeach a witness
with a prior inconsistent statement where there was no reasonable probability that the
difference between the statements would have affected the outcome at trial).
Accordingly, Bell’s ineffective assistance of counsel claim fails.
2. Next, Bell argues that the indictment was insufficient because it did not
allege the necessary elements for the aggravated assault on a public safety officer
offense. We disagree and conclude that the indictment was not insufficient.
The sufficiency of an indictment is a question of law that we review de novo.
Strickland v. State, 349 Ga. App. 673, 675 (2) (824 SE2d 555) (2019).
A general demurrer challenges the validity of an indictment by asserting
that the substance of the indictment is legally insufficient to charge any
6
crime. In other words, a general demurrer is essentially a claim that the
indictment is fatally defective and, therefore, void, because it fails to
allege facts that constitute the charged crime or any other crime,
including a lesser included offense of the charged crime. Thus, the true
test of the sufficiency of an indictment to withstand a general demurrer
is found in the answer to the question: Can the defendant admit the
charge as made and still be innocent of any crime? If he can, the
indictment is fatally defective. On the other hand, if the defendant
cannot admit all of the facts in each count of the indictment and still be
innocent of committing any crime, the indictment is legally valid and
will survive a general demurrer.
(Citations, punctuation, and emphasis omitted.) State v. Wilson, 318 Ga. App. 88, 91-
92 (1) (732 SE2d 330) (2012).
Under OCGA § 16-5-21, “a person commits the offense of aggravated assault
when he or she assaults with a deadly weapon or with any object, device, or
instrument which, when used offensively against a person, is likely to or actually does
result in serious bodily injury.” (Citation omitted.) Jackson v. State, 347 Ga. App.
199, 202 (1) (b) (818 SE2d 268) (2018). Here, the State alleged that Bell violated
OCGA § 16-5-21 (c) (1), which provides “that an aggravated assault on a public
safety officer occurs when a person knowingly commits the offense of aggravated
assault upon a public safety officer while he or she is engaged in, or on account of the
7
performance, his or her official duties.” (Citation and punctuation omitted.) Id.
Therefore, aggravated assault is a lesser included offense of aggravated assault on a
public safety officer. Wilson, supra, 318 Ga. App. at 95 (1) (c) (i). Additionally,
“[t]his statute has been construed to require that, at the time of the assault, the
defendant must have knowledge that he was assaulting a police officer engaged in the
performance of his official duties.” (Citation and punctuation omitted.) Id. at 89 n.4.
Count 4 of the indictment alleged that Bell
did unlawfully then and there knowingly assault the person of Robert
Burt, a public safety officer, with a deadly weapon, a handgun, by
committing an act which placed said Robert Burt in reasonable
apprehension of immediately receiving a violent injury, to-wit: by
discharging said firearm in the direction of and in the presence of said
Robert Burt, while said officer was engaged in the performance of his
official duties[.]
(Emphasis supplied.)
Pretermitting whether the indictment sufficiently charged Bell with assaulting
someone he knew was a public safety officer under OCGA § 16-5-21 (c) (1), Bell
cannot admit to the allegations contained in the indictment and be innocent of
committing the lesser included offense of aggravated assault. Therefore, Count 4 of
the indictment was sufficient to withstand a general demurrer. See Wilson, supra, 318
8
Ga. App. at 95 (1) (c) (i) (holding that the indictment charging the defendant with
aggravated assault on a peace officer was sufficient to withstand a general demurrer
where the defendant could not admit to the allegations in the indictment and be
innocent of committing the lesser included offense of aggravated assault).7
Accordingly, Bell’s claim that indictment was insufficient fails.
3. Lastly, Bell argues that the trial court committed plain error in instructing
the jury that it was authorized to convict him of malice murder or felony murder. We
disagree and conclude that the trial court did not err in its instructions to the jury.
Bell concedes that his trial counsel did not object to the alleged improper
instructions during trial.
Because trial counsel did not object to the jury instructions at trial,
appellate review of the contentions is precluded unless the contested
portion of the jury charge constitutes plain error which affects
substantial rights of the parties. We review for plain error an alleged
jury-instruction error if the error is properly enumerated and argued on
appeal.
7
Bell’s reliance on Chandler v. State, 204 Ga. App. 816 (421 SE2d 288)
(1992), is misplaced because the issue there concerned the trial court’s failure to
instruct the jury that the State had to prove that the defendant knew that the victim
was a police officer. Id. at 820 (3). Here, however, the trial court correctly charged
the jury that it had to find that Bell knew that the victim was a public safety officer.
9
(Citation omitted.) Gay, supra, 351 Ga. App. at 819 (3). To establish plain error,
first, there must be an error or defect — some sort of deviation from a
legal rule — that has not been intentionally relinquished or abandoned,
i.e., affirmatively waived, by the appellant. Second, the legal error must
be clear or obvious, rather than subject to reasonable dispute. Third, the
error must have affected the appellant’s substantial rights, which in the
ordinary case means he must demonstrate that it affected the outcome of
the trial court proceedings. Fourth and finally, if the above three prongs
are satisfied, the appellate court has the discretion to remedy the error
— discretion which ought to be exercised only if the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings. Reversal of a conviction is authorized if all four prongs are
met. On plain error review, the presence of actual legal error is not
enough, as the jury instruction in question must have an obvious defect
rather than a merely arguable defect.
(Citations and punctuation omitted.) Id. at 820 (3).
Here, the trial court charged the jury with the following instructions: “After
consideration of all the evidence before you, you may be authorized to return a
verdict of guilty of malice murder or felony murder. But before you do that you must
determine whether mitigating circumstances, if any, would cause the offense to be
reduced to voluntary manslaughter.” Bell argues that the trial court erred in charging
the jury in this manner because the instructions ignored or diminished the
10
presumption of innocence, it relieved the State of its burden of proving his guilt
beyond a reasonable doubt, and it amounted to a comment on Bell’s guilt.
We conclude that Bell has failed to demonstrate that the trial court erred in
charging the jury. Contrary to Bell’s claims, the instructions did not diminish the
presumption of innocence or relieve the State of its burden of proof, and did not
operate as a comment on Bell’s innocence. Instead, the trial court merely instructed
the jury that before it could return a guilty verdict for malice murder or felony
murder, it first had to consider whether mitigating circumstances warranted a guilty
verdict for the lesser offense of voluntary manslaughter. The trial court’s instruction
closely mirrors the pattern jury instruction, which states: “After consideration of all
the evidence, before you would be authorized to return a verdict of guilty of (malice
murder) (felony murder), you must first determine whether mitigating circumstances,
if any, would cause the offense to be reduced to voluntary manslaughter.” Suggested
Pattern Jury Instructions § 2.10.40. The jury was also instructed that Bell was to be
presumed innocent until proven guilty and that the State bore the burden of proof for
each offense. Additionally, the trial court instructed the jury that “no ruling or
comment that the court . . . made during the progress of th[e] [trial] [was] intended
to express any opinion upon the facts of this case, upon the credibility of the
11
witnesses, upon the evidence or upon the guilt or innocence of the defendant.”
Viewed in this context, the trial court’s statement that the jury “may be authorized”
to find Bell guilty of malice murder, felony murder, or voluntary manslaughter was
not a command or a statement that there was sufficient evidence to return a guilty
verdict but was merely a statement reflecting the jury’s discretion in returning its
verdicts. No reasonable jury would have understood the court’s instructions, taken as
a whole, as intimating that the jury should reach a particular verdict or that the
prosecution was relieved of its burden of proof, and Bell has therefore failed to show
error in the trial court’s instructions to the jury.8 See Picklesimer v. State, 353 Ga.
App. 718, 726 (5) (839 SE2d 214) (2020) (“When a jury charge is a correct statement
of law, a defendant cannot satisfy the first two prongs of the plain error test — that
a clear or obvious legal error occurred. Thus, we find no error, much less any plain
error.”) (citation and punctuation omitted). Therefore, Bell’s claim that the trial court
committed plain error in instructing the jury necessarily fails.
8
Bell’s reliance on Sales v. State, 296 Ga. 538 (769 SE2d 374) (2015), is
misguided. In that case, the trial judge expressly remarked to the jury that the offenses
had occurred in a particular county, which therefore relieved the State of its burden
of proving venue. Id. at 540-541 (2).
12
Accordingly, for the reasons stated above, we affirm the trial court’s order
denying Bell’s motion for new trial.
Judgment affirmed. Mercier, J., and Senior Appellate Judge Herbert E. Phipps,
concur.
13