Johnson v. State

FINAL COPY




                    S18A1562. JOHNSON v. THE STATE.

      BENHAM, Justice.

      Appellant Akeem Johnson appeals his convictions stemming from the

shooting death of Jamon Middleton and the aggravated assault of Emory

Graham.1 On appeal, appellant alleges his trial counsel rendered

constitutionally ineffective assistance. Finding no reversible error, we affirm.




      1
          The crimes occurred on October 8, 2011. On November 30, 2011, a
Chatham County grand jury indicted appellant on charges of malice murder
(Middleton), felony murder (Middleton), two counts of aggravated assault
(Middleton, Graham), possession of a firearm during the commission of a crime, and
possession of a firearm by a convicted felon. The charge of possession of a firearm
by a convicted felon was bifurcated from the main trial which took place August 25-
28, 2014. At the conclusion of the main trial, the jury returned verdicts of guilty on
all counts that were not bifurcated. The State declined to move forward with the
bifurcated trial. The trial court sentenced appellant to life in prison for malice
murder, twenty years to serve concurrently for aggravated assault (Graham), and
five years to serve concurrently for possession of a firearm during the commission
of a crime. The felony murder charge was vacated as a matter of law and the
aggravated assault (Middleton) charge merged for sentencing purposes. Appellant
moved for a new trial on September 4, 2014, and amended the motion on September
22, 2016. On January 10, 2017, the trial court held a hearing on the motion for new
trial as amended, and denied it on May 31, 2017. Appellant filed his notice of appeal
on June 5, 2017. Upon receipt of the record, the case was docketed to the August
2018 term of this Court and submitted for a decision to be made on the briefs.
      In a light most favorable to upholding the jury’s verdicts of guilty, the

evidence shows as follows. On the night of October 7, 2011, and into the early

morning hours of October 8, appellant, Middleton, and Graham were at a local

nightclub. When the nightclub closed, Graham and Middleton, who were

riding in a greenish-grey sedan, went to a nearby gas station. Appellant, who

was driving a black SUV, also showed up there. Graham testified that as he

was sitting in his car waiting on Middleton, who had gone into the gas station

store, appellant entered the back seat of the car. Graham testified that appellant

expressed anger at Middleton over a $20 debt for “weed.”          In an effort to

defuse the situation, Graham paid appellant the money. Appellant exited

Graham’s car, returning to his own vehicle. When Middleton returned to the

gas station parking lot, he and appellant exchanged some heated words.

Eventually, Middleton re-entered Graham’s car, and the two men drove away.

Appellant followed Graham’s car, pulling up alongside it at an intersection a

few minutes later. Appellant shot into the passenger side of Graham’s vehicle

several times, killing Middleton.

      Once appellant opened fire, Graham testified he sped away from

appellant’s vehicle and was en route to a hospital to seek help for Middleton

when the police stopped him for speeding. Graham informed the police of
what had just transpired, leading police to commence an investigation. Upon

being taken in for questioning, Graham identified appellant as the shooter.

Meanwhile, Middleton was transported by ambulance to the hospital. The

medical examiner testified Middleton died from a bullet wound to the chest.

Police recovered a video recording from the gas station’s surveillance system

corroborating Graham’s description of the activities that took place there

minutes before the shooting, as well as recovered video recordings from the

City of Savannah’s street surveillance system depicting the shooting. These

recordings were played for the jury.

      1. Appellant does not dispute that the evidence was legally sufficient to

sustain his convictions. Nevertheless, we have independently reviewed the

record and conclude that the evidence was sufficient to authorize a rational trier

of fact to find beyond a reasonable doubt that appellant was guilty of the crimes

for which he was convicted. See Jackson v. Virginia, 

 (

, 61 LE2d 560) (1979).

      2. Appellant contends trial counsel was constitutionally ineffective on

the grounds that counsel: had a conflict of interest, gave improper advice

regarding a plea offer from the State, and failed to object to the trial court’s
charge on possession of a firearm during the commission of a crime. We now

examine each allegation of ineffective assistance in turn.

      (a) Appellant alleges trial counsel had a conflict of interest that rendered

him unable to provide effective assistance.

      Included within the constitutional right to counsel is the right to
      representation that is free from conflicts of interest. In order for
      appellant to prevail on his claim that his attorney was operating
      under a conflict of interest that violated his right to counsel, he
      must show an actual conflict of interest that adversely affected his
      attorney’s performance.
(Citations omitted.) Turner v. State, 

 (2) (a) (

) (2001).

An actual conflict may exist if counsel’s duty of loyalty to his client is in

conflict with his duty of loyalty to a third party. See White v. State, 

 (4) (a) (

) (2010) (counsel’s loyalties were divided between

her client and her employer). See also Handley v. State, 

 (2) (c)

(

) (2011) (a conflict of interest may involve a “specific concern”

that divides counsel’s loyalties). “Whether a conflict of interest denied a

defendant his right to effective counsel is a mixed question of law and fact, and

we review the questions of law involved de novo.” (Citation and punctuation

omitted.) Barrett v. State, 

 (2) (

) (2012).
      At the motion for new trial hearing, trial counsel testified that, prior to

trial, he and the prosecutor had discussed trial counsel’s representing the

prosecutor in the prosecutor’s divorce. Trial counsel stated that he disclosed

this issue to appellant before trial. Trial counsel testified appellant asked him

if the potential divorce representation could be used to disqualify the

prosecutor from his case, to which trial counsel responded that, since

appellant’s criminal representation had come up first, he would forgo taking

on the divorce case rather than seeking the disqualification of the prosecutor.

Trial counsel testified that, upon discussing the matter, appellant stated he was

fine with counsel’s keeping the divorce case. Trial counsel testified that he

was formally retained in the divorce action, and that it was filed after

appellant’s trial concluded. Trial counsel admitted the trial court was never

informed of the matter before or during trial. Appellant, who also testified at

the motion for new trial proceedings, denied he was aware of the issue until

after his conviction.

      Even assuming that a conflict existed, appellant has failed to present any

evidence of how counsel’s performance was adversely affected by counsel’s

agreement to represent the prosecutor in a divorce action. See Tolbert v. State,

 (2) (d) (

) (2015) (“The trial court was authorized to
conclude that [appellant] failed to demonstrate that his lawyer’s theoretical

division of loyalties ripened into an actual conflict of interest that significantly

and adversely affected the adequacy of the lawyer’s representation of him at

trial.”). Having failed to carry his burden of proof, appellant’s claim of

ineffective assistance cannot be sustained.

      (b) On appeal, appellant alleges trial counsel advised him that the judge

would likely sentence him to the maximum sentence of 20 years to serve2 if he

agreed to plead guilty to voluntary manslaughter.3 He also alleged that trial

counsel advised him that the jury would be instructed on voluntary

manslaughter should he elect to go to trial; however, at trial, the trial court

refused to give such an instruction. Appellant contends that but for the advice

about the voluntary manslaughter instruction, he would have taken the plea.




      2
          See OCGA § 16-5-2 (b).
      3
         The record shows the State offered appellant an open-ended plea to voluntary
manslaughter with the recommendation that appellant be sentenced to 20 years, with
14 of the years to be served in prison; however, the trial court had the discretion to
sentence appellant to serve more time. At a pretrial hearing, appellant acknowledged
to the trial court that he had discussed the plea offer with counsel and stated on the
record that he was rejecting it. At the motion for new trial hearing, counsel testified
the reason appellant rejected the plea offer was because he was unwilling to take a
deal that required serving more than ten years in prison.
In order to prevail on this ordinary claim of ineffective assistance of counsel,

appellant must

      prove both that his counsel’s performance was professionally
      deficient and that, but for the unprofessional performance, there is
      a reasonable probability that the outcome of the proceeding would
      have been different. See Strickland v. Washington, 

 (

, 80 LE2d 674) (1984). We need not review
      both elements of this test if the appellant fails to prove one of them.
      See Matthews v. State, 

 (

) (2017).
Stripling v. State, 

 (3) (b) (

) (2018). When reviewing

an ineffective assistance of counsel claim, we will accept the trial court’s

factual findings and determinations of credibility unless clearly erroneous, but

will independently apply legal principles to the facts. See Perdue v. State, 

 (3) (

) (2016).

      Assuming, without deciding, that counsel was deficient when he

allegedly advised appellant that the trial court would definitely charge the jury

on voluntary manslaughter, appellant cannot show prejudice — i.e., whether

the outcome of the plea process would have been different absent trial

counsel’s deficient advice. See Gramiak v. Beasley, 

 (I) (B) (

) (2018). At the time the State offered the plea, appellant was facing

a life sentence for murder, as well as additional years to serve for the

aggravated assault of Graham and for the charges related to possession of a
firearm. Even if an instruction on voluntary manslaughter had been given at

trial as counsel requested, there was no guarantee and no allegation that trial

counsel promised that the jury would return a verdict on a lesser included

offense. Thus, by rejecting the plea offer, which guaranteed a single conviction

for voluntary manslaughter and zero risk of being convicted of murder and

other charges, appellant took a significant risk of being convicted of murder

and other charges, whether or not the trial court instructed the jury on voluntary

manslaughter. Furthermore, according to trial counsel’s testimony, which the

trial court implicitly credited, the reason appellant rejected the State’s plea

offer was because he did not want to agree to any deal that required him to

serve more than ten years in prison. Therefore, appellant has failed to show

there was a reasonable probability he would have accepted the plea offer but

for counsel’s advice. 

. Accordingly, this claim of ineffective

assistance lacks merit.

      (c) Finally, appellant alleges trial counsel rendered ineffective assistance

when he failed to object to the following instruction on possession of a firearm

during the commission of a crime:

            Members of the jury, the last offense in the indictment is the
      offense of possession of a firearm during the commission of a
      crime. I charge you that a person commits the offense of
      possession of a firearm during the commission of a crime when the
      person has on his person a firearm during the commission of, or
      any attempt to commit a felony which is any crime involving the
      person of another. I further charge you that the crimes of murder
      and aggravated assault are felonies under the laws of this state.
Appellant argues this charge improperly enlarged the scope of his indictment

for this crime. We disagree. Count 5 of the indictment for possession of a

firearm during the commission of a crime described the conduct at issue as

follows: “[Appellant did] have on his person a firearm during the commission

of a crime involving another person . . . .” In addition, appellant was indicted,

in Counts 1 through 4, for the murder of Middleton and the aggravated assaults

of Graham and Middleton by “shooting” at them. The charge as given was

consistent with the entirety of the indicted charges for which verdicts of guilty

were returned.4 See also OCGA §§ 16-5-1, 16-5-21, 16-11-106. Accordingly,

trial counsel was not deficient for failing to make a meritless objection. See

Vergara v. State, 

 (3) (b) (

) (2010). Appellant’s

claims of ineffective assistance cannot be sustained.

      Judgment affirmed. All the Justices concur.



      4
        Appellant also alleges the charge improperly expanded the scope of Count 6
of the indictment. This assertion is inapposite, however, because Count 6 of the
indictment concerned possession of a firearm by a convicted felon, a crime for which
appellant was not ultimately tried. See supra, n.1 herein.
                         Decided March 11, 2019.

     Murder. Chatham Superior Court. Before Judge Karpf.

     Robert L. Persse, for appellant.

     Meg E. Heap, District Attorney, Emily C. Puhala, Assistant District

Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton,

Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General,

Meghan H. Hill, Assistant Attorney General, for appellee.