Lay v. State

FINAL COPY
                   S19A0361. LAY v. THE STATE.


     NAHMIAS, Presiding Justice.

     Appellant Jonah Lay was convicted of two counts of felony

murder and a firearm offense in connection with the shooting death

of Jason Abram. Appellant contends that the evidence presented at

his trial was insufficient to support his convictions, that venue was

not sufficiently proved, that his trial counsel was ineffective in

failing to object to certain testimony, and that he was not given the

proper amount of time for his closing argument. As explained below,

we reject Appellant’s contentions, but because the trial court erred

by entering convictions and sentences against him on two counts of

felony murder for killing one victim, we vacate those convictions and

remand the case for resentencing. 1


     1 Abram was killed on January 31, 2001. On April 17, 2001, a Fulton

County grand jury indicted Appellant for malice murder, felony murder based
on aggravated assault, felony murder based on possession of a firearm by a
convicted felon, aggravated assault, possession of a firearm during the
commission of a felony, and possession of a firearm by a convicted felon.
      1.    Viewed in the light most favorable to the verdicts, the

evidence presented at Appellant’s trial showed the following. On

January 31, 2001, Appellant lived at 1014 Dill Avenue, and Carol

Smith lived down the street at 852 Dill Avenue, which is in Fulton




Appellant was tried from June 16 to 18, 2004, and the jury found him not guilty
of malice murder but guilty of the other charges. The trial court sentenced
Appellant to serve life in prison for each count of felony murder and five
consecutive years for firearm possession during the commission of a felony. The
court merged the verdicts for aggravated assault and firearm possession by a
felon into the felony murder convictions. As discussed in Division 6 below,
Appellant should have been sentenced for only one count of felony murder, so
we remand the case for resentencing.
      Through his trial counsel, Appellant filed a timely notice of appeal
directed to this Court in June 2004. Appellant was then appointed appellate
counsel, who asked this Court to remand the case to the trial court to allow
Appellant to assert a claim of ineffective assistance of trial counsel. On June
16, 2005, we dismissed the appeal and remanded the case, which unfortunately
then languished for many years, with Lay filing various pro se motions. See
Lay v. State, 

 (

) (2011) (affirming the trial
court’s denial of Appellant’s pro se motion in arrest of judgment). In October
2013, new appellate counsel filed a document styled as an “amended” motion
for new trial, although it was actually the first such motion in the case. The
case then languished for another five years. On April 20, 2018, the trial court
held a hearing on the motion for new trial. After the hearing, Appellant filed a
motion for an out-of-time appeal and a motion to adopt the record of the motion
for new trial proceeding. The trial court granted both motions on May 17. Once
the out-of-time appeal was granted, it reset the time for Appellant’s post-trial
proceedings and his motion for new trial, which had been untimely, ripened.
See Fairclough v. State, 

 (

) (2003). The trial court
denied the motion for new trial on June 21, 2018. Appellant then filed a timely
notice of appeal, and the case was docketed in this Court for the term beginning
in December 2018 and submitted for a decision on the briefs.
County. Appellant and Smith had recently ended their romantic

relationship, and Smith was dating Abram. That morning,

Appellant called Smith’s house. Abram, who was visiting Smith,

answered the phone. Appellant asked to speak to Smith and then

told her and Abram to get their guns ready because he was on his

way to confront them. 2 Appellant then went to his room and got his

revolver. He gave it to his cousin, Marcus Brown, and they walked

out of the house together. When they got outside, Brown gave the

gun back at Appellant’s request. Brown stopped walking with

Appellant before they reached Smith’s house, because Brown knew

Appellant “had a beef” with Abram and Appellant said he was




      2 Several versions of what Appellant told Smith were presented at trial.

Smith testified that Appellant told her and Abram “to get all the guns ready,
that he was coming down there.” Smith’s niece Erica said that after Smith got
off the phone, she told Abram that Appellant “told us to get our guns together
because he’s coming to shoot us.” Appellant’s brother, who was near Appellant
when he made the call, told police that Appellant said, “Y’all mother f**kers
might as well get [your] pistols ready, because I’m on the way and that’s it.” At
trial, the brother testified that Appellant said, “Y’all get y’all mother f**king
s**t together, I’m on my way.” Finally, Appellant’s cousin Marcus Brown, who
was also near Appellant, testified that he heard Appellant say “something
about get your pistols ready.”
“getting ready to do something.”

      Down the street at Smith’s house, Smith told Abram about

Appellant’s threat, and Abram said he was going to go outside to

meet Appellant on the street to “keep him from coming to the house

and talk to him.” Smith’s niece Erica, who was also in the house,

asked Abram if he had a gun; he said, “yeah,” pointed to his back

pocket, and went outside. Smith also went outside, while Erica

stayed inside and watched from the window. Smith and Erica both

saw Appellant run down the street toward Abram carrying a gun.

Smith heard gunshots, and she ran back into the house and looked

out the window; she then saw Abram fall to the ground. She did not

see either man fire. Erica saw Appellant fire his gun, hitting Abram

and causing him to fall to the ground. She did not see Abram fire.

She heard three shots.3



      3 Brown testified that he saw Abram pull and point his gun (a 9mm

pistol) first. He said that Appellant and Abram shot at each other from “maybe
20 feet” apart, and he heard about ten shots. Brown told the police that Abram
shot first, but when testifying at trial, he admitted that he was not able to see
which of the men fired first because of his vantage point. A friend of Appellant,
who was also on the street at the time, testified for the defense that Abram
      Abram was hit twice, once in the arm and once fatally in the

lower abdomen. First responders found him lying in the front yard

of the house at 860 Dill Avenue; that house is the next house on Dill

Avenue after Smith’s house, although Graham Street runs between

them. Abram was taken to a hospital, where he died. The police did

not find a gun on or around Abram. The medical examiner concluded

that both shots were fired at Abram from at least two feet away. The

two bullets that struck Abram were .38-caliber metal-jacketed

bullets fired from the same revolver. A .38-caliber metal jacket

fragment, which matched the bullets removed from Abram, was

found at the scene, as were eight 9mm cartridge cases.

      Immediately after the shooting, Appellant and Brown ran to a

cousin’s car nearby and drove away. In the car, Appellant said that

he hoped he hit Abram but did not kill him. Some time later that

day, Appellant called his brother and his brother asked if Appellant



fired the first shot and Appellant returned fire. The friend also heard someone
yell from the house to Abram, “he got a gun, [Abram], he got a gun, shoot him,
shoot him.” On cross-examination, the friend admitted that at an earlier
hearing he had testified that Abram “fell off” before firing his gun, but he
claimed that he did not mean that Abram fell to the ground before he fired.
knew that he had killed Abram. Appellant answered, “I did? I hit

him? Good. Good.” The police spoke to Appellant’s family and

encouraged them to have him turn himself in, which he did later

that evening. About a week before trial, Appellant sent his brother

a letter asking him to recant his statement to the police that

Appellant told Smith and Abram that Appellant was on his way and

they should get ready.

     Appellant did not testify at trial. His defense was that Abram

shot at him first and he was defending himself.

     2.    Appellant argues that the evidence presented at trial

required the jury to find that he acted in self-defense, but there was

sufficient evidence for the jury to conclude that he was in fact the

aggressor in the confrontation with Abram. See OCGA § 16-3-21 (b)

(3) (stating that “[a] person is not justified in using force [in self-

defense] if he . . . [w]as the aggressor”); Mosby v. State, 

 (

) (2017) (“An aggressor is not entitled to a finding

of justification.”). Appellant warned Smith that he was coming to the

house where she was with Abram and that they should be ready
with guns. Then he armed himself and hurried down the street to

confront Abram, telling Brown that he was “getting ready to do

something.” Smith and Erica saw Appellant approach Abram

carrying a gun, and Erica then saw Appellant fire first. After killing

Abram, Appellant fled the scene, expressed satisfaction that he had

shot Abram, and tried to get his brother to lie about the events

leading to the shooting.

     Although Brown testified that Abram drew and pointed his gun

first and Appellant’s friend testified that Abram fired the first shot,

that testimony would not necessarily mean that Appellant was not

the initial aggressor, and the jury was entitled to disbelieve that

testimony entirely. Indeed, Brown had changed his story about

being able to see who fired first, and Appellant’s friend seemed to

change his story about Abram falling down before he fired back at

Appellant. See Lowe v. State, 

 (

) (2016)

(explaining that a jury is free to disbelieve the defendant’s evidence

of self-defense); Vega v. State, 

 (

) (2009)

(“‘It was for the jury to determine the credibility of the witnesses and
to resolve any conflicts or inconsistencies in the evidence.’” (citation

omitted)). See also Mosby, 

 (“That [the appellant] fired

the fatal shot while trying to get away from the gunfight she started

does not change the analysis regarding the lack of justification of a

defendant who was shown to be the aggressor.”). When viewed in

the light most favorable to the jury’s verdicts, the evidence

presented at trial was legally sufficient to authorize the jury to find

Appellant guilty beyond a reasonable doubt of the crimes of which

he was found guilty. See Jackson v. Virginia, 

 (

, 61 LE2d 560) (1979).

     3.    Appellant also argues that the State did not sufficiently

prove that the crimes happened in Fulton County. “‘[V]enue is a

jurisdictional fact the State must prove beyond a reasonable doubt

in every criminal case.’” Worthen v. State, 

 (

) (2019) (citation omitted).

     As discussed earlier, the evidence at trial showed that Smith

lived at 852 Dill Avenue, which is in Fulton County, and the deadly

confrontation occurred very near that address; Abram was found
lying in the front yard of 860 Dill Avenue, which is across a street

from Smith’s house. Although there was no direct testimony that the

location where the fatal injury was inflicted is also in Fulton County,

“[t]he State may meet its burden at trial using either direct or

circumstantial evidence.” 

 The jurors could reasonably infer from

the proximity of the crime scene to 852 Dill Avenue that it too is in

Fulton County, particularly as there was no evidence or even

argument that the crime scene is near a county line. See 

.

“Ordinary Georgians understand from their everyday experience

that it is highly unusual to cross a county line when they merely

walk across the street.” 

 at 868 n.3.4 Accordingly, the evidence

presented at trial was sufficient to prove that Appellant’s crimes

were committed in Fulton County as charged.

      4.    At trial, the lead detective on the case, Jim Rose, testified


      4 Appellant relies on Division 3 of Jones v. State, 

 (

) (2000), where this Court held that venue in Fulton County was not
sufficiently proved when the evidence showed only that a neighbor’s house
across the street from the crime scene was in that county because “[i]t is
entirely possible that the neighbor’s house is located in one county, while the
houses located across the street are sited in an adjoining county.” 

 at 903-
904. We rejected that reasoning and overruled that holding in Worthen. See

.
that he was not at the police station when Appellant turned himself

in, but Detective Michael Anthony called to brief him on the

situation. Detective Rose gave this account of the call, without

objection:

     [Detective Anthony] asked me if I was going to come in.
     And at first I told him yes, I would come in, because
     [Appellant] had signed a waiver, which meant waiver of
     counsel, that he wanted to speak to — to us in reference
     to this incident. And then I received, I believe, a second
     phone call a minute or two after that, and I was advised
     by Detective Anthony that [Appellant] had changed his
     mind, and he did not want to speak to us, he wanted to
     speak to his attorney first. At that point I advised
     Detective Anthony to — to complete the proper paperwork
     and to arrest him for the murder based on the warrant.

     After Detective Rose testified, Detective Joe Smith testified

that when Appellant turned himself in, Detective Smith read

Appellant his Miranda rights. See Miranda v. Arizona, 

 (

, 16 LE2d 694) (1966). Appellant’s counsel

objected to this testimony, and the prosecutor explained that he

wanted the detective only to testify that Appellant was read his

rights. The trial court allowed the testimony. The prosecutor then

asked his final question — whether “that [was Detective Smith’s]
complete involvement in the case,” to which the detective said, “yes.”

On cross-examination, Appellant’s counsel asked Detective Smith if

Appellant “chose to exercise his rights,” to which the detective said

“yes.” The prosecutor made no further mention of Appellant’s

exercising his right to remain silent after turning himself in.

      Appellant claims that his trial counsel provided ineffective

assistance by failing to object to Detective Rose’s comment on

Appellant’s invocation of his right to silence because that testimony

violated his right against self-incrimination. See U. S. Const.

amend. V; Ga. Const. of 1983, Art. I, Sec. I, Par. XVI. 5 To prove that

his counsel was constitutionally ineffective, Appellant must show

both that the lawyer’s performance was deficient — meaning that

the lawyer performed his duties “in an objectively unreasonable



      5 Appellant characterizes this issue as implicating the rule prohibiting

comments on a defendant’s pre-arrest, pre-Miranda-warnings silence that this
Court announced in a case decided under Georgia’s old Evidence Code. See
Mallory v. State, 

 (

) (1991), overruled on other
grounds, Clark v. State, 

 (

) (1999). Although this
case was also tried under the old Evidence Code, it does not implicate Mallory’s
rule because Appellant invoked his right to remain silent after he was advised
of his Miranda rights, leaving this issue governed by constitutional law. See
State v. Spratlin, 

 (

) (2019).
way, considering all the circumstances and in the light of prevailing

professional norms” — and that the deficient performance caused

Appellant prejudice, meaning that there is “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” State v. Spratlin, 

 (

) (2019) (citations and punctuation omitted).

See also Strickland v. Washington, 

 (

, 80 LE2d 674) (1984). Appellant has not met either part of this

test.

        On the question of deficient performance,

        the law recognizes a strong presumption that counsel
        performed reasonably, and [Appellant] bears the burden
        of overcoming this presumption. To carry this burden, he
        must show that no reasonable lawyer would have done
        what his lawyer did, or would have failed to do what his
        lawyer did not. In particular, 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.

Spratlin, 

 (citations and punctuation omitted).

        Appellant’s trial counsel testified at the motion for new trial
hearing that an objection to Detective Rose’s testimony just “got

away” from him. The fact that trial counsel “failed to articulate any

strategic reasons for his failure to object makes no difference,”

however, because our inquiry is focused on “‘the objective

reasonableness of counsel’s performance, not counsel’s subjective

state of mind.’” Jones v. State, 

, 601 n.7 (

)

(2013) (quoting Harrington v. Richter, 

 (

, 178 LE2d 624) (2011)). Assuming that Detective Rose’s

reference to Appellant’s not wanting to speak to the police before

talking to his counsel was objectionable, a competent defense lawyer

reasonably could have chosen to let that brief comment pass so as

not to draw attention to it. The comment came in the midst of the

detective’s explanation of what happened when Appellant turned

himself in to the police, and it was not emphasized or even

mentioned again by the prosecutor. See, e.g., Wright v. State, 

 (

) (2003) (explaining that the “decision

not to object [to a police officer’s passing reference to the defendant’s

post-arrest silence] was a valid exercise of professional judgment”);
Jackson v. State, 

 (

) (2010) (same).

     Appellant cannot show prejudice for a similar reason. Detective

Rose’s fleeting reference to Appellant’s change of mind and

invocation of his right to silence — to explain why the detective

changed his plan and did not go to the police station as soon as

Appellant turned himself in — is unlikely to have affected the result

of the trial. We see no reasonable probability that the jury would

have concluded that Appellant acted in self-defense had they not

been told that he declined to speak to police officers before speaking

to his attorney. Any impression the jury might have had that

Appellant’s unwillingness to speak was evidence that he did not act

in self-defense was likely mitigated by the evidence that he turned

himself in voluntarily only hours after the shooting. Moreover,

Detective Rose’s comment was somewhat cumulative, as the jury

heard Detective Smith’s testimony — in response to cross-

examination by Appellant’s counsel — that after Appellant was read

his Miranda rights, he chose to exercise them. Accordingly,

Appellant has failed to show that his trial counsel was ineffective.
See Spratlin, 

.6

      5.    The day before closing arguments began, the trial court

told the jury that the attorneys anticipated that their arguments

would be about an hour each. The next day, the following exchange

occurred in front of the jury:

      COURT: I told you last night that the law gives each side
      an hour for closing arguments in this case. That’s right
      isn’t it?
      PROSECUTOR: Yes, your honor.
      COURT: Sometimes I worry it’s two hours.

Appellant’s counsel did not object to the trial court’s stated plan to

give each side an hour for closing argument. During the defense

closing, presumably as Appellant’s hour was coming to an end, the

trial court interrupted counsel, telling him that he had ten minutes

left. Counsel then spoke for a short time before ending his argument.




      6 To the extent Appellant argues that the trial court’s allowing Detective

Rose’s testimony was plain error, see OCGA § 24-1-103 (d), that argument fails
because Appellant cannot show prejudice from the admission of the testimony.
See Hampton v. State, 

 (

) (2017) (“[T]his
Court has equated the prejudice step of the plain error standard with the
prejudice prong for an ineffective assistance of counsel claim.”).
He did not request more time.7

      OCGA § 17-8-73 says that “[i]n cases involving capital felonies,

counsel shall be limited [in their closing arguments] to two hours for

each side.” This two-hour limit “applies to malice murder and felony

murder cases [like Appellant’s case] regardless of whether the

prosecution seeks the death penalty,” and “‘[t]he trial court has no

discretion to impose any further limit on the time for closing

argument.’” Agee v. State, 

 (

) (2005)

(citation omitted). The trial court therefore erred by limiting

Appellant’s closing argument to one hour. See 

 However,

Appellant’s counsel did not object either when the trial court

announced that it would give him one hour or when the court told

him that his time for argument was running out. Accordingly,

Appellant forfeited his right to raise this issue on appeal. See id.

      6.    As explained in footnote 1 above, the jury found Appellant




      7 The trial transcript does not indicate the starting and stopping time of

Appellant’s closing argument, but the trial court clearly expressed its intention
to give his counsel one hour and the parties seem to agree that Appellant was
given one hour.
guilty of two counts of felony murder for killing Abram, and the trial

court entered a conviction and life sentence on each of those counts.

That was error. See Dixon v. State, 

 (

)

(2017) (explaining that if this Court notices that an appellant was

given an illegal sentence, we have discretion to correct the sentence

on direct appeal, even if the issue was not raised by the appellant).

Because there was only one murder victim, one of the felony murder

counts was actually vacated as a matter of law. See Cowart v. State,

 (

) (2013). “[T]he decision as to which

of the two felony murder verdicts should be deemed vacated — a

decision that may affect which other verdicts merge and thus what

other sentences may be imposed — is left to the discretion of the trial

court on remand.” 

 We therefore vacate both felony murder

convictions and sentences and remand the case for the trial court to

enter a conviction and sentence on only one of them and to adjust

any affected convictions and sentences accordingly. See 

     Judgment affirmed in part and vacated in part, and case

remanded. All the Justices concur.
                      Decided April 29, 2019.

     Murder. Fulton Superior Court. Before Judge Markle.

     Zell & Zell, Rodney S. Zell, for appellant.

     Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder,

Stephany J. Luttrell, Assistant District Attorneys; Christopher M.

Carr, Attorney General, Patricia B. Attaway Burton, Deputy

Attorney General, Paula K. Smith, Senior Assistant Attorney

General, Katherine D. Emerson, Assistant Attorney General, for

appellee.