Cox v. State

FINAL COPY

               S19A0791. COX v. THE STATE.


      MELTON, Chief Justice.

      Following a jury trial, Joshua James Cox was convicted of

felony murder and possession of a firearm during the commission of

a felony in connection with the shooting death of Terrell Clark.1 Cox

appeals, arguing that the evidence was insufficient to support his

convictions; that he was denied effective assistance of counsel; and

that the trial court erred in denying Cox’s motion for mistrial, erred




      1 On December 15, 2015, Cox was indicted by a Lamar County grand jury

for malice murder, felony murder predicated on possession of a firearm during
the commission of a felony, and two weapons charges. Following a jury trial
from January 23-26, 2017, Cox was found guilty of felony murder and
possession of a firearm during the commission of a felony, and he was acquitted
of the remaining charges; he was sentenced to life in prison plus five years’
probation.
       Cox filed a motion for new trial on February 17, 2017, which he amended
through new counsel on October 9, 2018. After a hearing, the trial court denied
the motion on January 16, 2019. Cox timely filed a notice of appeal; the appeal
was docketed to the April 2019 term of this Court and was thereafter submitted
for a decision on the briefs.
in admitting Cox’s custodial statement into evidence, and erred in

denying Cox’s motion to excuse the jury pool. We affirm.

     1. Cox claims that the evidence was insufficient to support his

convictions because the evidence showed that he was involuntarily

intoxicated and defending himself at the time of the shooting. When

evaluating the sufficiency of evidence, “the relevant question is

whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the

essential elements of the crime[s] beyond a reasonable doubt.”

(Citation and emphasis omitted.) Jackson v. Virginia, 

 (III) (B) (

, 61 LE2d 560) (1979). “This Court does

not reweigh evidence or resolve conflicts in testimony; instead,

evidence is reviewed in a light most favorable to the verdict, with

deference to the jury’s assessment of the weight and credibility of

the evidence.” (Citation and punctuation omitted.) Hayes v. State,

 (

) (2013). See also McNeely v. State,

 (1) (

) (2015) (“Resolving evidentiary
                                 2
conflicts and inconsistencies and assessing witness credibility are

the province of the fact finder, not the appellate court.” (Citations

and punctuation omitted.)).

     Viewing the evidence in this light, the record shows that Cox

and Clark met in early 2015 and became acquaintances who often

smoked marijuana together. On July 13, 2015, Cox bought LSD

(“acid”) from Clark and then went to a friend’s house where he took

one “hit” of acid every hour starting at 8:00 p.m. and ending at

midnight.

     The next morning, Clark invited Cox to his home and the men

smoked marijuana together.      Around 9:00 a.m., one of Clark’s

neighbors heard two gunshots. She did not hear any argument or

commotion prior to the shooting. After the gunshots, the neighbor

saw a man, later identified as Cox, out in the roadway shouting into

his phone.   The evidence established that Cox had called 911,

admitted to the dispatcher that he had just shot someone, and stated

that he was going to lay his gun down in the road and wait until
                                  3
officers arrived. However, Cox refused to provide the dispatcher

with his location. Cox dropped to his knees and threw his phone on

the ground. He then stood abruptly, ran down the driveway, jumped

into his truck, and sped off.

     Cox drove to his parents’ house and, upon his arrival, Cox’s

father, Kenneth, who was also a police officer, noticed that his son

was speaking and acting erratically, leading Kenneth to conclude

that his son was under the influence of some kind of substance.

Kenneth immediately removed all weapons from within his son’s

reach, including a gun that had fallen out of Cox’s truck. Cox’s

strange behavior continued wherein he: physically attacked both of

his parents, removed all of his clothing, jumped into a nearby pond,

and stomped on the television remote control with his bare feet. His

behavior had become so erratic that Kenneth ultimately tased and

handcuffed his son until the police arrived.

     In the meantime, after receiving additional calls reporting the

shooting, the police arrived at Clark’s home and found him dead in
                                  4
the front yard. Officers located marijuana and a smoking device

inside the home, and found two shell casings near Clark’s body,

which were later determined to have been fired from the handgun

that had fallen from Cox’s truck. The medical examiner concluded

that Clark died as a result of two gunshot wounds: one to the head

and one to the torso. Additionally, there was no evidence of soot or

stippling on Clark’s clothing, indicating that he was not shot at close

range. Officers obtained blood samples from Clark and Cox,2 and

the jury heard evidence that the only drug present in both men’s

blood was marijuana.3

     Cox was initially arrested for the domestic dispute that

occurred at his parents’ house. However, while in jail, Cox admitted

to a detention officer and a sergeant that he thought he had killed

someone. Detectives interviewed Cox the next day. He admitted to



     2  Cox’s blood was drawn on July 15, the same day that he was
interviewed by law enforcement.
      3 These reports are separate from the independent toxicology report

discussed in Division 2 (a) that was excluded prior to trial.
                                    5
police that he had purchased acid from Clark the night before the

shooting and took five “hits” of acid. He told officers that he no

longer felt the effects of the drug when he arrived at Clark’s home

the next morning before the shooting occurred. However, after he

and Clark smoked marijuana, Cox told the investigators that he

began to feel as if he was “tripping” again.          Cox also told the

investigators that he noticed that Clark acted strangely after they

smoked marijuana, explaining that Clark “started talking crazy a**

s**t,” stating things like “this [is] it” and “this [is] the day.”

     Cox stated that he needed to leave and the men walked out to

Cox’s truck. The vehicle was unlocked, but Clark had the keys.

After they reached the vehicle, Clark put his hands on Cox’s

shoulder and back, which caused Cox to push Clark away. Cox said

that Clark then started speaking in another language and growling,

which “freaked him out.” Cox said that Clark “came at” him and, as

the unarmed Clark approached, Cox grabbed a gun from the door of

his truck and shot twice. Cox told officers that, based on all the
                                     6
circumstances, he was scared and felt that he had no other option

but to shoot Clark.

     Based on the foregoing, we find that the evidence was sufficient

to enable a rational trier of fact to conclude beyond a reasonable

doubt that Cox was guilty of the crimes for which he was convicted.

See 

 The jury was free to reject Cox’s claim that he

was involuntarily intoxicated and acting in self-defense at the time

that he shot and killed Clark. See Shaw v. State, 

(1) (

) (2013) (“[T]he issues of witness credibility and

justification are for the jury to decide, and the jury is free to reject a

defendant’s claim that he acted in self-defense.” (Citation and

punctuation omitted.)). See also OCGA § 16-3-4 (c) (“Voluntary

intoxication shall not be an excuse for any criminal act or

omission.”).

     2. Next, Cox alleges four instances of ineffective assistance of

counsel. Specifically, he contends that trial counsel was ineffective

for: (a) moving to exclude an independent toxicology report showing
                                    7
that Clark had LSD in his system on the day of the shooting; (b)

failing to move for a mistrial after discovering that the jury had

participated in improper communications; (c) failing to move for a

mistrial or request a curative instruction after the State improperly

commented on inadmissible evidence during closing arguments; and

(d) failing to move for a mistrial or request a curative instruction

after the State put forth improper victim impact evidence in its

closing argument. Cox also alleges that the cumulative effect of trial

counsel’s errors substantially prejudiced him at trial.

     In order to establish constitutionally ineffective assistance, a

defendant must show that his counsel’s performance was

professionally deficient and that, but for such deficient performance,

there is a reasonable probability that the result of the trial would

have been different. See Strickland v. Washington, 

(III) (

, 80 LE2d 674) (1984). If the defendant fails to

satisfy either prong of the Strickland test, this Court is not required

to examine the other. See Green v. State, 

 (2) (

359) (2012). “A court considering a claim of ineffective assistance

must apply a ‘strong presumption’ that counsel’s representation was

within the ‘wide range’ of reasonable professional assistance.”

(Citation omitted.) Harrington v. Richter, 

 (IV) (

, 178 LE2d 624) (2011). Indeed, “[t]rial tactics and strategy

. . . are almost never adequate grounds for finding trial counsel

ineffective unless they are so patently unreasonable that no

competent attorney would have chosen them.”            (Citation and

punctuation omitted.) McNair v. State, 

 (2) (b) (

) (2014). “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.” (Citation and punctuation omitted.) Wright

v. State, 

 (2) (

) (2012). With these

principles in mind, we review Cox’s claims of ineffective assistance.

     (a) Pre-trial Motion in Limine



                                  9
     During pre-trial proceedings, trial counsel successfully moved

to exclude an independent toxicology report, which revealed that

Clark had LSD in his system when he died. Cox alleges that this

amounted to ineffective assistance because the report would have

been helpful to his defense.     However, trial counsel’s strategic

decision to move to exclude the report was reasonable.

     The record shows that part of the defense’s theory was that the

marijuana Cox and Clark smoked on the day of the shooting was

laced, without Cox’s knowledge, with NBOMe, a synthetic form of

acid that, unlike LSD, does not show up on a general toxicology

screen. In support of this theory, trial counsel called Dr. Gaylord

Lopez as an expert witness at trial in order to explain how NBOMe

affects the human body and what additional testing is needed in

order to detect its presence in blood. Trial counsel relied upon this

evidence to argue that Cox’s involuntary ingestion of this synthetic

drug affected his mental capacity at the time of the shooting, to

explain Cox’s bizarre behavior at his parents’ house after the
                                 10
shooting, and to attack the reliability of the general toxicology

screens introduced into evidence in the case.

     At the motion for new trial hearing, trial counsel explained

that he sought to exclude the independent toxicology report showing

LSD in Clark’s blood because it would have hurt the defense’s theory

that both men had smoked marijuana laced with NBOMe on the day

of the shooting, especially where the other toxicology reports only

showed the presence of marijuana. Trial counsel’s strategy was

reasonable.

     While other counsel, had they represented appellant, may
     have exercised different judgment, the fact that trial
     counsel chose to try the case in the manner in which it
     was tried, and made certain difficult decisions regarding
     the defense tactics to be employed with which appellant
     and his present counsel now disagree, does not require a
     finding that the representation below was so inadequate
     as to amount to a denial of effective assistance of counsel.

Lewis v. State, 

 (3) (

) (1980). We agree

with the trial court’s conclusion that Cox has failed to show deficient

performance under Strickland.

                                  11
     (b) Alleged Improper Jury Communications

     During a break in the presentation of the State’s case-in-chief,

a bailiff informed the court and the parties that he overheard the

jurors in the jury room “saying something about self-defense. That’s

all I heard. They were saying self-defense.” The trial court informed

the parties that it was going to summon the jury into the courtroom

and give them further instructions. Without objection from either

party, the trial court instructed the jury as follows:

     I think I told you this once at the start of trial. You’re not
     to talk about this case. All you’re going to do is cause me
     to have a mistrial and have to do it again. If any of you
     are discussing this case and it may have influenced your
     decisions in this case, you need to tell the Court now. And
     come up here and tell me. If things are fine, I’m telling
     you ahead of time, do not be discussing this case until the
     case is over with and you go to the jury room. You will
     cause me to do this twice and I don’t want to do it twice.

None of the jurors responded to the trial court’s request, and no one

questioned the jurors about the alleged improper discussion.

Seemingly unsatisfied, trial counsel requested, once again, that the

court instruct the jurors that they were not allowed to discuss the
                                   12
case amongst themselves. The trial court told the jury “[d]o not talk

about the case to anybody or to yourselves until the case is over

with.” The court asked the jurors if they had any questions and,

after receiving no response, the trial continued.

     Cox alleges that trial counsel was ineffective for failing to move

for a mistrial after discovering that the jury had participated in

improper communications. However,

     [g]iven th[e] lack of proof of any real problem, we conclude that
     the trial court’s solution — reminding the jurors not to
     communicate about the case before deliberations and giving
     them an opportunity to express any concerns — was
     appropriate, and a mistrial was not mandated.


  Saffold v. State, 

 (5) (

) (2016). And
it is well settled that trial counsel cannot be ineffective for failing to
make a meritless motion. See Bradshaw v. State, 

 (3) (a)
(

) (2016); Leonard v. State, 

 (4) (

) (2012); Lupoe v. State, 

 (3) (f) (

) (2008).
       Furthermore, the record shows that counsel made a reasonable

strategic decision not to press the issue. Trial counsel testified that

he did not move for a mistrial at this time because he was “happy

that the jury was considering self-defense” prior to the State resting
                                    13
its case and “felt that we had a jury that was actually going to

consider self-defense. So, we actually thought we were in a good

position, that we had an open-minded jury that was actually going

to listen to our side of the story.” In light of this reasonable strategic

choice, we find that the record supports the trial court’s conclusion

that counsel was not ineffective.

     (c) State’s Alleged Improper Comment on Evidence

     Cox alleges that trial counsel was ineffective for failing to move

for a mistrial or request a curative instruction when, during closing

arguments, the State allegedly improperly commented on the

toxicology report that was excluded pre-trial as discussed in Division

2 (a), supra. While arguing that the defense was attempting to

“muddy the waters” and place doubt in the jury’s mind, the

prosecutor made the following statement:

     They give you, in his opening, about grave suspicion or
     bare suspicion, that you shouldn’t convict anybody on
     bare or grave suspicion. Well, he’s convicting [Clark] of
     doctoring a blunt on bare suspicion, just based on this
     doctor’s thing, oh it has the appearance of NBOMe. [Cox]
                                    14
     did at least ten hits [of acid] the night before. Even the
     doctor said that was a lot and he would expect that would
     cause problems. There’s absolutely no evidence in
     [Clark’s] blood of anything but marijuana that was
     testified to. So, if they both did it, it’s not in [Clark’s]
     blood. He’s trying to muddy the waters.

Cox alleges that counsel was ineffective for failing to object to this

statement because the prosecutor improperly commented on the

excluded toxicology report showing LSD in Clark’s system.

However, reading the prosecutor’s closing argument as a whole, an

objection would not have been successful, as the prosecutor did not

make an improper comment on inadmissible evidence. Indeed, the

prosecutor was responding to defense counsel’s NBOMe arguments

by focusing the jury’s attention on what the only evidence presented

actually showed — i.e., that there was only marijuana found in

Clark’s and Cox’s blood. And counsel cannot be deficient for failing

to make a meritless objection. See Duvall v. State, 

 (2)

(b) (

) (2012).

      (d) State’s Alleged Improper Victim Impact Argument

                                  15
     Cox also alleges that trial counsel was ineffective for failing to

move for a mistrial, object, or request a curative instruction after the

State put forth allegedly improper victim impact evidence in its

closing argument. Specifically, the prosecutor made the following

statement:

     Ladies and Gentlemen, this drug epidemic produces no
     winners or losers. This is a unique trial right here. It’s
     caused a lot of hurt. We’ve got a family over here who have
     heard it every day since July 14, 2015. I will tell you this,
     Ladies and Gentlemen. This defendant is personally
     responsible for the cause of that hurt. I ask you find him
     guilty and hold him personally responsible.

Cox contends that this argument was improper victim impact

evidence and that trial counsel was ineffective for failing to move for

a mistrial, object, or ask for a curative instruction. But the record

shows that counsel made a reasonable, strategic decision not to take

any action in regard to the State’s argument.

     At the hearing on Cox’s motion for new trial, trial counsel

testified that he interpreted the prosecutor’s argument as a demand

for justice and a call for accountability, not an improper victim
                                   16
impact statement.      Accordingly, counsel did not feel that an

objection was warranted. See Poellnitz v. State, 

(

) (2014) (“It is not improper for a prosecutor to appeal

to the jury to convict for the safety of the community, or to argue to

the jury the necessity for enforcement of the law and impress on the

jury its responsibility in this regard.” (Citation and punctuation

omitted.)).

     Regardless of whether trial counsel was accurate in his

interpretation, he further explained that he did not want to “draw

more attention to the fact that [Clark] was dead,” explaining that an

objection “would have led to a colloquy between myself and the State

that just would have hammered that fact. And I thought we were in

a decent position at that point in time. So, strategically, I was not

going to object.” In light of this reasonable strategic choice, and the

brevity of the State’s argument, we find that the record supports the

trial court’s conclusion that counsel was not deficient and that Cox

was not prejudiced by the failure to object.
                                  17
     (e) Cumulative Effect

     Cox argues that the cumulative effect of counsel’s alleged

errors prejudiced the outcome of his trial. When reviewing such a

claim, we “evaluate only the effects of matters determined to be

error, not the cumulative effect of non-errors.”      (Citation and

punctuation omitted.) Bulloch v. State, 

 (2) (

) (2013). Because Cox has failed to show deficiency on any

of his allegations of ineffective assistance, his cumulative effect

assertion has no merit. See Chapman v. State, 

 (2) (e)

(

) (2012).

     3. Finally, Cox alleges that the trial court erred by: (a) not

declaring a mistrial after improperly commenting on the evidence in

front of the jury; (b) failing to suppress Cox’s custodial statements

to officers, as they were not made knowingly and voluntarily; and (c)

denying Cox’s motion to excuse the jury pool after the jury was

tainted by outside protestors before the start of trial. We review

these claims in turn.
                                 18
     (a) Alleged Improper Comments on the Evidence

     The record shows that, as defense expert witness Dr. Gaylord

Lopez was stepping down from the stand, the following transpired:

     COURT: . . . Is he released?
     DEFENSE: Yes.
     COURT: Whatever you want to do Dr. Lopez. Was
     it a doctor? He is a doctor, isn’t he? Okay.
     DEFENSE: He is a doctor of pharmacy.
     COURT: But he’s still a doctor.

Defense counsel immediately requested a bench conference and

asked the court whether it meant to imply that the expert was not a

real doctor. The trial court responded, “No. I said was his title a

doctor.” Trial counsel moved for a mistrial, arguing that the court

improperly commented on the credibility of the defense’s expert.

The trial court denied the motion, explaining, “I was not sure his

title was a doctor and that’s what I was trying to get to.” Cox claims

that the trial court’s ruling was error, as it violated OCGA § 17-8-

57. We disagree.




                                  19
      OCGA § 17-8-57 states, in relevant part, that “[i]t is error for

any judge, during any phase of any criminal case, to express or

intimate to the jury the judge’s opinion as to whether a fact at issue

has or has not been proved or as to the guilt of the accused.” Id. at

(a) (1). “The purpose of OCGA § 17-8-57, at least in part, is to

prevent the jury from being influenced by any disclosure of the trial

court’s opinion regarding the credibility of a witness,” because “[t]he

determination of the credibility of a witness is soundly within the

province of the jury and is a material fact in every case.” (Citations

omitted.) Murphy v. State, 

 (2) (

) (2012).

     In this instance, and viewing the trial court’s statement in the

proper context, the trial judge’s comment cannot reasonably be

construed as commenting upon Dr. Lopez’s credibility. Accordingly,

we find no error.

     (b) Custodial Statements

     Next, Cox contends that the trial court erred by failing to

suppress his custodial statement to officers because he was still
                                  20
under the influence of drugs at the time of his interview and,

therefore, could not have knowingly and voluntarily waived his

rights pursuant to Miranda v. Arizona, 

 (

,

16 LE2d 694) (1966). Prior to trial, the court held a Jackson v.

Denno4 hearing on Cox’s motion to suppress his custodial statement.

Two investigators testified at the hearing; the State introduced a

signed Miranda waiver; and the trial court reviewed the video of

Cox’s custodial interview.       After the hearing, the trial court

determined that Cox’s statement to investigators was “knowingly

and voluntarily made after the Defendant was read Miranda

[rights],” and ruled the statement admissible at trial. We find no

error.

     “The trial court determines the admissibility of a defendant’s

statement under the preponderance of the evidence standard

considering the totality of the circumstances.” (Citation omitted.)

Vergara v. State, 

 (

) (2008). “Although


     4 

 (

, 12 LE2d 908) (1964).
                                    21
we defer to the trial court’s findings of disputed facts, we review de

novo the trial court’s application of the law to the facts.” (Citation

omitted.) Clay v. State, 

 (

) (2012).

We “will not disturb the trial court’s factual and credibility

determinations unless they are clearly erroneous.”          (Citation

omitted.) Wright v. State, 

 (

) (2009).

However, “‘(w)here controlling facts are not in dispute, . . . such as

those facts discernible from a videotape, our review is de novo.’”

(Citation omitted.)Vergara, 

.

     The record shows that investigators waited a full day before

speaking with Cox so as to ensure that he was sober at the time of

the interview. At the Jackson v. Denno hearing, the investigators

testified, and the videotape of Cox’s confession showed, that he was

advised of his Miranda rights, and that he fully understood those

rights and knowingly waived the same in order to speak with law

enforcement. The video also showed that: Cox was calm, coherent,

and alert during his interview; he was oriented to time and place;
                                  22
answered questions appropriately; and he gave a clear and detailed

description of events. See, e.g., Norris v. State, 

 (II) (

) (2018). Indeed, there is nothing in the record to show

that Cox was under the influence of any substance at the time of his

interview.

     Because the evidence supports the trial court’s conclusion that

Cox knowingly and voluntarily waived his Miranda rights before

giving his custodial statement to police, it was not error for the trial

court to admit the statement into evidence at trial.

     (c) Motion to Excuse Jury Pool

     Prior to the start of Cox’s trial, the court transferred his case

from Lamar County to Monroe County because of the publicity

surrounding the case. On the morning of trial, and before the jurors

were officially qualified to sit and hear the case, the trial court asked

the jury pool if “anything occurred today prior to us getting started

that may have [a]ffected your ability to serve as a juror” in the case.

The trial court received no response.           Defense counsel then
                                   23
approached the bench and moved the court to excuse the jury,

arguing that three protestors standing outside the courthouse with

signs “poisoned” the entire jury pool. The State opposed the motion

and contended that there was only one person outside the

courthouse with a sign.        The trial court withheld ruling on the

motion and continued to qualify the jury, asking the potential jurors

whether they had formed an opinion as to the guilt or innocence of

the accused and if they had any prejudice or bias in the case.

     At this time, trial counsel re-approached the bench and

renewed his motion, once again arguing that the pool was “tainted

by the protestors out front” and that “some of [the jury] may have

been intimidated.” The State responded that “everybody was asked

. . . if they had any knowledge or [had] heard [anything about] this

case and . . . nobody said they were intimidated or knew anything

about this case.” The trial court agreed and denied the motion. Cox

alleges that this was error.



                                    24
     This Court reviews the excusal of potential jurors for cause for

an abuse of discretion. See Akhimie v. State, 

 (2)

(

) (2015). There is nothing in the record showing a

basis for excusing any of the jurors based on potential bias or

exposure to the protestors outside the courthouse on the first day of

jury selection. The record shows that the protestors were limited in

number, and no evidence was presented to the trial court to show

that any of the jurors saw or interacted with any of these protestors.

Indeed, prior to the start of voir dire, the trial court asked the jury

pool if anything had occurred that morning that affected their ability

to be impartial, and the court received no response. Because there

is only trial counsel’s speculation that the presence of the protestors

affected the jurors and their ability to remain fair and impartial, the

trial court did not abuse its discretion in denying Cox’s motion to

excuse the entire jury pool.

     Judgment affirmed. All the Justices concur.



                                  25
DECIDED AUGUST 19, 2019 --- RECONSIDERATION DENIED SEPTEMBER
                              9, 2019.
     Murder. Lamar Superior Court. Before Judge Wilson.
     Miller & Key, J. Scott Key, Kayci N. Timmons, for appellant.
     Richard G. Milam, District Attorney, Cynthia T. Adams,
Elizabeth K. Bobbitt, 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.

                                26