306 Ga. 779
FINAL COPY
S19A0913. RICHARDS v. THE STATE.
BENHAM, Justice.
Appellant Abijah Richards was convicted of malice murder and
associated offenses arising out of the shooting death of Leevon
Daniels.1 On appeal, Appellant claims only that trial counsel was
ineffective. Finding no error, we affirm.
Viewed in a light most favorable to the verdicts, the evidence
1 In March 2016, a DeKalb County grand jury indicted Appellant,
Monolito Walker, and Mohamed Kamara on the charges of malice murder,
felony murder predicated on aggravated assault, aggravated assault, armed
robbery, and possession of a firearm during the commission of a felony.
Pursuant to an agreement with the State, Walker and Kamara pled guilty to
voluntary manslaughter as a lesser offense of malice murder. Appellant was
tried alone from October 30 to November 3, 2017, and a jury returned guilty
verdicts on all counts. On November 3, 2017, Appellant was sentenced to serve
life in prison for malice murder, a consecutive ten-year term in prison for
armed robbery, and a consecutive five-year term in prison for possession of a
firearm during the commission of a felony; the other counts were vacated by
operation of law or merged for sentencing purposes.
On November 3, 2017, Appellant filed a motion for new trial, which was
amended in late November 2017. Following a hearing, the trial court denied
the motion as amended on December 31, 2018. Appellant filed his notice of
appeal on January 30, 2019; this case was docketed to the April 2019 term of
this Court and thereafter submitted for a decision on the briefs.
adduced at trial established as follows. On the evening of May 2,
2015, Appellant and co-indictee Mohamed Kamara set out in an
SUV to find a club or party to attend. The pair encountered co-
indictee Monolito Walker, along with Dawson Brown, Christay
Eady,2 and Torrance Chaney at a gas station, and the group of six
departed in the vehicle; Kamara drove, while Appellant, who was
armed with a nine-millimeter Glock handgun, rode in the passenger
seat. After being unable to get into a party because they were under
age, the group drove to the Lithonia area of DeKalb County and
searched for unlocked cars to steal from.
While riding around the area, Appellant saw the victim
standing on the side of the road holding an iPhone and decided to
rob him. Acting on Appellant’s instruction, Kamara turned around
and stopped the vehicle. After exiting the SUV, Appellant and
Walker approached the victim and demanded his phone; the victim
threw the phone at Walker, after which Appellant shot the victim.
The victim was later discovered dead from blood loss as the result of
2 Eady died before Appellant’s trial.
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a gunshot wound caused by a bullet fired from a nine-millimeter
Glock pistol.
At trial, co-indictees Kamara and Walker testified that
Appellant instigated the robbery and was the triggerman, and
Brown and Chaney testified that, when Appellant returned to the
vehicle, he bragged about having shot the victim.
1. Though not raised by Appellant as error, in accordance with
this Court’s general practice in appeals of murder cases, we have
reviewed the record and find that the evidence, as summarized
above, was sufficient to enable a rational trier of fact to find
Appellant guilty beyond a reasonable doubt of the crimes of which
he was convicted. Jackson v. Virginia, 443 U. S. 307 (
99 SCt 2781,
61 LE2d 560) (1979).
2. Appellant argues on appeal that trial counsel was ineffective
by failing to object to hearsay testimony from an investigator and by
failing to object to emotional character testimony concerning the
victim. The trial court concluded that trial counsel’s decisions were
strategic and, even if they were not, that any deficient performance
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was not prejudicial. We agree.
To succeed on his claims of ineffective assistance, Appellant
bears the heavy burden of showing “both that his counsel performed
deficiently and that, but for the deficiency, there is a reasonable
probability that the outcome of his trial would have been more
favorable.” Slaton v. State, 303 Ga. 651, 652 (
814 SE2d 344) (2018).
See also Strickland v. Washington,
466 U. S. 668, 687, 694 (
104 SCt
2052, 80 LE2d 674) (1984).
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. Courts reviewing
ineffectiveness claims must apply a strong presumption
that counsel’s conduct fell within the wide range of
reasonable professional performance. 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. 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.
(Citation and punctuation omitted.) Slaton, 303 Ga. at 652-653. “In
reviewing the trial court’s decision, we accept the trial court’s factual
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findings and credibility determinations unless clearly erroneous, but
we independently apply the legal principles to the facts.” (Citations
and punctuation omitted.) Wright v. State, 291 Ga. 869, 870 (
734
SE2d 876) (2012).
(a) Appellant first contends that trial counsel was ineffective
in failing to object to hearsay testimony adduced during the State’s
examination of Sergeant Vickie Logan, as well as eliciting additional
hearsay testimony from Sergeant Logan on cross-examination. On
direct examination, Sergeant Logan testified concerning the process
of her investigation and what she learned from interviewing the
various occupants of the SUV. In relevant part, Sergeant Logan
testified that: following information from a tipster, she interviewed
Eady, who placed himself in the SUV and provided the names of the
other occupants, including co-indictee Walker; she interviewed
Walker, who reported that he exited the vehicle with Appellant, that
the pair robbed the victim, and that Appellant shot the victim; she
interviewed Brown, who reported that he had been asleep in the
SUV, that he was awoken by a gunshot, that he observed Walker
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and Appellant return to the vehicle, and that he heard the pair
bragging about the killing; Brown and Eady identified both the SUV
and co-indictee Kamara from a photograph; and Walker identified
Appellant from a photograph. On cross-examination, trial counsel
elicited further testimony from the sergeant concerning her
discussions with Eady.
At the hearing on Appellant’s motion for new trial, trial counsel
testified that it was a strategic decision to permit Sergeant Logan to
testify to the hearsay statements. Trial counsel explained that, at
the time of Sergeant Logan’s testimony, Eady was dead and none of
the other witnesses had yet testified; the defense understood that
the State’s entire case was based on witness testimony, and trial
counsel planned to use the sergeant’s testimony as a means to create
and highlight inconsistencies amongst the witnesses’ various
accounts and, ultimately, to sow doubt as to what occurred on the
night in question. The trial court credited trial counsel’s testimony
and concluded that trial counsel’s strategy was reasonable.
Though Appellant claims that this strategy ended up
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bolstering the testimony from other witnesses, “[c]ounsel’s
reasonableness is evaluated in conjunction with the attendant
circumstances of the challenged conduct . . . with every effort made
to eliminate the distorting effects of hindsight.” (Citation and
punctuation omitted.) Davis v. State, 306 Ga. 140, 143-144 (3) (
829
SE2d 321) (2019). “Thus, deficiency cannot be demonstrated by
merely arguing that there is another, or even a better, way for
counsel to have performed.” Id. at 144. As the trial court noted in its
final order, the two attorneys who represented Appellant at trial
“had a difficult task and . . . they did the best they could with the
evidence they had.” We agree with the trial court that trial counsel
did not perform deficiently in this regard. See Marshall v. State,
299
Ga. 825, 828 (2) (b) (
792 SE2d 350) (2016) (recognizing that trial
counsel’s decision not to object to hearsay testimony may constitute
a strategic decision); Green v. State,
291 Ga. 579, 580 (2) (
731 SE2d
359) (2012) (reasonable trial strategy for trial counsel not to object
where he “knew the eyewitness would be testifying herself . . . and
wanted to be able to show inconsistencies in her statement”).
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(b) Appellant next claims that trial counsel was ineffective for
failing to object to testimony concerning the victim’s good character.
Specifically, the jury heard testimony from Phelefhelia Rambali, a
friend of the victim, that he “was a really nice person. He was a
sweetheart. And the fact that he died like that, he didn’t deserve
it.” Lauren Fordyce, the victim’s niece, testified that the victim had
a “bubbly” personality and that, despite his lifelong promise, he
would not now be able to sing at her wedding.
At the hearing on the motion for new trial, counsel testified
that she did not object to the testimony, though emotional and
perhaps irrelevant, because the “neutral testimony” did not speak to
Appellant’s involvement in the murder. Trial counsel also explained
that Rambali and Fordyce were the State’s first two witnesses, and
counsel was concerned that objections during this testimony might
not be well received by the jury; according to counsel, she decided to
get through the testimony without drawing attention to it and to
keep the trial moving. In its order denying Appellant’s motion for
new trial, the trial court credited trial counsel’s testimony and
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determined that the decision to forgo objecting constituted a
reasonable trial tactic. We agree with the trial court’s conclusion.
See Kilpatrick v. State, 276 Ga. 151, 152-153 (2) (
575 SE2d 478)
(2003) (holding that it was a reasonable trial tactic for counsel to
forgo objecting to questionable testimony from the victim’s mother
to avoid appearing “insensitive” in front of the jury where counsel
deemed that such an objection was not “crucial” to the defense).
Judgment affirmed. All the Justices concur.
DECIDED SEPTEMBER 9, 2019.
Murder. DeKalb Superior Court. Before Judge Coursey.
Daniel H. Petrey, for appellant.
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Sherry Boston, District Attorney, Deborah D. Wellborn, Peter K.
Johnson, Roderick B. Wilkerson, Joshua M. Geller, Assistant District
Attorneys; Christopher M. Carr, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior
Assistant Attorney General, for appellee.
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