Redding v. State

FINAL COPY

                S19A1302. REDDING v. THE STATE.


      NAHMIAS, Presiding Justice.

     Appellant Kerri Redding was convicted of malice murder and

other crimes in connection with the shooting death of Christopher

Kenyatta. Appellant contends that his trial counsel provided

ineffective assistance by failing to raise the possible biases of two

witnesses and by failing to object to certain testimony from the lead

detective. Appellant also claims that the trial court erred by not

allowing him to impeach an out-of-court declarant with a certified

copy of the declarant’s conviction. We see no reversible error, so we

affirm.1


     1 Kenyatta was killed on July 6, 2016. On March 28, 2017, a DeKalb

County grand jury indicted Appellant for malice murder, felony murder,
aggravated assault, and possession of a firearm during the commission of a
felony. His trial began on December 4, 2017, and on December 8, the jury found
him guilty of all charges. On December 12, the trial court sentenced Appellant
to serve life in prison for malice murder and five consecutive years for the
firearm offense. The felony murder count was vacated by operation of law, and
the aggravated assault count merged. Appellant filed a timely motion for new
trial, which he later amended through new counsel. After an evidentiary
      1. Viewed in the light most favorable to the verdicts, the

evidence at trial showed the following. In the spring of 2016,

Kenyatta lived in an apartment with his girlfriend Michelle

Alamonord. Appellant and his friend Christopher Gaskins often

stayed in an apartment next door. Kenyatta and Appellant were

friends, although they began getting into arguments as summer

approached.

      The first argument arose when Appellant refused to pay

Kenyatta $20 that Appellant owed him. Kenyatta asked Appellant

for the money on several occasions, which angered Appellant. In

early June, Appellant and Kenyatta argued again after Kenyatta

drank two of Appellant’s beers, but refused to pay Appellant for the

entire six-pack. Appellant became so mad that he threatened to get

his gun.2 That night, Appellant told Derek White, a drug dealer who

also lived in the apartment complex, that Kenyatta planned to rob



hearing, the trial court denied the motion on December 17, 2018. Appellant
then filed a timely notice of appeal, and the case was docketed in this Court for
the August 2019 term and submitted for decision on the briefs.
      2 Several witnesses later testified that Appellant often carried a .22-

caliber handgun in his pocket.
                                       2
and beat up White. According to Alamonord, Appellant and

Kenyatta had actually planned to rob and beat up White together,

and Appellant told White that Kenyatta alone made the plan to get

back at Kenyatta after their argument about the beer.

     A few days before the murder, Appellant told Alamonord that

Kenyatta had cheated on her. Appellant also said, “F**k Chris

[Kenyatta], I don’t like him.” Alamonord asked Kenyatta about his

cheating, and he responded, “I know exactly who told you that.” Two

days later, Kenyatta confronted Appellant; they argued and

Kenyatta told Appellant, “if you want to fight, we can fight or else

since you have that little gun, you can go ahead and use it.”

     On the night of July 5-6, 2016, Kenyatta was hanging out with

his friend Justin King, Appellant, Gaskins, and a few other people

at the apartment where Appellant and Gaskins stayed. According to

King, around 2:30 or 2:45 a.m., Kenyatta told King, Appellant, and

Gaskins that he was going to the store to buy some cigarettes and

snacks, and King asked Kenyatta to buy him some chips and a drink;

King gave Kenyatta his credit card and Kenyatta left; and Appellant

                                  3
and Gaskins left the apartment five to ten minutes later.

     Around 8:00 a.m., a police officer responded to a 911 call

reporting a body lying on a trail through the woods between the

apartment complex and a nearby convenience store. The officer

found Kenyatta, who had died from multiple gunshot wounds, lying

face up on the trail. He had King’s credit card, and a bag that

contained chips and a drink was beside him on the ground.

     That night, Appellant and Gaskins went to Gaskins’s sister

Shannon Johnson’s house, where they also sometimes stayed.

Appellant smirked as he told Johnson that “it was messed up how

they did [Kenyatta].” The next morning, Appellant left Johnson’s

house; he did not take with him most of the belongings that he

usually kept at the house, and Gaskins and Johnson did not see

Appellant after that.

     Detectives interviewed Gaskins on July 17, December 11,

December 16, and December 20, 2016. During the first three

interviews, Gaskins said that Kenyatta left Gaskins and Appellant’s

apartment in the early morning hours on July 6; that Appellant,

                                 4
Gaskins, and Gaskins’s girlfriend also left; that Gaskins’s girlfriend

gave Appellant a ride to his grandmother’s apartment, which was in

the same complex; and that the girlfriend then dropped off Gaskins

at Johnson’s house. Gaskins’s final interview on December 20 was

audio recorded and later played for the jury; during that interview,

Gaskins admitted that Appellant had returned to their apartment

sometime later on the morning of the shooting and told Gaskins that

Appellant got into a struggle with Kenyatta “in the cut” and shot

him.3 After the interview, the police charged Gaskins with making

false statements. Later that day, police obtained an arrest warrant

for Appellant, and three days later, he was arrested at an apartment

complex in Auburn, Alabama.

     At trial, Gaskins recanted his December 20 statement and

claimed that the story he told in his first three interviews was true.

Johnson also testified for the State; she said that at some point after

Kenyatta’s murder, Gaskins told her that Appellant killed


     3 A detective testified that “the cut” referred to the trail through the

woods where Kenyatta’s body was found.

                                     5
Kenyatta. Gaskins also told her that blood got on Appellant’s

clothing when Kenyatta was shot.4 In addition, a friend of Johnson

testified that Johnson told her that Appellant and Gaskins came to

Johnson’s house shortly after the shooting and that their clothes

were bloody. According to the friend, either Johnson, Appellant, or

Gaskins disposed of the bloody clothes.5

      The medical examiner who performed Kenyatta’s autopsy

testified that Kenyatta was shot five times — once each in the hand,

chest, abdomen, back, and neck. The medical examiner removed four

.22-caliber bullets from Kenyatta’s body and testified that the

location of the bullet wound on Kenyatta’s hand was consistent with

his defending himself against an attack. A firearms examiner

testified that all four bullets were fired from the same .22-caliber

gun and explained that various kinds of .22-caliber guns could have



      4 Johnson claimed that Gaskins’s statements were based on things he

had heard in the neighborhood, not his direct knowledge. Gaskins also testified
that he told Johnson that Appellant killed Kenyatta because he assumed it,
“based off of [their] verbal disagreement[s].”
      5 Johnson testified that she did not see Appellant or Gaskins wearing

bloody clothes, did not help dispose of the clothes, and did not tell her friend
that she disposed of the clothes.
                                       6
fired the bullets, including a Mossburg .22 rifle, a Savage .22

Magnum rifle, a Rome .22 revolver, or a North American Arms .22

Magnum revolver. Because there were no shell casings at the scene

of the crime and revolvers do not eject casings, detectives concluded

that the gun was most likely either a Rome or a North American

Arms revolver. The State presented evidence that in September

2015, Clayton County sheriff’s officers confiscated a North American

Arms .22 Magnum revolver from Appellant during a traffic stop. The

gun was returned to Appellant in April 2016, about three months

before Kenyatta’s murder.

     Appellant did not testify. His defense theory was that the

apartment complex and trail where Kenyatta was shot were in a

high-crime area and that someone else shot him. To support that

theory, Appellant pointed to a tip to investigators from a woman who

lived near the trail; the woman said that she heard gunshots and

female voices around the time Kenyatta was killed. Appellant also

argued that White, after learning from Appellant that Kenyatta

planned to rob him, could have killed Kenyatta.

                                 7
     Appellant does not challenge the legal sufficiency of the

evidence supporting his convictions. Nevertheless, in accordance

with this Court’s practice in murder cases, we have reviewed the

record and conclude that, when viewed in the light most favorable

to the verdicts, the evidence presented at trial and summarized

above was sufficient to authorize a rational jury to find Appellant

guilty beyond a reasonable doubt of the crimes of which he was

convicted. See Jackson v. Virginia, 

 (

,

61 LE2d 560) (1979). See also Green v. State, 

(

) (2018) (“‘It is the role of the jury to resolve conflicts

in the evidence and to determine the credibility of witnesses, and

the resolution of such conflicts adversely to the defendant does not

render the evidence insufficient.’” (citation omitted)).

     2. Appellant contends that his trial counsel provided ineffective

assistance in two ways. To prevail on these claims, Appellant must

prove both that his counsel’s performance was professionally

deficient and that he was prejudiced as a result. See Strickland v.

Washington, 

 (

, 80 LE2d 674) (1984).

                                   8
To establish deficient performance, Appellant must show that

counsel performed his duties in an objectively unreasonable way,

considering all the circumstances and in the light of prevailing

professional norms. See 

.

     This is no easy showing, as 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.”

Brown v. State, 

 (

) (2017) (citations

omitted). To prove prejudice, Appellant must demonstrate a

reasonable probability that, but for counsel’s deficiency, the result

of the trial would have been different. See Strickland, 

. We need not address both parts of the Strickland test if

Appellant makes an insufficient showing on one. See 

.

     (a) Appellant first claims that his trial counsel provided

ineffective assistance by failing to adequately cross-examine King

and Gaskins about their possible biases in testifying for the State.
                                 9
Appellant argues that his counsel should have questioned those two

witnesses about the possible prison sentences they were facing in

connection with criminal charges brought before they testified. But

Appellant has not proved that his trial counsel performed

deficiently.

     On direct examination, King testified that he was charged with

burglary in 2015; that he pled guilty to that crime under the First

Offender Act in early 2017; and that he was on probation at the time

of trial. Appellant’s counsel began cross-examination of King by

referencing his probation and asking if there were warrants for his

arrest and if he was aware that he was being taken into custody.

King replied that there had been a “misunderstanding” with his

probation officer but that everything “should be worked out.”

Counsel again asked King if he had been taken into custody just

before he testified, and King answered, “Right.” Counsel then moved

on to other questions.

     Appellant now asserts that his trial counsel should have asked

King about the 20-year maximum sentence he could have received

                                10
for burglary, because that charge was pending when the police

interviewed him about Kenyatta’s murder and because he may have

been facing a revocation of his first-offender probation when he

testified. Appellant has not shown, however, that King had any sort

of plea deal with the State — on the burglary charge or the potential

probation violation — in exchange for his statement to the police or

his testimony at trial. Thus, the trial court could have prohibited

Appellant’s trial counsel from cross-examining King about his

possible sentence. See, e.g., Smith v. State, 

(

) (2017) (holding that the trial court did not abuse its

discretion by prohibiting trial counsel from cross-examining the

defendant’s co-indictee about his potential life sentence for murder,

because he had not obtained a concrete plea deal from the State in

exchange for his testimony). Because Appellant has not established

that the trial court would have allowed his counsel to question King

about his possible sentence, he has not established that counsel

performed deficiently by failing to ask those questions. See

Flannigan v. State, 

 (

) (2019)

                                 11
(concluding that trial counsel did not perform deficiently by failing

to cross-examine the defendant’s co-indictee about the possible life

sentences he faced, as the trial court could have exercised its

discretion to prohibit counsel from asking those questions because

the co-indictee did not have a concrete plea deal with the State in

exchange for his testimony).

     Moreover, trial counsel elicited King’s testimony that King had

been arrested for a possible probation violation and also attempted

to cast doubt on King’s credibility by suggesting that he had been

using drugs on the night of the murder and by emphasizing that

King had been close with Kenyatta but not with Appellant. Trial

counsel’s decision to forgo cross-examining King about his possible

prison sentence — a line of questioning that the trial court could

have prohibited — and to instead challenge King’s credibility in

other ways was a reasonable strategy. See, e.g., Romer v. State, 

 (

) (2013) (explaining that “‘[t]he extent of

cross-examination is a strategic and tactical decision’” (citation

omitted)). Counsel’s performance was not deficient in this respect,

                                 12
and Appellant cannot prevail on this claim.

     Appellant similarly argues that his trial counsel should have

cross-examined Gaskins about the possible prison sentence he faced

in connection with his charge of making false statements to the

police during his interviews about the murder. See OCGA § 16-10-

20 (establishing a sentence of one to five years in prison for making

a false statement). As with his claim related to King, Appellant has

not shown that Gaskins had a plea deal with the State in exchange

for his testimony, so he cannot demonstrate that the trial court

would have allowed Appellant’s counsel to question Gaskins about

the possible sentence he faced if convicted of the pending charge. See

Flannigan, 

.

     In addition, trial counsel’s decision not to question Gaskins

about his possible sentence was reasonable, because the bulk of his

testimony was favorable to Appellant. See Gibson v. State, 

 (

) (2000) (concluding that trial counsel did not

perform deficiently by failing to object to testimony that benefitted

the defense). On cross-examination, counsel emphasized that during

                                 13
Gaskins’s first three police interviews, he did not implicate

Appellant in the murder. Only during the fourth interview did

Gaskins assert that Appellant had said that he shot Kenyatta, and

counsel elicited Gaskins’s testimony that his fourth interview

statement was not true and that he accused Appellant only because

the police threatened Gaskins and his sister with criminal charges.

Counsel also questioned Gaskins about the false statements charge,

and Gaskins testified that the police charged him with that crime

because of a mere “discrepancy,” as Gaskins told them in one

interview that he and Appellant left the apartment around the same

time as Kenyatta but claimed in a later interview that he and

Appellant left about 30 minutes later. Trial counsel’s decision not to

undermine testimony that largely benefitted Appellant with

questions that the trial court could have disallowed was an entirely

reasonable strategy. Thus, Appellant has not shown that his counsel

performed deficiently with regard to this claim either.

     (b) Appellant next contends that his trial counsel provided

ineffective assistance by failing to object to testimony from the lead

                                 14
detective on the case about Appellant’s flight from the police. After

the State presented evidence that Appellant was arrested at an

apartment complex in Auburn, Alabama nearly six months after the

murder, the prosecutor asked the detective if “evidence of flight in

homicide cases” is “significant in investigations.” The detective

answered yes, and when the prosecutor asked why, he replied,

“Usually when a suspect is trying to avoid prosecution.”

     Appellant concedes in his brief that evidence of a defendant’s

flight from the police is “generally admissible as circumstantial

evidence of guilt.” Rowland v. State, 

, 65 n.4 (

) (2019). He argues, however, that his trial counsel should have

objected to the detective’s testimony because it was improper for a

witness to tell the jury that flight indicates guilt. But Appellant’s

counsel did not perform deficiently by deciding not to object, even if

an objection might have been made and sustained.

     To begin with, neither the prosecutor’s questions nor the

detective’s answers spoke in terms of guilt. Instead, the detective

simply expressed the truism that evidence of a homicide defendant’s

                                 15
“flight” usually indicates that he is “trying to avoid prosecution.” But

even if “trying to avoid prosecution” is understood as implying

consciousness of guilt, “‘any rational juror would have guessed that

(the detective) believed as much without being told.’” Thompson v.

State, 

 (

) (2018) (citation omitted).

Thus, the detective’s comment did not cause Appellant significant

prejudice. See 

 (“‘[S]uch comments upon the patently obvious

generally pose little, if any, danger of prejudice.’” (citation omitted)).

     Moreover, trial counsel’s decision not to object to these brief

and unremarkable comments was strategic. On cross-examination,

counsel elicited the detective’s admission that he did not know when

Appellant had moved to Alabama or if Appellant’s name was on the

lease for the apartment there. Counsel referenced the detective’s

earlier statement about flight to point out that Appellant could have

moved to Alabama on the day after the murder or shortly before he

was arrested almost six months later, and the detective then

acknowledged that he was not aware of any evidence, other than

Appellant’s being in Alabama when he was arrested, that showed he

                                   16
fled rather than simply moved away. During closing argument,

Appellant’s counsel again emphasized that the evidence did not

show that Appellant fled.

     Trial counsel’s decision not to object to the detective’s

testimony but rather to undermine it through cross-examination

and closing argument was reasonable. See Faust v. State, 

 (

) (2017) (“Whether to object during direct

examination or instead rely on cross-examination ‘falls within the

ambit of reasonable trial strategy.’” (citation omitted)); Lupoe v.

State, 

 (

) (2008) (concluding that trial

counsel’s decision not to object to a witness’s reading aloud from his

statement to the police was strategic, because during cross-

examination counsel used portions of the statement to undermine

the witness’s testimony). For these reasons, Appellant cannot

succeed on this ineffective assistance claim.

     3. As mentioned in Division 1 above, Appellant argued at trial

that a neighborhood drug dealer, Derek White, could have

committed the murder after being told by Appellant that Kenyatta

                                 17
planned to rob him. Appellant now contends that the trial court

erred by prohibiting him from impeaching White, who did not testify

at trial, with a certified copy of his 2007 conviction in New York for

second-degree criminal possession of a weapon. We disagree.

     At trial, the lead detective testified that he interviewed White

after the murder and that White said that Kenyatta told White that

Appellant planned to rob and possibly kill White. (As discussed

above, Kenyatta’s girlfriend Alamonord testified that Appellant told

White that Kenyatta planned to rob and beat up White.) Appellant’s

counsel asked the trial court’s permission to impeach White’s out-of-

court statement to the detective with a certified copy of White’s prior

conviction. See OCGA § 24-8-806 (“When a hearsay statement has

been admitted in evidence, the credibility of the declarant may be

attacked and, if attacked, may be supported by any evidence which

would be admissible for those purposes if the declarant had testified

as a witness. . . .”); Hawkins v. State, 

 (

) (2019). The court denied the request.

     Assuming without deciding that the trial court’s exclusion of

                                  18
the certified conviction was an abuse of discretion, it was harmless.

“‘The test for determining nonconstitutional harmless error is

whether it is highly probable that the error did not contribute to the

verdict.’” Winters v. State, 

 (

) (2019)

(citation omitted). Appellant’s counsel was permitted to elicit the

detective’s testimony that during the interview with White, White

admitted serving five-and-a-half years in prison in New York on a

weapons charge, so showing the jury a copy of that conviction would

have been essentially cumulative. In addition, the detective testified

that White was a drug dealer; that he admitted being at the

apartment complex near the time of the murder; and that the

detective nevertheless failed to investigate him as a suspect. Under

these circumstances, it is highly probable that the outcome of the

trial would not have been different if the trial court had admitted

the copy of White’s conviction. See, e.g., 

 (concluding that any

error in the trial court’s failure to admit a section of a GBI report to

impeach a witness’s credibility was harmless, given other evidence

that “placed the question of her credibility . . . squarely before the

                                  19
jury without the need for [the excluded evidence]”).

     Judgment affirmed. All the Justices concur.




                    DECIDED JANUARY 27, 2020.
     Murder. DeKalb Superior Court. Before Judge Flake.
     Zell & Zell, Rodney S. Zell, for appellant.
     Sherry Boston, District Attorney, Emily K. Richardson,
Deborah D. Wellborn, Vincent J. Faucette, Assistant District
Attorneys; Christopher M. Carr, Attorney General, Patricia B.
Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior

                                 20
Assistant Attorney General, Matthew B. Crowder, Assistant Attorney
General, for appellee.




                               21