Gray v. State

FINAL COPY

                   S20A0884. GRAY v. THE STATE.


      NAHMIAS, Presiding Justice.

      Appellant Roshun Gray was convicted of malice murder and

two firearm offenses in connection with the shooting death of

Ferderian Bennett. In this appeal, Appellant contends that he was

legally incompetent to stand trial and that his trial counsel provided

ineffective assistance by failing to investigate his incompetency.

Both of those claims are meritless, so we affirm.1


      1 Bennett was killed on January 14, 2012. In August 2012, a Fulton

County grand jury indicted Appellant for malice murder, two counts of felony
murder, aggravated assault, possession of a firearm during the commission of
a felony, and possession of a firearm by a convicted felon. In February 2015,
Appellant was reindicted for those same crimes. At a trial from June 1 to 5,
2015, the jury found Appellant guilty of all charges. The trial court sentenced
him to serve life in prison for malice murder and five consecutive years for each
of the firearm counts. The aggravated assault count merged into the malice
murder conviction. Although the trial court also purported to merge the felony
murder counts, those counts were actually vacated by operation of law. See
Malcolm v. State, 

 (

) (1993). Through new
counsel, Appellant filed a timely motion for new trial in July 2015; he then
obtained different counsel, who amended the motion in September 2017 and
January 2018. After an evidentiary hearing in May 2019, the trial court denied
the motion in October 2019. Appellant filed a timely notice of appeal, and the
case was docketed to this Court’s April 2020 term and submitted for decision
on the briefs.
     1. Viewed in the light most favorable to the verdicts, the

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

night of January 14, 2012, Appellant went to a club in Atlanta with

his brother Antoninne Sagoes and Sagoes’s brother-in-law Jeremy

White. White had fought with Bennett, the owner of the club, outside

the club earlier that night. After Bennett came outside and argued

with White again, two witnesses saw Appellant, who was a convicted

felon, pull out a gun and fire a shot toward Bennett. One of the

witnesses saw Appellant fire a second shot before he and his

associates fled.

     Bennett, who had been shot once, was taken to a hospital,

where he soon died. Investigators did not find any weapons at the

crime scene, and several witnesses testified that they did not see

Bennett with a gun that night. Investigators later interviewed

Sagoes, who said that although he did not see Appellant shoot

Bennett, after the shooting he asked Appellant what happened, and

Appellant replied that he saw Bennett pull out a pistol and that

Appellant was not going to “lose another brother.” Records for a cell
phone associated with Appellant showed that six days after the

shooting, he sent a text message that said, “[E]verythang gone by

straight juss a matter of time . . . juss cant come back to atlanta its

a good reason i did wat i did it was either him or my bra.”

     Investigators arrested Appellant in Fort Valley more than four

months later. He did not testify at trial. His theories of defense were

that Sagoes or White could have shot Bennett; that the two

eyewitnesses’ accounts of the shooting were not credible; and that

the case was not adequately investigated.

     Appellant does not challenge the legal sufficiency of the

evidence supporting his convictions. Nevertheless, in accordance

with this Court’s customary 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 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)).2

      2. (a) In his January 2018 second amended motion for new

trial, Appellant claimed for the first time that his constitutional

right to due process was denied because he was legally incompetent

at the time of his trial in June 2015 and that his trial counsel

provided ineffective assistance by failing to investigate his

incompetency. To support those same two claims on appeal,

Appellant points to testimony he presented during the May 2019

hearing on the motion for new trial from his mother Barbara Banks,

his trial counsel Robert Citronberg, and expert forensic psychologist

Dr. Jamie Dickson.

      Banks testified that as a child, Appellant was hyperactive and

in special education classes, and that at about age nine, he was


      2 We remind litigants that the Court will end its practice of considering

the sufficiency of the evidence sua sponte in non-death penalty cases with cases
docketed to the term of court that begins in December 2020. See Davenport v.
State, 

 (4) (b) (

) (2020). The Court began
assigning cases to the December Term on August 3, 2020.
placed in the custody of the Division of Family and Children Services

(DFCS) and then treated at the Devereux Advanced Behavioral

Health facility until he was about 18 years old. Banks also testified

that as an adult, Appellant “was on disability” and did not work

because he was angry, hyperactive, and “couldn’t function right,”

and that he had a seizure disorder that “affect[s] his mental

functioning.” She claimed that she told Citronberg that Appellant

had “a mental case,” but Citronberg never procured Appellant’s

records.

     Citronberg, who is a very experienced criminal defense

attorney, testified on direct examination that before Appellant’s

trial, he spoke to Banks, who indicated that Appellant had been in

a special education class as a child; that he asked her to look for any

records she had regarding Appellant’s education; and that she could

not find any. Citronberg added that he may have called some schools

in search of the records, but that Banks never told him that

Appellant had been in DFCS’s care, so he did not contact DFCS.

     Dr. Dickson testified that Appellant’s records showed that
during his childhood, he had been diagnosed with Tourette’s

disorder, attention deficit hyperactivity disorder, and a mild

intellectual disability and had been prescribed antipsychotic

medication to treat paranoia, insomnia, and aggression; that he did

not complete high school; and that his score on an IQ test

administered when he was 15 years old was 55. Dr. Dickson

interviewed Appellant for a total of six hours in November 2017 and

January 2018. She administered an IQ test and concluded that

Appellant’s full scale IQ score was 47, “an extremely low range.” Dr.

Dickson also questioned Banks about Appellant’s adaptive

functioning and determined that his score was again in an

“extremely low range.” Dr. Dickson diagnosed Appellant with

schizophrenia and a moderate intellectual disability.

     Dr. Dickson administered a test for assessing legal competency

in individuals with intellectual disabilities and concluded that

Appellant’s score was consistent with the mean score of individuals

with intellectual disabilities who were found incompetent to stand

trial. She noted in her report, which was admitted into evidence,
that Appellant’s speech was not easily understood, and she testified

that he reported auditory and visual hallucinations and that his

responses to questions about his trial showed that he was not “able

to communicate factual events about his case” and did not

understand that he had been sentenced to life in prison. Dr. Dickson

also noted in her report that Appellant did not know the meaning of

several basic legal terms, including “guilty or not guilty,” “sentence,”

and “testify,” and did not understand the role of the jury, witnesses,

prosecutor, or judge.

     Dr. Dickson testified that she attempted to assess whether

Appellant was malingering about his reported mental health

symptoms, but she concluded that she could not obtain valid test

results because the assessment questions needed to be asked

verbatim and Appellant could not understand what she was asking.

Dr. Dickson testified on cross-examination that she considered

administering a test to determine cognitive malingering, but that

none of those types of tests are validated for individuals with

intellectual disabilities. In her report, Dr. Dickson said that
Appellant appeared to put forth his maximum effort on the IQ test

and that “it is unlikely that [Appellant] was exaggerating the extent

of any of his mental health conditions.” Based on her evaluation, Dr.

Dickson concluded that Appellant would not have been able to

reasonably assist his attorney during trial; that he would not have

been able to comprehend his own rights at trial; and that it was

“highly unlikely that he would have been competent” at the time of

his trial.

      To rebut Dr. Dickson’s conclusion, the State presented expert

testimony from clinical psychologist Dr. Glenn Egan, who conducted

a competency evaluation of Appellant in September 2018. Dr. Egan

testified that based on the evaluation and several tests he

administered to Appellant to assess malingering, he concluded that

Appellant was “trying to look” intellectually and psychiatrically

disabled.3 Dr. Egan acknowledged that Appellant may have a mild


      3 Dr. Egan acknowledged on cross-examination that two of the tests for

malingering that he administered had not been validated for intellectually
impaired individuals, but he explained that Appellant’s scores on those tests
were not borderline, indicating that Appellant was exaggerating his
impairments rather than misunderstanding the tests’ questions.
intellectual disability but explained that an individual could easily

“fake” a low IQ score. Dr. Egan also said that there is a “probable

likelihood” that Banks exaggerated Appellant’s impairments when

she answered questions about his adaptive functioning. Dr. Egan

concluded that based on all of the evidence, Appellant was

competent at the time of his trial.

      The State also offered a substantial amount of other evidence

to rebut Appellant’s claim that he was incompetent at the time of

his trial. Trial counsel Citronberg testified on cross-examination

that he and Appellant were able to communicate with each other

about the case; that it appeared that Appellant understood those

communications; that he had arranged for competency evaluations

in other criminal cases; and that he would have filed a motion to

determine Appellant’s competency if Appellant had not understood

their communications. Citronberg also testified that Appellant

understood the charges against him and the consequences of going

to trial; that Appellant was capable of assisting in his defense; and

that at the time of trial, Citronberg did not believe that Appellant
was incompetent. In addition, two prosecutors on Appellant’s case

testified that there was no indication during trial that he was

incompetent.

     Appellant’s jail and prison records showed that he was not

prescribed any psychotropic medication while he was incarcerated

before and during his trial. The State also introduced into evidence

a report from a routine assessment by a mental health associate at

the Fulton County Jail five days after Appellant’s trial ended. The

report said that Appellant had no noted psychosis and “appropriate

thought content, tight associations, and a pleasant affect,” and that

Appellant said that his family was “keep[ing] on [his] lawyer to

make sure he get[s] an appeal.” In September 2018, Appellant told

a prison counselor that he had been sentenced for a “murder that

did not involve him” and that he was “working with his lawyer to get

his overturn.” In addition, the State introduced into evidence

documents relating to Appellant’s 1998, 2004, 2005, and 2007 guilty

pleas to various crimes; the transcripts of the guilty plea hearings

give no indication of incompetence, and during one of the hearings
Appellant asked the trial court if it could “reinstate me on my

probation [for a probation violation in another case] . . . or try to get

me another court date.” The State also tendered an excerpt from

Appellant’s trial transcript in which he answered without difficulty

a series of the court’s questions about whether he wanted to testify.

     Finally, the State tendered into evidence audio recordings and

transcripts of dozens of phone calls Appellant made while he was

incarcerated after trial. During several of the calls, Appellant

mentioned going to court and asked his mother Banks to call his

lawyer or to retrieve “paperwork” from the Social Security

Administration and Devereux. During one call, he mentioned

wanting to “get rid of [his] life sentence” or have it “reduce[d]”;

during another, he advised Banks not to get upset on the stand

“[b]ecause they [are] going to keep asking you the same question [in]

different ways,” adding that “my lawyer probably already told you

about that though.” Another call showed that when Banks began

talking about the facts of Appellant’s case, Appellant said, “[W]e

ain’t gonna talk about that on the phone.” Dr. Egan testified that
Appellant’s discussions during the phone calls were not consistent

with an IQ score of 47 and that the calls showed that Appellant had

the ability to recall events and “understood what he was facing.”

     In its order denying Appellant’s amended motion for new trial,

the trial court found that Appellant was legally competent at the

time of his trial. The court noted in particular that although the

evidence admitted at the hearing on the motion suggested that

Appellant “may have learning and . . . behavioral difficulties, the jail

phone calls presented by the State demonstrate [his] keen

understanding of his legal situation and involvement in the

handling    of   his   case”   and   that   nothing    in   Appellant’s

communications with the court throughout his case “gave rise to a

concern about his competency.” The trial court also ruled that

Appellant’s trial counsel did not provide ineffective assistance.

     (b) Appellant claims first that the trial court erred by

concluding that he was competent when he stood trial in June 2015.

We disagree.

      “[T]he constitutional guarantee of due process forbids the
conviction of [a defendant] who is incompetent.” Humphrey v.

Walker, 

 (

) (2014). But “‘[t]he threshold

for competency is easily met in most cases,’” as the test for

competency is merely whether at the time of trial the defendant is

capable of understanding the nature and object of the proceedings,

comprehends his own condition in reference to those proceedings,

and is able to assist his counsel in providing a proper defense. Sims

v. State, 

 (

) (2005) (citation

omitted). When a finding of competency is challenged on appeal, the

question is whether, “after reviewing the evidence in the light most

favorable to the State, a rational trier of fact could have found that

the defendant failed to prove by a preponderance of the evidence

that he was incompetent to stand trial.” 

. See also Traylor

v. State, 

 (

) (2006) (holding that

when a defendant raises for the first time in a motion for new trial

a substantive due process claim based on his alleged incompetency

at the time of his trial, he must prove by a preponderance of the

evidence that he was in fact incompetent at that time).
      Appellant argues that the trial court erred by finding that he

had not met his burden of proving that he was incompetent at the

time of his trial because Banks’s and Dr. Dickson’s testimony about

Appellant’s impairments was more credible than Dr. Egan’s

testimony that Appellant was malingering. But the credibility of the

witnesses at the motion for new trial hearing was for the trial court

to determine, and the court was entitled to credit Dr. Egan’s opinion.

See, e.g., Tye v. State, 

 (

) (2016)

(“[I]t was for the [trial] court, as fact finder, to judge the credibility

of the opposing expert witnesses [regarding the appellant’s

competency].”).4

      Moreover, the trial court’s conclusion was supported by

substantial evidence other than Dr. Egan’s testimony. Appellant’s



      4 Citing Sims, in which we held that the evidence presented at Sims’s

competency proceeding showed that he was incompetent to stand trial,
Appellant notes that his score of 47 on the IQ test that Dr. Dickson
administered approximates Sims’s IQ of 45-46. See 

. But “a low
IQ score alone is just one indicia, not a determinative finding, that a defendant
is unable to stand trial.” 

. In any event, Sims is factually
distinguishable from Appellant’s case, because none of the expert witnesses
who evaluated Sims opined that he had exaggerated his cognitive
impairments. See 

.
experienced trial counsel and two prosecutors on his case saw no

indications before or during trial that Appellant was incompetent,

nor was any issue of Appellant’s competency raised in his four prior

criminal cases. The trial court noted that its communications with

Appellant raised no concern about his competence during the trial,

and Appellant does not argue that the court should have conducted

a sua sponte inquiry into his competency. See Biggs v. State, 

 (

) (2007) (explaining that a defendant’s right

to procedural due process is violated when the trial court fails to sua

sponte hold a competency hearing after information that raises a

bona fide doubt about the defendant’s competence becomes known

to the court before or during trial).

     In addition, Appellant did not appear incompetent during his

post-trial interactions with jail and prison personnel, and his

comments to them demonstrated his understanding that he had

been sentenced for murder and that he was working with his lawyer

to appeal his convictions. Perhaps most telling, as the order denying

the motion for new trial points out, the recordings of the jail phone
calls showed that Appellant understood his legal situation and was

actively assisting his post-conviction counsel in preparing for the

motion for new trial proceedings. Viewed in the light most favorable

to the State, the evidence presented at the motion for new trial

hearing was easily sufficient to authorize a rational trier of fact to

conclude that Appellant failed to prove by a preponderance of the

evidence that he was incompetent to stand trial. See, e.g., Tye, 

; Slaughter v. State, 

 (

)

(2013). Accordingly, this claim fails.

     (c) Appellant’s other claim is that his trial counsel Citronberg

provided ineffective assistance by failing to investigate his

incompetency. To prove this claim, Appellant must show both that

his counsel’s performance was professionally deficient and that, but

for the deficient performance, there is a reasonable probability that

the outcome of the proceeding would have been different. See

Strickland v. Washington, 

 (

, 80

LE2d 674) (1984). See also Wiggins v. Smith, 

(

, 156 LE2d 471) (2003). We need not address both
parts of this test if Appellant makes an insufficient showing on one.

See Strickland, 

.

     Pretermitting whether Citronberg performed deficiently by

failing to explore the issue of Appellant’s incompetency, Appellant

has not met his burden of showing a reasonable probability that an

investigation would have resulted in his being found incompetent to

stand trial. We presume that had Citronberg investigated

Appellant’s incompetency and presented evidence in support of his

claim at a pretrial competency hearing, it would have been the same

evidence that Appellant’s new counsel presented at the motion for

new trial hearing. See Scott v. State, 

 (

) (2017) (“[A] claim of prejudice from deficient performance fails

as speculative unless the defendant produces or proffers the

evidence that competent performance allegedly would have

produced.”). See also Martin v. Barrett, 

 (

) (2005). As we explained above, the evidence presented at

the hearing was sufficient to support a rational finding that

Appellant was competent to stand trial. Appellant has therefore
failed to show that but for Citronberg’s failure to investigate, there

is a reasonable probability that he would have been found

incompetent at the time of his trial. See Scott, 

.

     Judgment affirmed. All the Justices concur, except Warren, J.,
not participating.



                   Decided September 28, 2020.

     Murder. Fulton Superior Court. Before Judge Krause.
     Stephen R. Scarborough, 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, Alex M. Bernick, Assistant Attorney General, for appellee.